CLAUSE 4.—(Liability of officer to maintain wife and children.) (Hansard, 26 March 1947)

§ Mr. S. Silverman
This Clause is intended to meet a point which I raised in the last Parliament about the difference in the machinery for enforcing maintenance orders in the case of officers and in the case of men. It used to be the case that where orders were obtained in the courts, the orders were satisfied by the Army authorities out of the man's pay, whereas in the case of officers, no matter how unworthy an officer's behaviour, no matter how he neglected his domestic obligations, and no matter how completely 1257 those facts were established to the satisfaction of a civil court and an order made, there were no means left of making an officer pay if he was unwilling to do so. That was wrong, and it ought to have been amended long ago. [Interruption.] If he was overseas, he could not be got at, but even if he was not overseas, it was very difficult. Certainly, the order could not be enforced against his pay as it could be in the case of a private soldier. I know of some cases where the man escaped completely the performance of a quite undoubted and undisputed obligation. This Clause attempts to put that right, but I am not quite satisfied either with what it does or the way in which it does it. I can make the point clearer by referring to the Memorandum to the Bill rather than to the Clause. The Clause is rather technically drafted, and the point appears more clearly in the Memorandum. Paragraph (a) of the Memorandum to this Clause says: The officer will be liable to maintain his wife and children (including illegitimate children) to the same extent as if he were a civilian, There then follow certain exceptions. Paragraph (d) states: Where arrears due under a maintenance or affiliation order have accumulated while the defendant was serving as an officer of the regular forces, he may not after the end of his service be committed to prison for nonpayment of the arrears unless the court is satisfied that he has the means to pay or has had the means to do so since the end of his service, and has failed to do so. Unless I am mistaken, there is a conflict between those two paragraphs, because the law as it would apply to a civilian—and paragraph (a) says that the officer shall be liable to the same extent as if he were a civilian—is that if an order is made against a civilian with regard to the maintenance of his wife and children, legitimate or illegitimate, and he does not comply with that order, he may as for contempt of court be committed to prison if it is shown that he had, at the time when the money was due, the means to pay it, and failed to do so. The law goes considerably beyond that, because one does not have to show any such thing; all one has to show is that the man did not, in fact, pay, and the court may send him to prison for not having paid, whether he had means or not; but I think the modern practice, whatever may be the strict letter of the law, would be that the court would be reluctant to send a man 1258 to prison except for wilful refusal to comply with the order of the court, and neglect to comply with an order of the court would not be wilful unless a man could have complied with it, and did not do so. That is all that it is necessary to prove in the case of a civilian—not merely that he has the money now, not merely that he did have it within some limited time, but that he had it at some time when the money was due, that he could within his means have observed the order, but did not do so. He may be then committed for contempt in default of payment.
But paragraph (d) is quite different. I have omitted paragraphs (b) and (c), but, in short, they provide something to which I do not object in the least; they say that while a man is actually serving, particularly if he is overseas, he ought not to be harassed and worried and the Services perhaps deprived arbitrarily of his services by interference from a civil court. Therefore, during the period of his service he cannot be got at. I make no complaint about that, because it is a necessary exception, but I think that if after he has left the Service it is established by evidence that his failure to comply with the order and to maintain his dependants was wilful, in that he had sufficient means to do it, but did not do it, he ought to be called upon at the end of his service to account for that wilful refusal. The Clause as it is now drawn exempts him from that.
If he is demobilised, then in spite of the fact that he had for years, while in receipt of good pay and allowances, wilfully neglected his domestic responsibilities, he would still be protected, although his service was ended. The order could not be enforced by imprisonment because of the fact that he had means during the period of his service. [Interruption.] If my hon. Friends will read further, they will see that it is only a difference of machinery and not of substance. If they will read paragraphs (b) and (c) they will find that the wife cannot herself go with the order to the Paymaster-General and say, "Satisfy this"; nevertheless, in spite of that, the deductions from his pay to satisfy these demands may still be made. What is intended by the Clause is not to be greatly criticised, but the point I am now on is one of substance and principle, that it gives to an officer quite unnecessary protection, such as he ought not to have. 1259 The officer ought not to be in any better position than a civilian would be in the same circumstances, except that the officer's military duties have to be correctly performed. When that condition is satisfied, the officer ought to be subject to the same duties as any other citizen in analogous circumstances.

§ The Chairman
It may be a convenience if I point out that the matter under discussion is clearly dealt with under Subsection (4). This may avoid the possibility of confusion arising from references to the Memorandum.

§ Sir Hugh Lucas-Tooth (Hendon, South)
The Clause refers to an officer who is a "putative father." The hon. Member for Nelson and Colne (Mr. S. Silverman) has claimed to be the father of this Clause. I want to substantiate my own claim in that respect. The hon. Member appears to be unaware that when the Bill came up for discussion last year there was a Clause in my name on the Order Paper to the same effect. I withdrew the Clause from the Order Paper on the undertaking from the Government that they would put down a similar Clause.

§ Mr. S. Silverman
I should be extremely sorry to limit the hon. Member's claim in this matter, but I would like to inform him that in the previous Parliament I put down an Amendment to precisely the same effect, and that I also withdrew it, as he did, on the assurance given by the then Secretary of State for War that something on similar lines would some day be included in the Bill. Perhaps we may agree jointly to share the paternity of the Clause and to see that it is now properly looked after.

