Clause 19.—(FALSE ANSWERS IN ATTESTATION PAPER) (Hansard, 9 February 1955)

§ Mr. Hale
Subsection (2) of the Clause seems a very curious subsection in view of the ordinary law of the country, which I thought always prevailed. It seems to me that if subsection (1) makes an offence against the civil law nothing can affect the rights of the civil court to try an offence and enlistment of the man concerned in the Armed Forces is probably immaterial. I therefore ask why this subsection is in the Clause at all.

§ Mr. Head
The hon. Member has sprung a legal point on me before I have had time properly to read the Clause.

§ Mr. Turner-Samuels
May I try to help the Minister?

§ Mr. Head
I think the point that For the avoidance of doubt it is hereby declared that a person may be proceeded against under this section notwithstanding that he has since become subject to military law. means, having committed the offence beforehand, the person will be proceeded against. I think it is straightforward.

§ Mr. Hale
The right hon. Gentleman has not got the point at all. If one thing is clear in the law it is that military law is always subordinate to civil law and the prosecution of any man in the forces for any offence against the civil law is quite different from any offence against the Army Act, which is a matter for the military authorities. There are a number of matters which can be dealt with because they are offences against the criminal law administered under the civil law—I use the term "civil law" in contradistinction to military law and not in contradistinction to criminal law—by courts-martial as well as the civil courts. If there is one thing which is vital it is that the civil courts should prevail. Very often the civil courts say that as a matter of convenience a man should be remanded under military escort—

§ Mr. Woodrow Wyatt (Birmingham, Aston)
It may save time if I interrupt my hon. Friend and, as I was on the Committee, suggest what it means—

§ The Deputy-Chairman
I am trying to maintain order. I hope that hon. Members will wait their turn to catch my eye.

§ Mr. Wyatt
My hon. Friend gave way and I thought I might save time by making a suggestion.

§ The Deputy-Chairman
The object of giving way is to allow an interjection to be made, but not for the purpose of another speech.

§ Mr. Wyatt
That is exactly what I am trying to do, Sir Rhys. Might it not be that the Clause means that it might be discovered that a man had made a false answer before he was actually enlisted into the Army and that would be a mistake? It might be discovered that the false answer had been made when he was attested and he would still be proceeded against.

§ Mr. Hale
That is quite meaningless.
The whole point I am putting, but which, in view of the intervention of my hon. Friend the Member for Aston (Mr. Wyatt) I do not seem to be putting clearly, is that if a man commits an offence by making a false statement, knowing it to be false, he has committed an offence—

§ Brigadier O. L. Prior - Palmer (Worthing)
An offence against civilian law.

§ Mr. Hale
Exactly, this Clause says so.
He has committed an offence against civilian law and is liable to be prosecuted in a civilian court for that offence whether he be a soldier, sailor, airman, Royal Marine, worker, Member of Parliament, or whatever he is. No subsequent enlistment will affect his liability to be tried by a civil court for a civil offence so described. That was the whole point I was putting. I thought it was a quite simple point. The Clause says that it will still remain a civil offence. All I am saying is that it will and I cannot see why anyone should doubt it.
An hon. Member opposite raises his hands as if this were a trifling matter, but this is one of the fundamentals of the Constitution. If we allow courts-martial to operate in this country in time of peace and to try offences which ought to be tried by the civil courts, we shall have abolished every security the citizen has. That is why Wolfe Tone was sent to the scaffold.
The issue is whether a modern Wolfe Tone can be tried in time of peace. It is no small issue and that is why this Committee should be jealous of any assertion in any Act which could tend to deny, cast doubts upon, or make doubtful the proposition that the civil courts are always supreme. I would not have developed the point in more than two sentences but for the comments of my hon. Friend the Member for Aston and the attitude of hon. and gallant Members opposite, who do not seem to realise its importance. My hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes) has often expressed the view that there are too many military men in this House. The time may come when there are so many that civilian Members would be under a difficulty in explaining points known for centuries to every school child, but as a civilian I am trying to make this point.

§ Brigadier Prior-Palmer
The hon. Member for Oldham, West (Mr. Hale) has referred to me. He suggested that subsection (2) casts doubt on whether the civilian law is supreme over military law. 1947 How can he interpret the subsection in that way when it declares that For the avoidance of doubt the civilian law takes precedence over military law? The hon. Member has raised a completely unnecessary point.

§ Mr. Michael Stewart (Fulham, East)
If I understand the anxiety of my hon. Friend the Member for Oldham, West (Mr. Hale), it is that subsection (2) indicates that a man could still be proceeded against under the Clause even when he becomes subject to military law. My hon. Friend is anxious that that should be so, but what worries him is why it is necessary to say it specifically in the Clause and whether, by saying this in the subsection, doubt is cast on the generality of the principle. As my hon. Friend put it, why should anyone ever have doubted it? I submit that it might be doubted for the following reason.
The offence in question is the making of a false statement for the purpose of being attested. Suppose that a man comes forward and, for the purpose of being attested, makes a false statement, on the strength of which he is attested. Later, it is found that the statement is false and it is proposed to proceed against the man. He might try to argue, and at first sight it might seem plausible for him to say, "You accepted this statement and made me a soldier on the strength of it. Therefore, having made me a soldier, you cannot say, 'Now, we do not believe that statement,' because you have acted on it and you have attested me."

