HC Deb 26 March 1947 vol 435 cc1324-34

At the end of paragraph (3) of section forty-eight of the Army Act (which relates to general and district courts-martial) there shall be inserted the following words: And the members of a court martial for the trial of an officer shall be of an equal, if not superior, rank unless in the opinion of the convening officer, to be stated in the order convening the court and to be conclusive, officers of that rank are not available."—[Sir W. Allen.]

Brought up, and read the First time.

Lieut.-Colonel Sir William Allen

I beg to move, "That the Clause be read a Second time."

It may seem impertinence on my part to suggest any amendment to War Office regulations. However, I make no apology for doing so, because we in Ulster have contributed our share towards the protection of the great British nation during the last war and in other wars. For many years we have provided men, women and munitions, and, when they were required, the British Army would accept field marshals by the half dozen from Ulster.

We have had given to us what is commonly known in the Army as the "Manual of Military Law," and in that manual are the Army Act and rules of procedure. I want to confine myself entirely to the instructions concerning courts-martial in the cases of the Army Act and of the rules of procedure. The intention of the proposed new Clause which I am moving is to make both the Army Act and rules of procedure agree. At the moment they do not agree. In the course of my remarks I will show that various judge advocates general and the War Office are in agreement with what I suggest; not only that, but previous Secretaries of State for War have agreed that there is difference and disagreement between the Army Act and the rules of procedure. Should my new Clause be accepted, Section 48 (3) will then read: A general court-martial shall consist of not less than five officers, each of whom must have held a commission during not less than three whole years, and of whom not less than four must be of a rank not below that of captain. Then follow the words which I wish to add: And the members of a court-martial for the trial of an officer shall be of an equal, if not superior, rank unless in the opinion of the convening officer, to be stated in the order convening the court and to be conclusive, officers of that rank are not available. The language that is used there is taken directly from the rules of procedure. I would like to make a strong plea to the right hon. Gentleman the Secretary of State for War, who, I am sorry to see, is not here. I daresay he has left instructions of some kind with his representative on the Front Bench, but I would much prefer that he should have been present because this is a very serious matter. What those instructions are, I have yet to learn.

8.15 p.m.

I would like to illustrate my point about the disagreement between the Army Act and the rules of procedure. A court-martial is convened. The president sits on the court-martial with four other officers. There is a prosecutor called the judge advocate. There is the accused and his defending friend who may be a very learned gentleman belonging to the law. When the court opens, the friend of the accused brings to the notice of the president that there are two officers of the rank of captain, and he reads from page 360 of the rules of procedure in the "Manual of Military Law" as follows: The members of a court-martial for the trial of an officer shall be of an equal, if not superior, rank to that officer. The friend of the accused asks for a reconvening of the court in accordance with that rule of procedure. May I emphasise the fact that that rule of procedure means that the court must be convened in accordance with that rule, which is that the officers must be of an equal, if not superior, rank to the accused? That having been done, the president replies that he has been advised that the court has been properly convened according to the Army Act, and decides that the trial must proceed. The friend of the accused then lodges a protest with the president of the court-martial and asks that that protest may be forwarded with the proceedings to higher authority, the result of which is that the trial proceeds. The accused officer, who may be a major, is then tried, and two or three of the officers on the court-martial may be of a lower rank than the major. The accused may be found guilty, and sentence promulgated, to the effect that the accused major be dismissed the Service. The proceedings may then be passed on to the general officer in command of the district, who may confirm the finding of that court.

Finally the proceedings reach the Army Council. Naturally, the latter seek the advice of the Judge Advocate General, and a crucial period in the life of the accused officer and his honour as an officer hang on the advice given by the Judge Advocate General to the Army Council. He may be disgraced for life, or a new trial may be ordered in accordances with the rules of procedure. I want to produce evidence which will prove that previous Secretaries of State for War have had knowledge that there is a disagreement between the Army Act and the rules of procedure, and I will read some letters to demonstrate that.

Mr. John Freeman

indicated dissent.