§ Sir H. Lucas-Tooth
The only conclusion that I can come to now is that the hon. Member's efforts at paternity appear to have been less effective than mine. The Clause which I proposed was relatively short. Now that my offspring appears in the light of day, I am surprised to find that it is not one but triplets, or even quintuplets. The Government have, broadly speaking, carried out the intention which I had hoped to carry into effect.
There are a number of points to which I would now like to call attention, with 1260 the object of obtaining information. I appreciate that Subsection (2) follows closely the wording of the provision which covers the other ranks in the Army. It nevertheless seems that the wording may be defective. The phrase: when any order or decree is made under any Act should, by any ordinary construction, govern the whole Subsection. By such a construction, paragraph (b) would be covered by those governing words, and it would become effective only if an order had been made. I am satisfied that that is the intention of the Department and that that is the more natural construction to put upon the words. As it stands, the paragraph means that the jurisdiction of the Army Council to order maintenance would become effective not only after an order had been made, but after such an order has been sent, as contemplated in the earlier part of the Clause. I am sure of the intention of the Government, but I suggest that they should look at the wording again and amend it, if need be, at a later stage in the consideration of the Bill.
The next question is whether the Clause as it stands covers the case of the divorced wife. I have very little doubt that it is intended to cover that case. A number of officers have obligations to divorced wives. Payments to divorced wives are just as great as to those who have been deserted without divorce. I should like an assurance that the wording of the Clause is wide enough to cover such cases, even where there are no children. My next question concerns the use of the word "shall" in line 11. It will be seen that the wording is that such an order or decree "shall be sent to the Army Council." I am a little surprised at the Secretary of State for War using such an expression. When I was in the Army one of the first things I was taught was never to put orders in the passive voice but always to indicate clearly who was to carry out the order. The right hon. Gentleman has not indicated who is to carry out the instruction. Is this wording intended to put an obligation upon the bench of magistrates? Clearly it cannot be intended to put an obligation upon the wife. Who is it intended shall carry out this instruction? There should be an indication in the Subsection who is to undertake that obligation.
1261 My next point is that the second part of Subsection (2) provides that the Army Council may order a portion of an officer's pay to be appropriated and paid towards the maintenance of the wife and children of the officer, in the circumstances mentioned. The maximum portion which is permitted under the paragraph is three-sevenths of the officer's pay. I am not quarrelling with the general principle of the three-sevenths maximum, but there is a noticeable absence of any words covering the payment of Income Tax. I would like to know how it is contemplated that the Income Tax law empowering trustees and others to make payments of this kind is to operate in respect of payments made under the Clause. Will payments be made gross or net to the dependants? Will there be varying circumstances? If so, how is the calculation to be made? This is a matter of considerable interest to dependants. It means that if they are to get the payments net after the deduction of Income Tax at the standard rate of 9s. in the £, many dependants will be left virtually destitute until they can get a lump sum repayment at the end of the year. We ought to have some further explanation of this matter from the Government. Another question arising on the same point is whether the amount to be left in the pocket of the officer is to be gross or net. Is it intended that he shall have four-sevenths of his pay gross before any deduction is made for Income Tax? Or is it to be net, that is to say after the deduction of the tax which he would have to pay in any circumstances?
Next I wish to ask the right hon. Gentleman a question about allowances in a case such as I will outline. During the war, as the right hon. Gentleman will know, when a soldier was subjected to compulsory stoppage of pay in a case of this kind, he was eligible for an allowance equivalent to his family allowance. In order to meet his obligations to his divorced or separated wife, he was able to claim an amount equal to the amount which he would have had as family allowance if he were married in the ordinary way. That amount was given pro tanto, to satisfy his obligation to his dependants. Is it intended that the officer's married allowance shall be available to him pro tanto to satisfy the amount of the obligation placed on him by the Clause?
A further point which I wish to put to the right hon. Gentleman arises under 1262 Subsection (3). An officer who is liable to proceedings by his wife, or by a woman who has had a child, is protected from being sued if the officer's commanding officer certifies that the officer is under orders to proceed overseas. In the case of a wife, that is not a matter of great importance. She has her alternative remedy, if I am right in assuming that the opening words of Subsection (2) govern the whole of that Subsection. Even if she has not obtained an order from the court she can go to the Army Council direct, and get an order for maintenance, whereupon she will be in the same position as though she had gone to the court. When the officer comes out of the Army, in due course he will be back in this country in the ordinary way, and will be liable in the courts in the ordinary way.
I am concerned about the case of the officer who has an illegitimate child. If the woman by whom he had the child is to be prevented from taking appropriate action, other than by the machinery of Subsection (3), the probability is that there will be delay of two or three years before she can do anything about the matter at all. There will be very great hardship in such a case, because she will have to maintain the illegitimate child for two or three years without any means of redress against the father. In the second place, there may be much greater hardship. In affiliation proceedings, availability of evidence is of vital importance. After a delay of two or three years, people who had direct knowledge of the facts sometimes cannot be traced. Not only may the woman in that case lose two or three years' maintenance but she may be completely defeated in obtaining any redress against a clearly responsible father. I should be grateful if, when he replies to the Debate, the right hon. Gentleman would answer this question, and the other questions which I have asked.

§ Mr. Blackburn (Birmingham, King's Norton)
I first want to congratulate the Secretary of State for War on trying to tackle this problem, although I do not think he has solved it. Successive Conservative Governments for the last 50 years have not at all tackled the problem that an officer is able to get away with 1263 disgraceful conduct, when a soldier is unable to do so. My right hon. Friend deserves credit for trying to deal with it. Before going into the merits may I say it seems to me intolerable that the matter should be spread out over Clauses 4 and 5 of the Bill in a manner which makes it impossible for any of us to understand what it is all about. It seems to me that the Parliamentary draftsman in this case is trying to get away with far too much. I confess that although I have been engaged in a department of the War Office which had to construe this provision, as was the hon. Member for South Hendon (Sir H. Lucas-Tooth), neither of us seems to be very clear what it all means.
It seems to me that my right hon. Friend ought to consider why there should be any difference between the position of an officer and a private soldier. If a private soldier has an order made against him under Section 137 of the Army Act, why should not an officer have an order made against him under the same Section? I believe that great injustice is continuing to be worked under this legislation for this reason. I think the worst and most prominent case is where the wife of a private soldier or an officer is deserted by a man, who goes overseas, say, to Palestine or India. He then ceases to contribute to her maintenance and he has an absolute right to refuse on the ground that he has no intention of cohabitating with her again. That brings the allowance to an end. There is no method at all to deal with that case. It is quite true that the welfare officer is asked to see the man and discuss the matter with him, but if he says to his commanding officer, "I have no intention of resuming cohabitation," then all allowances to the wife cease forthwith. If that happens in the case of a soldier, the papers are sent to a branch, I think A.G.3, of the War Office and that branch considers straight away whether that soldier is justified in depriving his wife of her maintenance or not. Under Section 137 the War Office has a discretion to order the compulsory stoppage of pay against the soldier, if it considers that a grave injustice is being done.

