§ Mr. Hector Hughes (Aberdeen, North)
I beg to move, in page 34, line 26, to leave out the second "or."
I suggest that it would be convenient to discuss at the same time the Amendment, in line 27, after "law" to insert:or any act or omission punishable by the law of Scotland which if committed in Scotland, would be punishable by that law,and the Amendment, in line 37, at the end, to insert "or Scotland."
§ Mr. Hughes
The Government have an advantage tonight which the Select Committee did not have, and which the Government themselves did not have on the Second Reading of the Bill. That advantage is that they have the new Lord Advocate here, to assist them with advice on the law in general and on Scottish law in particular, with which the Amendment deals. This will, I have no doubt, 2019 assist the Government to take the right course with regard to my Amendments, and to accept and incorporate them in the Bill. Therefore, I commend them to the Committee as related Amendments which will manifestly improve the Bill.
I feel confident that the Lord Advocate will wish to make his debut in this Chamber by gladly accepting the Amendments and the improvements which they propose. I am not wedded to the form of words used in them, and if the Government will accept the principle embodied therein I shall be very happy. The Clause, as amended, would read:(1) Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere shall be guilty of an offence against this section.(2) In this Act the expression 'civil offence' means any act or omission punishable by the law of England which, if committed in England, would be punishable by that law or any act or omission punishable by the law of Scotland which if committed in Scotland, would be punishable by that law.It is obvious that these Amendments are designed to secure that a person who in Scotland commits an offence against Scottish law shall be tried by a Scottish civil court.
On Second Reading, I made the point that this is a British Bill which purports to apply British law to British soldiers, but that, in effect, it does not do so because Scotland is still part of Britain, and Scottish law is still part of British law. What the Bill actually does is to apply English law to British soldiers, and not to apply Scottish law which, as I have said, is part of British law.
I make no point at all about military offences which are codified by Clauses 24 to 69. My argument relates solely to civil offences which are the subject of the Clause. Civil offences are not codified at all in the Bill, but are dealt with by applying English law—not Scottish, and, therefore, not British law—to British soldiers.
The Clause defines the expression "civil offence," and in this Measure "civil offence" means any act or omission punishable by the law of England which, if committed in England, would be punishable by that law. Obviously, Scottish law is entirely ignored. The proposed Amendments would cure that omission, and their advantages are set out in the argument which I adduced on Second 2020 Reading, and which I shall not now repeat.
On Second Reading, the Minister gave me a very inadequate reply, and the right hon. and learned Member for Kensington, South (Sir P. Spens), the Chairman of the Select Committee, purported on that occasion to reply. What he said was completely inadequate, completely irrelevant and was no answer to the points which I had raised. I say that with all respect to the right hon. and learned Chairman of the Select Committee, because I know of his great and learned work in that Committee, but I shall show that his reply on that occasion was not addressed to the arguments that I ventured to put before the House, and was quite inadequate.
I shall refer to the arguments that he adduced. I should like to say in passing that in presenting these arguments to the Committee I am not alone. I am supported by learned opinion in Scotland, by university professors, and by practising lawyers at the Scottish Bar. On that occasion, I quoted the learned Professor of Law in Aberdeen University to the effect that one would have expected the Select Committee, in reviewing the field of British law for the purpose of drafting this permanent Bill, which is not like earlier Army Bills—
§ Mr. Hughes
Please allow me to present my argument.
This is a permanent Bill. It is not to last only one year, and one would have expected that, in drafting the Bill, and in particular Clause 70, which relates to civil offences, the Select Committee would have reviewed the whole field of British law.
§ Mr. Wigg
If my hon. and learned Friend is going to charge the Select Committee with neglect, one would have expected him to get clear in his mind the difference between the Bill which we are now discussing and the Army Annual Bill, because quite clearly he does know the difference.
§ Mr. Hughes
I thought that my hon. Friend was going to say that, if I am charging the Select Committee with neglect, I should do so by means of a Motion on the Order Paper. I ask him not to take my criticism so much to heart, 2021 and to allow me to criticise this Clause and to propose my Amendments, without his seeking to make a mountain out of a molehill.
I was about to say—
§ The Chairman
If the hon. and learned Member does not give way, the hon. Member for Galloway (Mr. Mackie) must resume his seat.
§ Mr. Hughes
I am trying to address to the Committee an argument which will be understood by those familiar with military law, like my hon. and gallant Friends on this side of the Committee and by lawyers, but which may not be understood by farmers.
I was about to quote Professor Smith, Professor of Law in Aberdeen University, on this point. He said:… in completing a military code for the British Army it would be appropriate … to take into consideration at each stage the solutions not only of the English legal system but of the Scottish legal system as well. The better of the two should be adopted or indeed it might be possible in some respects to improve on both.I have mentioned that for the purpose of indicating to the Committee the grave nature of these Amendments. It is obvious that the Select Committee from the start set out to draft an English Bill applying English law to British soldiers, instead of carrying out its remit of drafting a British Bill applying British law—
§ It being Ten o'clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again.
§ Committee report Progress; to sit again Tomorrow.