§ Mr. Hale
My hon. Friend has put my argument with more clarity than I could, but he now comes to a point where I cannot agree. If, for instance, I make a false statement to obtain a pension, nobody can say, "We cannot prosecute you when we have paid you the pension."

§ Mr. Stewart
That is not the same thing. A man might make a false statement for the purpose of being attested. That, apparently, was not something which he wanted but is something from which the State gets an advantage. But the State would not get an advantage in paying my hon. Friend a pension; my hon. Friend would get the advantage.
1948 Suppose that a man makes a false statement and, as a result, is attested. It may well be contended that the State has obtained an advantage from the false statement; it has got a new man in the Army and, therefore, it should not be allowed to turn round later and say, "We will prosecute you." I agree that that is not an argument which would hold water. I only submit that it is a plausible argument. It is an argument which might be advanced, and, therefore, it is wise to preserve that very superiority of the civilian law about which my hon. Friend is so concerned, to make it quite clear that that plausible argument does not hold water and that all that is done in subsection (2), as I understand it, is "for the avoidance of doubt." I hope that this may satisfy my hon. Friend.

§ Mr. Hale
Plausible—but there is no reason for doubt.

§ The Solicitor-General (Sir Harry Hylton-Foster)
I should like, first, to apologise for the fact that in the service of the House in another direction I could not be in the Chamber when the hon. Member for Oldham, West (Mr. Hale) raised his difficulty. I would advise the Committee that the only reason for subsection (2) is to assert beyond possibility of doubt that very supremacy of the civil law that the hon. Member has raised.
The reason for the subsection is that Clause 61, later in the Bill, might conceivably leave room for argument that after a person had been attested and had become subject to military law, he had been taken out of the power of the civil law by some intervention of military law. The object of subsection (2) is simply to assert beyond doubt that that is not the fact. The true position is as the hon. Member for Oldham, West, in high and greedy support of the Constitution, asserts: that the civil law remains supreme.

§ Mr. Hector Hughes (Aberdeen, North)
The Committee will agree that this short debate on the Clause has shown how right my hon. Friend the Member for Oldham, West (Mr. Hale) was in raising this point. He has shown that the Clause is ambiguous. It is quite wrong that soldiers should have to take out construction summonses to ascertain the meaning of a Clause. I earnestly ask the Government to take back this 1949 Clause and to take the advice of the learned Law Officers upon it, with a view to drafting it in a form that any soldier can understand.

§ Mr. Turner-Samuels
This is a very important matter. Although the Committee is grateful for the intervention of the Solicitor-General, I am sure that the scope of his answer is entirely unsatisfactory. I will indicate why his observations, although very fluent, were lacking in an important particular.
As I understand the Solicitor-General, his answer, in default of an answer from the Minister, was this. He says that the reason the Clause is included is to make it perfectly clear that the civil law shall prevail above the military law, whatever the circumstances. To clarify that position, the Solicitor-General called in aid Clause 61, which he gave as the reason for subsection (2) in this much earlier part of the Bill.
I do not think that the hon. and learned Gentleman is correct. Clause 19 obviously refers to a recruit, somebody who has not yet become part of the Army. To that extent, the Clause quite properly points out that as the man is only a recruit and still is, or ought to be, within the grip of the civil law, the mere fact that because of the attestation he may have become responsible to military law shall not exclude the supremacy of the civil law. That is one thing.
Clause 61 is an entirely different matter. The Solicitor-General has responsibly told the Committee something which I do not think is correct, and I want him to look at Clause 61. It relates to the making of a false statement on enlistment, but by that time the man has become part of the Army and is subject to military law. The Solicitor-General says that that will take the man out of the military law and bring him within the supremacy of the civil law.
I challenge the hon. and learned Gentleman on this. I should like him to read the two Clauses very carefully. I agree that under Clause 19 a man is entitled to the protection and administration of the civil law, but under Clause 61 he is due to no such entitlement. All he would get at that stage, and all that he is entitled to, is to be dealt with under the military code and law. He is not entitled to be dealt with under the civil law.
1950 I am subject to the matter being looked at again, but if I am right I say that this is a serious matter, and for two reasons. First, the Minister could not give any explanation at all. Secondly, when we got an explanation from a Law Officer, it was in my opinion not accurate. Thirdly, the matter is important because it concerns the question of whether the military law in all circumstances should be subject to the civil law. That matter ought to be very much more clear than it is at present.

§ Sir Patrick Spens (Kensington, South)
May I, with very great respect, reinforce what the Solicitor-General has said? The difference between the two Clauses is this. Clause 19 (1) makes a false answer in the attestation paper a civil offence. Clause 61 makes exactly the same answer a military offence. This is, therefore, one of the many instances where a civil offence is also a military offence.
The situation is that if a recruit gives a false answer and gets off going into the Service, he obviously cannot be brought before any court-martial. It is for the civil authorities to make up their minds whether or not to prosecute. If, on the other hand, he has made a false answer to get into the Service and when he is in the Service it is found out, the situation is that he can be brought before a court-martial or can be prosecuted by the civil authorities. All the evidence which was brought before the Select Committee showed quite strongly that whether he shall be prosecuted before a court-martial or before a civil court is a matter for the civil authorities to decide.
However, before he can be brought before a civil court he must be handed over to the civil authorities by the military authorities. I do not intend to be in the least disrespectful to commanding officers or others concerned, but when it is found that the man has committed a military offence it may be very well said on the military side, "Why hand him over?" Clause 19 (2) then makes it clear that he still remains subject to civil law and must be handed over if required.