§ Sir H. Lucas-Tooth
It is not Section 137 but Section 145.

§ Mr. Blackburn
I am grateful to the hon. Member for South Hendon (Sir H. Lucas-Tooth). My memory about the 1264 figures is wrong, but the point is that A.G.3 has still the power to grant a compulsory stoppage of pay but it has no power at all to grant a compulsory stoppage of pay in the case of an officer. Why should an officer not be in the same position as a private soldier? May I go a little further and say that it appears that under this Clause of the Bill there is going to be a power to grant compulsory stoppage, where there is already maintenance or some kind of order by a court. That is under Subsection 2 (b). That surely does not apply to these very complicated cases, where an officer goes overseas to serve in India or Palestine. It is then impossible for the wife to get any order against him at all. If he is serving on the North-West Frontier or in Palestine or in the desert there is no method by which the wife can get an order against him, and, therefore, she has no redress at all. What an extraordinary doctrine it is that while we are going to compel a private soldier to be honourable, we are not prepared to compel an officer to be honourable. That has been the case under successive Conservative Governments for generations, and I think it is time it was changed.

§ Earl Winterton
The hon. Member is very inaccurate. If he wants to say that this has been going on for many years he should say it has been going on under Conservative, Labour and Liberal Governments. He talks of 50 years of Conservative rule. If that had been the case, the country would not be in the state in which it is today.

§ Mr. Blackburn
I think the noble Lord is right up to a point, but I do not raise this matter in any frivolous way. I believe this illustrates a defect in the party opposite. A good Tory is one who can find a plausible excuse for doing nothing, and a bad Tory is the Tory who just says "No." I think that has always been the history of the party opposite.
I hope my right hon. Friend the Minister will recognise that this is a matter which requires immediate attention. I know that there are many cases of wives of officers who have not got any redress al all. I understand my hon. Friend the Member for Sparkbrook (Mr. Shurmer) has such a case and I think that the whole Clause should be reconsidered so that we may get it sensibly drafted. In the meantime it could be made to read so that an 1265 officer will be in all respects on the same footing as a private soldier.

§ General Sir George Jeffreys (Petersfield)
I fully concur with the hon. Member for King's Norton (Mr. Blackburn) when he says that it is high time that a provision to this effect should be inserted in the Army Act, because I know and I am certain other hon. Members also know of specific cases in which officers have very much neglected their domestic responsibilities. With reference to his remarks on the difference between officers and private soldiers in these matters, I should like to say that I know of cases where other ranks have been promoted to commissions, who while in the ranks had orders made against them. On being promoted, they promptly caused those orders to lapse. In other words they repudiated those orders.

§ Mr. Shurmer (Birmingham, Sparkbrook)
This is all the more reason for this change.

§ Sir G. Jeffreys
I am in agreement with the hon. Member and that is the argument I am proposing to develop. I personally can see no reason for the difference between officers and other ranks in this respect at the present day or at any other time. I suggest that one reason for that state of affairs is simply that there is, unfortunately, a very different standard in these days as regards domestic responsibilities and marital fidelity compared with what there was 50 years ago. I was a young officer in the Army in those days and I do not hesitate to say that one practically never heard of such cases at all. It is very different today and if I were going to develop the argument, I would say that it was partly due to the fact that the class of officer now in the Army is different from what it was in those days. There is every reason for this Clause at the present time. Whether it could be improved in wording I will not say, but I hope the Committee will pass it, because it is overdue.

§ Major Bruce (Portsmouth, North)
Clauses 4, 5 and 6 of this Bill seem to do the same thing as another Bill which is before this House and which relates to the Navy—the Naval Forces (Enforcement of Maintenance Liabilities) Bill, and I was a little struck following the remarks of my hon. Friend the Member for King's Norton (Mr. Blackburn) that 1266 the Army had not caught up with the Navy in this business. In the Naval Forces (Enforcement of Maintenance Liabilities) Bill there power is taken in Clause 1 whereby deductions can be effected from the pay of an officer for the purpose of maintaining his wife, his child or children or even the maintenance of an illegitimate child. I might add that the Committee stage of this Bill has yet to be taken by this House. I am extremely surprised to learn that the Bill before the Committee this afternoon does not contain a similar provision, and I suggest that my right hon. Friend the Secretary of State for War should live up to the standard set in the Navy by the Parliamentary Secretary to the Admiralty. Clause 4 of this Bill does not live up to the same high standard as that which has been decided upon by the Parliamentary and Financial Secretary to the Admiralty.
After representations by the hon. and gallant Gentleman the Member for Chelsea (Commander Noble) and myself on the Second Reading, the Parliamentary and Financial Secretary to the Admiralty was good enough to put down an Amendment to the Naval Forces (Enforcement of Maintenance Liabilities) Bill which gives certain safeguards to an officer or rating against whom an order has been made, and it provides that no deduction from pay shall be made under a particular provision of the Bill, unless the authority is satisfied that the person against whom the order or decree was made has had a reasonable opportunity of appearing himself or has appeared by duly authorised legal representative to defend the case before the court by which the order or decree was made. I consider that this would be an admirable Amendment to incorporate in this Bill as affecting an Order so that a person who has some liability under a court order shall also have available to him some reasonable method of protection.
I pass to another aspect of Clause 4 which also impinges on Clauses 5 and 6. I am sorry that the noble Lord the right hon. Member for Horsham (Earl Winter-ton) is not here, because I would ask for his support on the point I want to raise. There is one important matter not covered by these Clauses. There are cases where a regular soldier or a regular officer is discharged abroad after he has completed so many years' service, and he is entitled 1267 to be paid retired pay or pension abroad if he desires to remain in the country where he has been demobilised. In some cases—and they are very few indeed—the officers or the rankers as the case may be, desert their wives and children at home. At the present time unless there is a reciprocal arrangement between the countries involved, there is no possibility of the wife at home obtaining any kind of redress against her husband for her-self or the children, neither is there any possibility of any kind of redress being obtained for any illegitimate child who is left behind. I should have thought it possible for some provision to be made—and on another occasion I shall seek to do it in regard to the Naval Forces (Enforcement of Maintenance Liabilities) Bill—whereby deductions could be made for the purpose from the retired pay or pension of an officer or ranker living abroad, on behalf of his wife whom he has deserted.
Otherwise a most extraordinary situation arises. There is the wife at home here in England, say, with two children. Her husband, after having served so many years in the Forces, is demobilised abroad, and if he has completed seven years' service, he is entitled to draw from the British Treasury a pension for the remainder of his days. The pension presumably comes out of the Consolidated Fund to which the wife contributes in part, but if she wants to be maintained she is forced to go on public relief. I should have thought that there would have been some means whereby this particular situation could have been rectified, and I would suggest that the most suitable method would be by the insertion of a suitable Amendment later on—possibly in another place since the right hon. Gentleman has already indicated his intention to effect certain Amendments when the Bill goes through its later stages. I feel that it is entirely unjust and unreasonable that officers and rankers who have deserted their wives should be able to draw money and should be on a different basis from the ordinary civilian—

