Clause 70.—(CIVIL OFFENCES.)

HC Deb 17 February 1955 vol 537 cc570-606

3.50 p.m.

Mr. Hector Hughes (Aberdeen, North)

I beg to move, in page 34, line 26, to leave out the second "or."

The Chairman

I think it would be convenient to discuss, at the same time, the two other Amendments to this Clause in the hon. and learned Member's name.

Mr. A. Woodburn (Clackmannan and East Stirlingshire)

I do not think it would be appropriate, Sir Charles, to discuss with this Amendment the one in my name, in page 34, line 30, after "section" to insert: Provided that a person subject to military law shall not be tried by court-martial for a civil offence committed in Scotland without the consent of the Lord Advocate.

Mr. Hughes

It was made clear on 9th February that it would be convenient to consider with the Amendment which I have moved the other two in my name, in page 34, line 27, after "law" insert: or any act or omission punishable by the law of Scotland which, if committed in Scotland, would be punishable by that law, and in line 37, at end, insert "or Scotland."

I resume the speech I was making when the House rose on 9th February, in which I was explaining that my three Amendments were designed to secure that a person who, in Scotland, commits a civil offence against Scottish law shall be tried in Scotland by a Scottish court. This is not an academic matter; it is very practical and real, because it may cost a person his life in England but not in Scotland. The most illuminating way of making clear to the Committee the gravity of the Amendments is by showing how a Scottish person would be prejudiced if tried by English law.

The example that I want to give is that which I gave during the Second Reading debate. The doctrine of "implied malice" is English, and does not apply in Scotland. This doctrine may cost a man his life in England, but not in Scotland. It means that in a case where no malice is expressed or openly indicated, the law will infer it from circumstances such as a deliberate and cruel act, the commission of a felony by the accused, or the killing of an officer of justice in the legal execution of his duty. A recent Royal Commission recommended the abolition of this doctrine, and the different penalties in England and Scotland show how important are my Amendments and how terrible may be the results of not passing them.

These three cognate Amendments were foreshadowed in my speech during the Second Reading debate. On that occasion they were misrepresented and misunderstood, and have continued to be so. I have been attacked as an iconoclast, putting forward Scottish nationalism as against British law. The very reverse is the case, because the Amendments are designed to apply British law to the British Army, while the draft Bill seeks to implement English law for the British Army. So far, the attacks upon my Amendments have been irrelevant and partisan, made by members of the Select Committee seeking fondly, and, I submit, foolishly, to divert attention from the defects of their own offspring.

The arguments which were advanced against the Amendments were directed both to their form and principle. I should like to inform the Ministers concerned that I do not much care about the form, if the principle is accepted—and if the Government think that the form of my Amendments does not carry out the principle which I have enunciated I shall be very glad if they will say that they will take back the Clause and consider it in relation to the principle for which I am arguing.

I want to do full justice to the arguments adduced against me by the learned and distinguished Chairman of the Select Committee, the right hon. and learned Member for Kensington, South (Sir P. Spens). He rose immediately after me during the Second Reading debate and purported to reply to my arguments. He said: Every matter which he raised in his speech was considered in great detail by that Committee … I regret to say, Sir Charles, that this is manifestly inaccurate, and I say that for four reasons. First, the Committee did not include any expert in Scottish law; secondly, the Scottish Law Officers were not present; thirdly, the Lord Advocate's Department was not invoked or consulted; and, fourthly, in page 38 of the evidence it is made abundantly clear that the Committee intended to draft an entirely English Bill and to insert one Clause applying it to Scotland—and this is what it did.

I invite the Committee to look at page 38 of the evidence. It makes it quite clear that when the Select Committee was considering the two systems of law it decided to deal with Scottish law later and separately, but this has never been done. The relevant passage in page 38 begins with Question 253, when the Chairman said: But it is very difficult this interlocking of military and civil jurisdiction. Mr. Scott reminds me that something has to be done about the Scottish courts. You will bear that in mind? In reply, the witness said: Yes, indeed. … It is Section 167. The learned Parliamentary counsel then intervened and said: I do not know if I might mention this now, but I thought probably the most sensible course would be to wait until we have all the Clauses, and then ask the Scottish draftsman to look at it. I think it would be putting undue labour on him to ask him now.

4.0 p.m.

That very proper advice was agreed to by the Select Committee, but was never implemented. The nearest to it is that part of the Bill which, under the heading "Application to different countries" applies the Measure to Scotland, Northern Ireland, the Channel Islands, the Isle of Man and certain overseas territories, including Malaya and the Republic of Ireland.