Sir W. Allen

The hon. Gentleman the Financial Secretary to the War Office need not shake his head. Not only have the Secretaries of State for War agreed that there is a disagreement, but several Judge Advocates General have already stated that there is disagreement. It is for that reason that I suggest the Committee should take this matter into serious consideration. The first letter I wish to quote is dated January, 1936, and states: The Army Act itself contains no provision which requires that the rank of a member of the court should be equal, if not superior, to that of the accused. That letter was signed by Mr. Duff Cooper. That is a statement made by a previous Secretary of State for War on the advice of the then Judge Advocate General. The next letter I wish to quote is dated 27th April, 1938, and states: There is no provision in the Army Act which requires that the rank of a member of the court must be equal, if not superior, to that of the accused. Indeed, it is clear that as many as four captains can be members of a court-martial for the trial of a major, while four majors can legally be members of a court-martial for the trial of a lieutenant-colonel, or even of a general. That letter is signed by Mr. Hore-Belisha, who wrote it on the advice of the then Judge Advocate General.

I think the illustration I have given shows very clearly that an officer who is responsible for the convening of courts-martial is at a loss to know whether he should do so according to the Army Act or according to the rules of procedure. I have already stated what the rules of procedure state, namely, that the members of the court must be of equal rank. But the Army Act says, "No;" and, according to the Judge Advocate General, the Army Act must overrule the rules of procedure. I think I have already produced sufficient argument in support of this proposed new Clause. There is a distinct divergence between the Army Act and the rules of procedure. Why have rules of procedure if they are not to be obeyed? Why have rules of procedure which are in conflict with the Army Act? I suggest to the Financial Secretary that this matter should be seriously considered by the authorities concerned. There is no doubt in my mind, there is no doubt in the minds of the Judge Advocates General, and there is no doubt in the minds of previous Secretaries of State for War, that there is a divergence of opinion arising out of the actual words of the Army Act and of the rules of procedure. Why cannot they be assimilated? Would it not be a simple matter to have that done? I have suggested in the proposed new Clause that the rules of procedure shall be brought into the Army Act. But I do not mind whether the Army Act agrees with the rules of procedure, or the rules of procedure with the Army Act. It is for the War Office to decide what is the best thing to do, but there should be some agreement between the Army Act and the rules of procedure.

I have stated that Judge Advocates General have said that the Army Act, as such, overrules the rules of procedure. But there are as eminent lawyers who take the contrary view. What I am surprised at is, that year after year the Army Act and the rules of procedure have been allowed to pass this Committee, and difficulties put in the way of convening officers. The Army Act permits the Army Council to overrule the rules of procedure. In the case that I mentioned, the officer, being judged by the Army Council under direction of the Judge Advocate General, is dismissed and disgraced for ever. Let us look at this in a common sense way. I appeal to the Financial Secretary, who is to reply on behalf of the War Office, even if this proposed new Clause is not accepted, at least to take it into consideration, and to bring it before those who are responsible for the Army Act and for the rules of procedure. In my opinion, I have made it plain that there is disagreement between the Army Act and the rules of procedure; and it is high time that something was done to make them satisfactory in relation to each other.

The Financial Secretary to the War Office (Mr. John Freeman)

The hon. and gallant Member for Armagh (Sir W. Allen) began by apologising to the Committee for moving a new Clause as a representative from Northern Ireland. I should like to assure him that he had no need to make such an apology; and I should like further to assure him, as I hope to show during the course of my remarks, that we have for a long period of years given very close attention indeed to the arguments which he has just adduced to the Committee. I will seek to show him—although I concede that it is a complicated matter—that he is on the wrong track here, and that the injustice which he believes to be taking place is not, in fact, taking place. The hon. and gallant Member based his case on the suggestion that Section 48, coupled with Section 70, of the Army Act is at variance with the Rule of Procedure 21 (B), which he quoted to the Committee. He has quoted, not only an imaginary case to give an instance of how that variation might affect the course of a trial, but also letters written by successive Secretaries of State, on advice rendered to them by the Judge Advocate General, which the hon. and gallant Member alleges he can fairly call in aid. I have to tell him that in our view he, with the best will in the world, is wrong in this matter. He made some point, I thought, in talking about the advice which was given to Mr. Duff Cooper and to Mr. Hore-Belisha by the, then Judge Advocate General. The Judge Advocate General has not changed since that advice was given, and he fully endorses the remarks I am about to make this evening. He does not admit—indeed, he would very strongly resent—the suggestion that there is—

8.30 p.m.

Earl Winterton

The hon. Gentleman realises, of course, that it is quite unusual to quote a distinguished member of the Services or of the Civil Service—I say this in the most friendly way—in support of a Minister's statement. A Minister is absolutely responsible for the statements he makes.