§ Sir H. Lucas-Tooth
Is the hon. and gallant Gentleman suggesting that recipients of Service pensions should be placed on a worse basis than recipients of wages or other incomes?

§ Major Bruce
It would, of course, have to be subject to one most important proviso. Obviously, anybody who had completed his service and had resided in this country afterwards would be subject to the normal process of the law in this country and would be in the same position as any other civilian. The particular point I have in mind concerns that very limited class of persons who shake the dust of Britain off their feet and go into another country permanently and continue to draw money from the Treasury, into which the wife has to pay in this country, and from which, presumably, she draws some kind of allowance under a provision made for her emergency maintenance. That is the case with which I am concerned, and I think the Minister should consider doing something about it because it does effect considerable injustice and is not in the best interests of the Service concerned.

§ Mr. C. Williams
I hope the hon. and gallant Gentleman the Member for North Portsmouth (Major Bruce) will excuse me if I do not go into the full details of his speech, but I am not feeling quite as strongly as are he and other Government supporters that this is an excellent opportunity to have a kick at a not very strong Service Minister.

§ Mr. S. Silverman
I hope the hon. Gentleman is not attributing that motive to me. My object was not to criticise my right hon. Friend, for whom I have a very great respect. I have served with him in this House for many years and I should be very sorry indeed to have my point of constructive criticism of this Clause so misinterpreted.

§ Mr. Williams
I have no wish to offend hon. Members opposite, but I rather understood from the tone of the speeches that they thought that this was an occasion on which they might ginger up someone in order to encourage him to do the right thing.

§ Mr. Silverman
I thought it was an occasion to take the opportunity—when a Labour Government are endeavouring to put right what other Governments have failed to put right—to make sure that their purpose is fully achieved.

§ Mr. Williams
That is exactly what I was trying to say in shorter and clearer words. An advance is being made which 1269 is not quick enough for some hon. Members, but let me leave it at that. May I be allowed to congratulate Members on giving the Committee at least one piece of information, which was that the Navy was superior to that of the Army in this matter? Of course, the Navy has always led the Army, and it always will, but it is a very good thing that we should know.

§ Sir G. Jeffreys
You have made a very sweeping statement—

§ The Deputy-Chairman (Mr. Hubert Beaumont)
I must ask the hon. and gallant Gentleman to address the Chair.

§ Sir G. Jeffreys
I apologise, Mr Beaumont. I think that if my hon. Friend makes these statements the least he can do is to produce some evidence in support of them, although I suggest that they are hardly relevant to this discussion at all.

§ Mr. Williams
I made no reflection on anyone, but simply referred to the higher standard of one as compared with the other. Everyone knows that the British soldier has the highest standard of intelligence of any in the world, and that of the British Navy is even higher. I hope the Air people will not ask me about themselves because I should be quite prepared to say what I thought about them.
My reason for rising was to ask two questions about the Clause, but before doing so I should like to make it clear that I am not one of those who is worried about its parentage. At the bottom of page 3 it is stated that execution in respect of any such liability or of any order or decree in respect of such maintenance shall not issue against his person, pay, arms, ammunition, equipments, instruments or clothing. I do not know if there are any cavalrymen present, but although it would not often happen, if at all, I should like to know whether that would apply to the soldier's horse if he happened to have one. I think this may have been left out, and it is just as well that we should he careful in these matters. The other point about which I am not clear is this. It is laid down twice on page 4—in lines 5 and 35—that the orders or decrees made include those made in Northern Ireland. I am not a lawyer, but that is how I understand it. Incidentally, I notice that there is a very able lawyer 1270 sitting behind the Government Bench. Have the Government of Northern Ireland been consulted on this matter if it applies there? I notice that it also applies to the Tynwald, which I understand is in the Isle of Man, but that although earlier in the Bill the Channel Islands were included they are not mentioned here. I am not sure about this and I should like a definite answer from the Minister as to whether consultations have taken place in these matters, and whether there has not been a drafting error.
There is one further question, which may be rather more complicated. Is there any co-ordination on this matter so far as concerns the Services of this country and the Dominions, since they so often have to serve together? Have there been any consultations and are Army Orders being regulated between the Dominions, ourselves and the Indian Army? That is a matter which I think we are entitled to ask about. I will not develop it, but I should like to have replies to my three questions. I am not trying to be hostile, although I could if I wished. I believe this is a good Clause and that at any rate the best part of it could only have come from my hon. Friends on this side of the Committee.