It would be ironic to suggest that the Bill applies Scottish law, or touches any major point of principle or difference between English and Scottish law. My Amendments are designed to cast a lifebuoy to the Select Committee to enable the members to cure the ill-effects of their proposal and to save themselves from submersion.

The second point made during the Second Reading debate by the right hon. and learned Gentleman who was Chairman of the Select Committee was: I want to deal with the point that we have codified the military but not the civil offences… it is not for an Army Act… to proceed to codify the civil laws of the land. The answer to that is in my Amendments. The implications made by the right hon. and learned Member for Kensington, South are unsound. They make the operation of the Clause difficult and unjust, especially when forces; are operating overseas, for instance, in Germany or Korea.

The implications of the right hon. and learned Gentleman, which, I say, were and are unsound, were that a court may have definitions of military offences, but not of civil offences. I ask him to tell me, not now but later, what happens when definitions of civil offences differ from country to country. The right hon. and learned Gentleman does not answer this essential question, but, clearly, the answer is to codify and define civil offences in the Army Bill—particularly the graver crimes such as murder—according to British law. That is what I ask for. That is what I seek, and that is what I hope the Government will do when they take back the Clause and put it before the Select Committee again for more mature consideration.

The third point made by the right hon. and learned Gentleman was: Why should any civil offence be made a military offence at all? Why should it be triable by court-martial in any circumstances. The answer is … Annex 13 to our Fourth Report… But that is no answer at all. Annex 13 does not deal with this matter, or does not affect the subject of my Amendment. It deals with a conflict between military and civil jurisdiction and not with any conflict or relation between English and Scottish law. Therefore, that falls as being any answer to the principle that I ask should be implemented in the Bill.

The right hon. and learned Gentleman ended by saying: I am not going to take up the time of the House in dealing with the other points mentioned by the hon. and learned Gentleman. I am not by any means certain that I have fully appreciated some of his other comments…"—[OFFICIAL REPORT,. 25th January. 1955; Vol. 536, c. 67–8.] That is no answer to the concrete suggestions which I put clearly and the right hon. and learned Gentleman did not answer because, in my submission, the points that I put so clearly are unanswerable.

I beg the members of the Select Committee to consider the three Amendments on their merits in an informed and statesmanlike way. I beg hon. Gentlemen to leave aside their natural paternal bias in favour of their offspring as it stands and to abandon the tactics of a bad advocate who attacks his opponent rather than his opponent's case. I ask them to realise that this is not a Clause in an ordinary Army Annual Bill. It is a Clause in a Bill designed to be of long duration. It should be considered calmly and constructively, without any bias.

This should not be done, as my critics seem to wish to make it, as a kind of game of the Select Committee versus Scotland. On the contrary, it should be a piece of constructive legislation designed to harmonise both systems of law, English and Scottish, which constitute British law. This permanent Measure should be based upon a kind of synthesis containing the finest elements of the two systems of law.

Questions 253 and 254 of the Minutes of Evidence make crystal clear that the members of the Select Committee, in breach of their remit, intended to draw up an English Bill with a Clause which would merely apply it to Scotland. That is what they have done. They have drafted it on that basis, and the Bill is now before the Committee with its imperfections. My Amendments seek to cure this defect. As I have said, I am not wedded to the wording; I merely ask for consideration of the principle.

I am glad to see that the new Lord Advocate is here. I hope that he will seize the opportunity to make his maiden speech and—

Mr. Emrys Hughes (South Ayrshire)

On a point of order. The hon. and learned Member has referred to the Lord Advocate making a maiden speech. This presents a difficulty for many hon. Members. If the Lord Advocate makes his maiden speech, then, according to precedent, it must be largely non-controversial. I have some doubt how we can question the Lord Advocate and elicit answers from him if we are supposed to be non-controversial. I should like to know, Sir Charles, whether there is any precedent to guide us?

The Chairman

I am afraid that I am beaten by that one.

Mr. Hector Hughes

As usual, my hon. Friend was anticipating. I was saying that I am glad to see the Lord Advocate here. I hope that he will make his maiden speech in reply to my request and that he will conform to the tradition of maiden speeches by saying, in a non-controversial way, that he will accept my Amendment.

Mr. Emrys Hughes

Further to my point of order. It is our procedure that anyone who follows an hon. Member who has made a maiden speech must congratulate him and express the hope that we might hear him very often in our debates. How can any hon. Member do that if the Lord Advocate makes a controversial speech? I submit that this is most unfair on the Lord Advocate.