Mr. Freeman

I stand corrected, and I beg the pardon of the Committee. I was led aside by the remarks the hon. and gallant Gentleman made. I wish to make it perfectly plain that my right hon. Friend and I are entirely responsible for what I am saying. But the point has been brought out that we are in some way at variance with the Judge Advocate in this matter, and he quoted from letters purporting to show the Judge Advocate's opinion. I am entitled, in passing—I want to put no further emphasis on the point—to point out that that is not, in fact, true.

Section 48 of the Army Act lays down how a court-martial should be constituted, and Section 70 of the Army Act goes on to lay down that the King, through the Secretary of State, may issue rules of procedure from time to time which shall be the subject of judicial notice, provided they are not inconsistent with any of the Sections of the Army Act. That is to say, that the rules of procedure published under Section 70 of the Army Act have, in fact, the virtual force of law.

Sir W. Allen

The rules of procedure have the force of law? Is that what the hon. Gentleman said?

Mr. Freeman

No. What I said was—if I may expand this a little further—that the rules of procedure published in accordance with Section 70 are subject to judicial notice, and are, therefore, virtually tantamount to statutory provisions. They are not exactly the same as law, but they must be taken into account by the court. It was urged that, in the imaginary case that the hon. and gallant Gentleman quoted, the rule of procedure had been broken, not that the Army Act had been broken. When he drew attention to this matter, in long correspondence which he has had with successive Secretaries of State, the point was made by one of my right hon. Friend's predecessors that Rule 21 (b) could not, in fact, be effective because—and I think, in fact, I am quoting accurately from the letter which he received at that time—because, in strictly legal terms, it was inconsistent with Section 48. The word used was "inconsistent." It was not alleged that it contradicted it, or was necessarily at variance with it.

I am anxious to explain to the Committee exactly what the force of that is. Section 48 lays down a certain establishment for a court-martial. The Rule 21 (b) of the rules of procedure limits that; it defines it more closely and limits it. I am advised that, in those circumstances, 21 (b) is not sufficiently inconsistent that it could not be regarded as one of those rules of procedure to be published under Section 70 which has to be treated as a rule of procedure rating judicial notice. But, of course, the Secretary of State is empowered to publish rules of procedure, which are directions to the officers concerned at any time. In this case the position is that the Army Act lays down, in Section 48, a certain statutory minimum, may I say, for the composition of a court-martial. My right hon. Friend and his predecessors have said, "However, by a directory rule of procedure, we propose to give further benefit to the defendant than is contained in the Army Act, and we do it by means of Rule 21 (b)."

Sir W. Allen

The Army Act cancels it out?

Mr. Freeman

No. The Army Act does not cancel it out. I am trying to make this case, which is difficult, as lucidly as I can. If the hon. and gallant Gentleman will read, if I may say so, my remarks in the morning, I believe he will find that nothing I have said suggests that Section 48 does, in fact, cancel that out. We have been asked by the hon. and gallant Gentleman to give very serious consideration to his suggestion. I do want to say that, when I saw that he had put this new Clause down on the Order Paper, I took a good deal of trouble to find out the background of it, and to go into the whole of the very lengthy correspondence that he has had with successive Secretaries of State for War stretching now, I think I am right in saying, over some 13 years. He has pursued this case with tenacity. On the point of law he has raised I am advised—and I must ask the Committee to agree with me—that he is wrong.

But there does remain a further point. He has put down this new Clause and he may say, "Rightly or wrongly, we will not argue the point of inconsistency, but would it not be desirable, if we have a directory rule of procedure, which we have in 21 (b), to incorporate that in the Army Act? "I think that is the point he has quite fairly put which should be answered. My right hon. Friend and I have thought carefully about this, and have consulted with the Secretary of State for Air, and we believe that such a new Clause should not be accepted at the present moment. To begin with, it does not really achieve anything that we are not doing at the present moment in Rule 21 (b). If the hon. and gallant Gentleman says, "If you are doing it at the moment, anyway, why are you not prepared to accept the new Clause? "the answer is, that it is very often a satisfactory and practical way of doing things to do them by rule, but not to be statutorily bound to do them. In fact, we should be uncomfortable—and I am not at all satisfied that it would be in the interests of justice—if we were statutorily bound by the terms of Rule 21 (b). It would bring us up against certain cases where, with the best will in the world, we simply could not, on account of the exigencies of the Service, meet the demands of that rule of procedure.