§ Mr. Bellenger
I am much obliged to hon. Members in all parts of the Committee for the various speeches which have been made, and also the attempts from different quarters of the Committee to claim paternity for this Clause and the two which succeed it and are consequential upon it. Being a modest sort of person, I do not want to claim any credit for it, although I could tell the Committee a good deal of what went on behind the scenes during the war when these things were argued out and resisted by Members of the then Government or, perhaps, by particular Services. Nevertheless, better late than never, and we have attempted in this Clause to put the officer in exactly the same position as the soldier. That is the purpose of this Clause, and although I listened to the various points put by hon. Gentlemen—which I intend to answer in a moment or so—it is our intention to put the officer in the same position as the soldier. That will account for some of the limitations which have been mentioned by hon. Gentlemen as applying now to the officer and which apply also to the soldier.

§ Mr. Shurmer
Did my right hon. Friend say, "On the same footing as the soldier?"

§ Mr. Bellenger
Perhaps I should have said "other ranks"—that in the case of warrant officers down to private soldiers there is no difference except in the amount of contribution they have to make from their pay in money to their spouses or in relation to their children. Hitherto, the Army Act has applied only to the soldier. That term must have meant "other ranks." For some reason an officer is described in other terminology.

§ Mr. S. Silverman
Perhaps he has never been regarded as a soldier?

§ Mr. Bellenger
The hon. Gentleman the Member for South Hendon (Sir H. Lucas-Tooth), the hon. Member for Nelson and Colne (Mr. S. Silverman) and the hon. Member for North Hendon (Mrs. Ayrton Gould) have all taken an active part when previous Army Bills have been before the House in an endeavour to put right a wrong which has existed too long. Today, I hope that we are about to pass on its stages to law something which I think the Committee, the public, and indeed the Services themselves, will admit to be something which ought to have been remedied some time ago. If I may I should like to deal with some of the very interesting points put by the hon. Member for South Hendon. He raised some very intricate matters, but I will do my best to reply. He called attention to the word "shall "in line 11 on page 4 and asked who was to notify the Army Council that an Order had been made. It is my intention to arrange with the Home Secretary, in those cases where an order is on the application of the wife, that the order shall be notified to the Army Council by the clerk of the court. I think the hon. Member was wondering how the Army Council would know the order had been made. The wife, of course, would let us know, or the Army Council, that an order had been made, because she could not go to the courts unless she wanted to get a maintenance order.

§ Sir H. Lucas-Tooth
In the ordinary way, a wife ultimately finds her way to the Paymaster and thence to the Army Council, but there are cases in which the wife has no knowledge of the Army Act, and is unaware of the remedies under that 1272 Act. I know of cases where no relief under the existing legislation is claimed for a long time. If I understood the right hon. Gentleman aright, he intends to put some obligation on the courts to forward an order after it is made, in the event of a man being a serving soldier or officer. That seems to be an interesting and useful development, but I do not think the wording carries out that intention. I should like to ask whether the right hon. Gentleman intends to put a definite obligation on the courts, or whether he intends to deal with it as a matter of administration.

§ Mr. Bellenger
What we are trying to do is to put the officer in the same position as the soldier. Therefore, notification of the order to the Army Council follows the same practice as in the case of other ranks. The initiative will, of course, have to be taken by the wife. The hon. Member said that the wife did not know the Army Act and Military Law. That is true, but many wives do not even know the civil law. One assumes that a wife will know that her husband is serving as an officer, and she will have to give evidence to that effect.

§ Mr. S. Silverman
The case does not arise where the wife does not go to the court. This case arises where an order has been made. The real difficulty arises from the passive or negative way in which the application is dealt with. Would it not be better if the Clause read, in line 11, that the Registrar or clerk of the court out of which the order was issued shall cause a copy to be sent of the order to the Army Council"? There would then be no doubt about it.

§ Mr. Bellenger
I ought to explain that the clerk of the court, if he knows the husband is serving in the Army, automatically sends it.

§ Mr. Silverman
The Clause does not provide that he shall.

§ Mr. Bellenger
This has been going on for some time past in the case of soldiers, and there has been no difficulty. Where an order has been made, the clerk automatically sends it on, if he knows the husband is serving in the Army. I will look at the point to see whether the word "shall" is sufficiently strong to make it incumbent on the clerk to send the order to us.

§ Mr. Silverman
Surely the order cannot be made by any court unless the parties have been served with the proceedings upon which the order is issued? In almost all cases the court, when making the order, will know therefore that the defendant is in the Forces. They will also know the man's pay. The difficulty would be met completely if a positive duty was placed upon the officers of the court to send a copy to the Army Council.

§ Mr. Bellenger
That is precisely the procedure which is observed. In those cases where an order of the court is made, there is no difficulty.
I am coming now to a case which presents a greater difficulty. My hon. Friend the Member for King's Norton (Mr. Blackburn) thought this Clause was not strong enough, because it did not provide for those cases where the wife does not go to a court for an order. As I stated earlier, this is an attempt to put the officer in the same position as a soldier. My hon. Friend described the procedure of A.G.3E, whereby the wife who did not want to get a court order made application to the War Office, and the War Office adjudicated and arrived at approximately the same result as if the wife had gone to a court. It covered those hard cases of the soldier who has gone overseas and it is physically impossible to serve a notice of proceedings on him. My hon. Friend has considerable knowledge of this, because he served in a branch of the War Office which was constantly dealing with these matters during the war. He will know that the system worked exceedingly well, and was without the publicity and the invidious association of a court of law for an aggrieved wife. It was possible to arrive at a conclusion whereby the soldier could not ignore his marital responsibilities in regard to the maintenance of his wife. This branch of the War Office, having heard the evidence in privacy, and investigated the accuracy or otherwise of the statements made, then came to a decision. In the case of officers, a similar procedure will be followed as in the case of the soldiers. We want to put the officer in no different position, but we also do not want to see him in a worse position than a soldier.

§ Mr. Blackburn
I am grateful to my right hon. Friend for accepting the principle. I hope he will look at the matter 1274 again, because I have grave doubts whether this Clause will achieve what my right hon. Friend wants. I do not think there will be the same powers for compulsory stoppages of pay as those which apply in the case of the private soldier.

§ Mr. Bellenger
I certainly have not the legal knowledge of my hon. Friend. I am advised—and I have no evidence to the contrary—that this Clause does achieve what I have attempted to outline. I can only explain the Clause, and the purpose for which it was drafted. I was going on to say something about the interesting point which was raised, to whether an officer having satisfied the obligation in this manner, to maintain his wife, would then be in a position to draw a marriage allowance. In the case of a soldier, he does not draw the full amount but a proportion.

§ Sir H. Lucas-Tooth
He may draw the full amount if so much is required to meet the order.

§ Mr. Bellenger
The case of the officer will follow on identical lines, that of the soldier. The officer will be able to draw a proportion, but if the hon. Member would like to see a fuller explanation of the regulations and rules which have been issued under Army Order 94 of 1946, covering the point, I will send him a copy The point he has advanced will be met if this Clause is passed. Another point which was raised, was whether this Clause covered alimony in the case of a divorced wife. I am not quite certain about that. I rather think it is not covered by this Clause, any more than it is covered in the case of the soldier. I was asked whether these deductions from the pay of officers would be made to the wife, gross or net, after the deduction of income tax. I am not in a position to answer that at the moment, but I will endeavour to find out. I do not know what is the position in the case of civil proceedings, and whether a man has to pay the gross or net amount to his wife. My hon. and gallant Friend the Member for North Portsmouth (Major Bruce) raised the same point which he proposes to raise in the Naval Forces (Enforcement of Maintenance Liabilities) Bill, namely, whether we should extend this Clause to cover not only serving officers, but officers and soldiers after they have left the Forces, and whether we should 1275 pursue them wherever they may be A they are drawing pensions from the Services.

§ Major Bruce
That was not the exact purpose. My right hon. Friend used the term "wherever they may be." That is not the intention. The intention is that they shall become liable to reductions only when beyond the reach of British judicial processes.

§ Mr. Bellenger
I do not think that is a fair liability to place on the Army. We are concerned to see that while we employ an officer or a soldier, he shall observe his duties but when he becomes a civilian, the ordinary processes of civil law ought to operate. We should not be asked to take on that additional liability, which, incidentally, does not apply in the case of a soldier, and should not therefore apply in the case of an officer.

§ Mr. Turner-Samuels (Gloucester)
The phrase my hon. and gallant Friend the Member for North Portsmouth (Major Bruce) used about officers being outside British judicial processes is quite wrong. Although it is true the man may be abroad, and cannot therefore be served personally in connection with any proceedings, there is nevertheless such a thing as "substitute service." He can be contacted in exactly the same way as if he were in this country and an order can be made.

§ Earl Winterton
I should like to raise a point of terminology. Since the Statute of Westminster was passed, any Act of this House has to be described as "an Act of the Parliament of the United Kingdom." I see here that the word used is, "Act." Perhaps the Minister will look into that point.

§ Mr. Bellenger
Certainly; it is a legal point, and I will take advice about it. But I do not think it affects the main purpose of this Clause. The hon. Member for Torquay (Mr. C. Williams) raised a point about the Dominion Forces. He knows that those Forces are under the authority of the Dominions. His other point was that this should apply if a soldier was serving overseas in the Dominions. The stoppage of pay of the officer in certain circumstances will apply wherever he is serving within the British Empire.

§ Mr. C. Williams
I also raised a point about the Channel Islands, and about equipment.

§ Mr. Bellenger
I am sorry I missed those two points. The Channel Islands have not been asked to come within this Bill. In the case of horses of officers I should say that they would be in the same category as equipment. Service Members, I know, would understand the reason for not allowing officers' or soldiers' equipment to be liable to distraint. After all, the officer or soldier has to tight battles and there are cavalry soldiers who still have horses and who could not perform their duties properly if they had no horses. I should assume that horses would be in the same category as an officer's sword, pistol, or accoutrements or any sort.

§ Mr. Williams
The right hon. Gentleman says he "assumes." Anyone can say that, but it does not necessarily make it right. We ought to have a firm assurance on the point. I would also like to ask whether Northern Ireland has been consulted. Have any negotiations taken place with the representatives of Northern Ireland?

§ Mr. Bellenger
We have consulted all the parties likely to be concerned with this Bill. I can now give the hon. Gentleman a categorical assurance that we shall not allow distraint upon an officer's horse. If an officer has deserted his wife we shall allow him to keep his horse, unencumbered, but so far as pay is concerned, we propose to see that a portion of it is stopped to help maintain his wife.

§ Major Legge-Bourke
Is there not a difference between equipment and a horse, as equipment normally goes on the officer, whereas an officer normally goes on the horse?

§ Mr. S. Silverman
May I be allowed to correct an intervention which I made just now, when my hon. Friend the Member for King's Norton (Mr. Blackburn) was speaking? He said that he thought this was not covered and I said, rather hastily, that it was covered by the next Clause. I think it will save discussion if you allow me to be sufficiently out of Order to refer to the point now, Mr. Beaumont, since it was discussed in relation to this Clause. I can only clear the point up by referring to the wording in the next Clause.

§ The Deputy-Chairman
That will be all right if it is convenient to the Committee.

§ Mr. Silverman
Clauses 4, 5, and 6 are intended to achieve the same common object of putting the officer in the same position as the soldier in regard to these matters.