In general terms I would ask the Committee to agree that, while there may be many reforms which would be welcome in the military law, it is not going in the right direction of reform merely to pass a lot of rather niggardly legislation, which will leave in the future, further loopholes by which people can wriggle out of convictions. What we want is to get procedure in courts-martial which is so obviously just, that correct verdicts are given, and reasonable sentences passed. We do not want to multiply the occasions where officers and soldiers, obviously guilty, can find technicalities on which to wriggle out of convictions which would otherwise be just. For that reason, if for no other, I should not be prepared to recommend my hon. Friends to accept the new Clause tonight.

However, there is one further point. As the hon. and gallant Gentleman knows, the Lewis Committee is at present sitting, and it is reviewing, in the widest possible terms, and with very great authority, the whole field of military discipline and military law. I have expressed an opinion which is the opinion of His Majesty's Government, and which is based, as the hon. and gallant Gentleman will realise, to some extent on a matter of taste. I have said, in effect, that the sky would not fall if we accepted this new Clause, but that, on balance we believe it to be undesirable. If he thinks that that is an unreasonable thing to say, it is open to him to bring this matter to the attention of the Lewis Committee. We should be more than willing to consider whatever recommendations they think fit to make. But, particularly at the moment when the Lewis Committee is sitting, I certainly should not be prepared to accept a new Clause which would, in fact, make a substantial change, and one which we believe would not be for the better. I hope that, as I have given what I believe to be a full explanation, the hon. and gallant Gentleman will consent to withdraw this new Clause. He has, I know, put up a battle over the last 13 years which has aroused my considerable admiration, but I think he would serve his own case best if, having brought the matter up tonight, he would now allow it to rest.

Mr. Gallacher (Fife, West)

I cannot support this new Clause, although I dare- say I could have supported it if the provision about "equal and superior ranks," were to apply to the ordinary soldier, as well as to officers. In any discussion of this kind, it is always to be noticed that the officers are to be treated differently from the men. I know that if I were a rank and file soldier, who had committed an offence, and I appeared before a court-martial on which the noble Lord the Member for Horsham (Earl Winterton) sat, I would be sentenced to be shot at dawn, or to penal servitude for life, and, if the court was in charge of the hon. Member for Mile End (Mr. Piratin) I would get off as free as air. I suggest that, when an hon. Member seeks to put forward a new Clause of this kind, he should put a real principle into it, and ensure that not only officers, but the men who matter, the rank and file, get an opportunity of being tried by their peers, when they have committed an offence.

Earl Winterton

I think my hon. and gallant Friend would be well advised to accept the excellent advice given to him by the Financial Secretary. There is this Committee which is now sitting, and which will go into the whole question of court-martial law. Although it would be out of Order to do more than hint at a suggestion now, I would suggest that the right hon. Gentleman the Leader of the Opposition (Mr. Churchill) or the right hon. Member for Warwick and Learning-ton (Mr. Eden) should ask for a date on which the discuss the whole question of court-martial law when that Committee reports. I am quite sure the hon. Gentleman opposite who has just spoken only said it as a joke, but I should regard it as most injurious if that sort of thing were said by one colleague in this House against another—[Laughter.] I see nothing funny in what I am going to say. I regard nothing as more wounding than for one hon. Member to say about another—I am sure he said it as a joke—that he would be so disreputable and had so little sense of human justice that he would condemn a person, regardless of whether that person was guilty or not. I would like to have the assurance of the hon. Member that what he said was said as a joke.

Mr. Gallacher

May I say that I am quite sure that, if I were brought before a court-martial, of which the noble Lord was the director, I should be guilty?

Earl Winterton

I do not want to pursue this subject or to get angry with the hon. Member. As to what he has just said, we all know what he is. Nobody in this House takes him seriously, and it would be very foolish for me to do so. I think my hon. and gallant Friend who moved the Clause would be well advised to accept the advice or the Financial Secretary, but I would like to add that, when this Committee reports, an announcement should be made to the House.

Sir W. Allen

I should apologise to the the Secretary of State for War and to the Financial Secretary for giving so little notice of this new Clause, but I only knew on Monday that this Bill was to be discussed today. While not agreeing at all with what the Financial Secretary has said, I think I shall be well advised to ask leave to withdraw the Clause, and to take the opportunity later on of putting the whole matter before the Committee. I cast no aspersions whatever on courts-martial. I believe they are friendly, sympathetic and human. The real question is that of the disagreement between the Army Act and the rules of procedure. I beg to ask leave to withdraw the new Clause.

Motion and Clause, by leave, withdrawn.

Preamble agreed to.

Bill reported, without Amendment; read the Third time, and passed.