§ Sir H. Lucas-Tooth
The hon. Member is not quite correct about Clause 6. That introduces a new position.

§ Mr. Silverman
Yes, I beg the hon. Member's pardon. I meant Clause 5.

§ The Deputy-Chairman
If the hon. Member wishes to continue and the Committee agrees, we will have the discussion on Clause 5 along with Clause 4 and then there will be no further discussion when Clause 5 is reached.

§ Mr. Silverman
If the Minister will look at Clause 5 he will find, in effect, that it wants to change the words, "not a soldier," as they appear in Section 145 of the Army Act, into "not a member of the Regular Forces." That was designed to achieve the result that Section 145 of the Army Act should apply to officers as well. If my right hon. Friend will look at that Section, and read into it the Amendment suggested by Clause 5, he will see exactly what has been done. It is a slip by the people who do not often slip in matters of this kind—the Parliamentary draftsmen. Here, I think they have slipped badly. Let me read Section 145, as it would be amended: A soldier of the Regular Forces shall be liable to contribute to the maintenance of his wife, and of his children, and also to the maintenance of any bastard child of which he may be proved to be the father, to the same extent as if he were not a member of the Regular Forces. The Clause amends the wrong word. It leaves the soldier still liable, and the officer still not liable. What Clause 5 ought to have done, in order to carry out the intention of my right hon. Friend, was to alter, in Section 145, the word "soldier," in the first line thereof, into "member." Section 145 would then have read: A member of the Regular Forces shall be liable… and the distinction between officers and soldiers would then have disappeared. As the Clause stands at present, the distinction which my right hon. Friend intends to remove remains. Instead of saying, 1278 "not a soldier," you have said, "not a member of the Regular Forces." The person liable in Section 145, after we have passed Clause 5 of this Bill, will still be the soldier, and only the soldier, whereas it is intended to extend the application from the soldier to include the officer. That is precisely what the Clause neglects to do. I therefore suggest that my right hon. Friend should look at this drafting again, because, at the moment, it patently fails to achieve the purpose which he says, with the support of us all, he wishes to achieve.

§ Sir H. Lucas-Tooth
Perhaps I might come to the rescue of the Minister. If the hon. Member for Nelson and Colne (Mr. S. Silverman) will look at page 3 of the Bill, at the bottom, he will see that the point that he has just made is precisely covered.

§ Mr. Blackburn
With great respect, I think that is quite wrong. Clause 4, Subsection (2), to which I referred earlier, deals only with the case where there is an order, or distraint, in respect of maintenance. We are not dealing with that case; we are dealing with the usual and troublesome case where the soldier or officer goes overseas. It is then impossible to serve him with proceedings, and get an order against him.

§ Mr. Turner-Samuels
There is such a thing as substituted service.

§ Mr. Blackburn
Many of us have a good deal of experience of this matter, and I can assure the Committee that substituted service is, practically speaking, impossible. I have never heard of a case of substituted service against a serving officer or soldier. In any event, the point is quite irrelevant, because the Minister says that he wants to put the officer and the soldier in the same position. In the case of the soldier where the allowance is stopped, the matter is automatically considered by the Army authorities. The same should apply to the case of the officer. Where the officer stops the allowance to his wife, the matter should be automatically considered by the Army authorities. All you have to do, in Sections 144 and 145 is, instead of saying, "a soldier of the Regular Forces," to say, "a member of the Regular Forces," or, alternatively, "a soldier of the Regular Forces or an officer of the Regular Forces." If that were done then 1279 our consideration of this Parliamentary draftsmanship, which has puzzled the Committee for two and a half hours, would have been entirely unnecessary. I should have thought that even an articled clerk would have thought of a solution of that kind. I ask my right hon. Friend to see that at a later stage this is amended, so that it may cover the intentions which he has so generously announced to the Committee.

§ Mr. Turner-Samuels
I cannot quite follow what my hon. Friend said on this question of substituted service. He said that he had never heard of a case of a soldier being served in that way, and that it was absolutely impossible to find out where the soldier was. That was an interesting observation, having regard to the argument which he was putting forward. If you cannot find the soldier it seems rather strange that he is receiving any wages at all. If the Army does not know where he is it is clear that he will not be receiving any wages. But if he is receiving his pay it is clear that somebody in the Army must know where he is; his address must be known. If his address is known, then substituted service could be effective.

§ Mr. Blackburn
It is not the practice of the Army authorities to furnish addresses of soldiers.

§ Mr. Turner-Samuels
This is extraordinary—

§ Mr. Blackburn
It is true.

§ Mr. Turner-Samuels
It may have been true in the past, but here we are seeking to make an Act of Parliament which is to bind the Army authorities. Now we are being told that those authorities will not act under the Act which Parliament will have to pass. That is really nonsense, and I cannot accept it at all. If a man in the Army is receiving his pay it must follow, as night the day, that the Army know where he is, otherwise he cannot be receiving his pay. If the Army knows where the man is then his whereabouts will be given, and in that way substituted service can be effected.

§ Mr. Marlowe (Brighton)
Apart from the practical difficulties which the hon. Member for King's Norton (Mr. Blackburn) rightly pointed out in answer to the 1280 hon. and learned Member for Gloucester (Mr. Turner-Samuels), that in practice no such service ever takes place, another difficulty in the suggestion of the hon. and learned Member for Gloucester is that in affiliation proceedings there is no such thing as substituted service.

§ Earl Winterton
I know the Committee will not think I am speaking in sarcastic tones—I am never sarcastic—when I say that, in view of the sparkling forensic information from the other side of the Committee, which has been wholly contradictory, it might facilitate the proceedings if we had a Law Officer of the Crown present. I always regard with the greatest respect legal authorities, especially when they sit on the benches opposite, but I think we would like to have the super legal opinion from one of the Law Officers. I make the serious suggestion that, as the Committee is in some difficulty, we might have a Law Officer here.

§ Mr. S. Silverman
I do not dissent in the least from what the noble Lord has said. When we are dealing with the interpretation of Statutes, whether the points raised are difficult or simple, and whether the opinion offered by other lawyers is the same or different, the Committee ought to be guided by the opinion of a Law Officer. But, in the absence of a Law Officer of the Crown, I would like to say that I think the point which I raised is a simple one and is not one such as to require the Committee to adjourn in order to get a Law Officer here. I only intervene to comment on a point which was raised by the hon. Member for South Hendon (Sir H. Lucas-Tooth), who seems to think that the point I made was covered by Clause 4. I do not wish to debate that point; I think he is wrong, and I took the liberty of saying to him privately why I thought he was wrong, but I think he will agree with me when I say that even if he is right, the objection I am making to Clause 5 is still a good objection. If he is right, Clause 5 is unnecessary and ought to be removed.
Alternatively, if we are to keep Clause 5, it must be in order to achieve some purpose. Clause 5, as it is now drafted, achieves no purpose, good, bad or indifferent. It alters the words "not a soldier" into "not a member of the regular forces," at a point where the meaning of the Clause is not affected by the change. In order to affect any 1281 change, still more such a change as is required here, in Section 145 of the Army Act we must amend the word "soldier" so that the person made liable shall be not "a soldier," which expression has always been held not to include an officer, but "a member of the regular forces"—a phrase which is now used to include both soldiers and officers. That point remains a good point, whether or not Clause 5 is unnecessary. It may not be necessary to have Clause 5 at all but, on the assumption that Clause 5 is necessary, it is so drafted as not to change the law unless a further amendment is made. I am not asking the Committee to turn itself into a body of Parliamentary draftsmen at this stage. I am only asking that my right hon. Friend should undertake to consult the Parliamentary draftsmen between now and the next stage in order to clear up the point.

§ Mr. Bellenger
I will endeavour briefly to put the matter in a way which, I hope, will convince my hon. Friends that we are legally doing what we are setting out to do. In Clause 4 we have referred to Section 137 of the Army Act which governs the position in relation to officers. In Subsection (1) of Clause 4, we have provided for the addition, at the end of Section 137, of another Subsection which will ensure that the officer shall be in the same position as the soldier in maintaining his family in certain circumstances.

§ Mr. Blackburn
rose—

§ Mr. Bellenger
In this very intricate argument, while I know that my hon. and learned Friends are well versed in war[Laughter]—I should have said "law," though in war, too, in some cases—I hope they will allow me to put my argument without interruption, so that, perhaps, they will be convinced, and if they are not convinced they may then say what they want to say. In Clause 4 we go on to say An officer … shall be liable to contribute … to the same extent as if he were not a member of the regular Forces. If we had said, as if he were not a soldier, that would have been incorrect because an officer is not a soldier. So we, therefore, have to say that in relation to the conditions governing a soldier, which are covered in Section 145 of the Army Act, 1282 the officer shall be put into the same position, but we have to use different terminology. We cannot use the word "soldier" because an officer is not a soldier, so we attempt in Clause 4 to describe him as if he were, as actually he is, a member of the regular Forces. In Clause 5 we have to amend Section 145 of the Army Act, because in that Section a soldier is described as a soldier.
Therefore, if we wish to put the officer into the same position as the soldier—and we say we are going to do that in the new Section 144A—we must relate it to something which is understandable, and we have to say that the officer and the soldier are members of the regular Forces. This is purely a matter of terminology and of description which we are putting right, because hitherto, and, probably, in the future, the officer in other respects is described as an officer, and the soldier is described as a soldier; but in this respect, in relation to their responsibilities to their wives and children, we have to use a term which will be adequate for both officer and soldier. Although I have not the legal experience of my hon. Friends, I hope the advice which I have been able to get from my expert advisers will assure them that the position which I have tried to explain is one which is satisfactory from a legal point of view.

§ Mr. Blackburn
I agree that Clause 4 (1), dealing with Section 137 of the Army Act, very largely covers the point. I think the Committee was led astray by the hon. Member for South Hendon (Sir H. Lucas-Tooth) who interrupted me and said that compulsory stoppage of pay came under Section 145. I said it came under Section 137, and it is Section 137 which relates to officers. There is still considerable difference between the officer and the soldier, because in the case of the soldier, as soon as the allowance is stopped he is automatically seen by a welfare officer and the matter is automatically considered by the War Office. In the case of the officer he does not make a compulsory allowance to his wife. I think, perhaps, the Secretary of State might consider later that point as to whether it would not be a good thing, particularly for young officers, to contribute to the support of their wives in the same way as soldiers. Secondly, I would like to suggest that all this discussion could have been avoided by a very simple piece of Parliamentary draftsmanship. We must not allow Parliamentary 1283 draftsmen to get away with this sort of thing, with two or three pages of material which have taken us hours to try to consider properly, when it might have been done much more simply.

§ Mr. S. Silverman
I think my right hon. Friend has proved conclusively that the intention which he wished carried out is, in fact, carried out. What he has proved is that it is not carried out by Clause 5, but it is carried out somewhere else. I still say that Clause 5, on his own interpretation, becomes totally unnecessary and that what we ought to have done should have been to amend the word "soldier" in Section 145 of the Act in both places. There would have been no harm in that. We would have avoided ambiguity, and we should not have had to deal with officers and soldiers in different Sections of the Army Act, when they could have been dealt with in the one Section.

§ Major Bruce
I want to ask a question on an entirely different matter. I asked my right hon. Friend to consider inserting in the Bill some safeguard similar to that contained in the Naval Forces (Enforcement of Maintenance Liabilities) Bill. My right hon. Friend did not reply on that point, and if he would give me some indication of his intention I would be obliged.

§ Mr. Bellenger
I cannot give any satisfaction in the direction which my hon. and gallant Friend wants. The whole purpose of Clause 4, and Clause 5 which is consequential, is to put the officer in the same position as the soldier. I cannot go any further than that today.