The Chairman

I shall call the hon. Member for South Ayrshire (Mr. Emrys Hughes), and perhaps he will be able to get round this difficulty.

Mr. Hector Hughes

If the Lord Advocate sets the example of accepting good Amendments when they are proposed, as I am proposing a good Amendment I hope that he will continue in the same way all the days of his Parliamentary life.

I have said that on the Select Committee there was no expert in Scottish law. The assistance of the Lord Advocate, or his Department, was not invoked. This treatment of Scotland, therefore, is no surprise in the circumstances. The Minister who introduced the Bill did so on the basis that it requires no amendment, but the Committee must see that it does, in fact, require the three Amendments which I am submitting. Clause 70 is imperfect, and these Amendments will cure its imperfections.

I have referred to the evidence, and I have made clear the basis on which my Amendments stand. Before the Lord Advocate or the Government decide these grave matters, I beg them to check the views expressed by the right hon. and learned Gentleman who was the Chairman of the Select Committee, and to check them with the leading authorities. I would particularly refer the Government to the "Cambridge Law Review" for November, 1954, page 232 onwards, where they will find complete support for the principle which I am putting forward.

The right hon. and learned Member for Kensington, South said that Clause 70 merely continues the state of affairs established in 1879. In saying this, he overlooks the fact that, in those days, all soldiers were volunteers, and, therefore, were deemed to accept voluntarily the Army code, whatever it may have been; but, today, thousands are conscripts, and this development is much more recent than 1879. The conscripts of today, therefore, are- not deemed to accept the Army code; they are forced by conscription to accept it, whatever it may be and however it may differ from the code of their own country.

The Chairman

I think the hon. and learned Gentleman is now making a speech that would be more appropriate on the Question "That the Clause stand part of the Bill."

Mr. Hector Hughes

No, Sir Charles; it is dead on the Amendment.

To put it in a concrete way, I have instanced the case of a Scottish conscript who is abroad, and who may be subjected to this dangerous doctrine of implied malice, which is not Scottish, but English. He may be made the victim of it, even though he has not in any way assented to it. In my submission, my three Amendments, taken together, will cure this defect.

That is a bare outline of the reasons for these Amendments. I hope that the Government will either accept them, or, at worst, promise to consider them in conjunction with the Scottish Law Officers. If not, I hope that the Committee will remit the Bill to the Select Committee, so that it may reconsider this Clause in the light of these Amendments.

Sir Patrick Spens (Kensington, South)

As a great deal of the speech of the hon. and learned Member for Aberdeen, North (Mr. Hector Hughes) has been directed against me personally, I hope that the Committee will forgive me for trying to reply again, fairly shortly, to what he has said.

I have very great respect indeed for anything that comes from Scottish lawyers, as I am a Scotsman myself, and nothing but a Scotsman. I have a very great deal of respect, in particular, for Professor Smith, of Aberdeen, who, I am inclined to think, is mainly responsible for this point being taken at this stage.

Mr. Hector Hughes

I should like to make it perfectly clear that I take complete responsibility for the principle of my Amendments. I quoted from Professor Smith, because I, too, have very great respect for his distinction as a lawyer, and I was glad to have his support for my Amendments.

Sir P. Spens

Never for a moment did I suggest that the hon. and learned Gentleman would not take full responsibility for what he said and for the insinuations which he made in his speech. Of course, he docs; he always does. Nobody will accuse him of any form of intrepidity in this matter.

There is a serious point in this Amendment, and one which was considered by the Select Committee long before we finally recommended the draft Bill to the House. Every Clause was gone through, and the draft Bill was submitted to the Scottish Office and its advisers, so that there is no question about this matter not having been very fully considered.

4.15 p.m.

To make the situation clear, I repeat that, wherever troops are stationed in England, whether they be English, Scottish, Irish or Welsh troops, or anybody else, they are subject to the civil law of England and the civil courts of England, and they cannot be tried by court-martial for civil offences committed in England unless the civil authorities are willing to allow them so to be tried. Similarly, troops stationed in Scotland, whether English, Scottish, Welsh or Irish, can all be tried, and must be tried, for civil offences committed in Scotland according to the Scottish law by the civil courts, and they cannot be tried by court-martial for civil offences committed in Scotland unless the civil authorities say that they may be so tried.

It is quite possible that, shall we say, one of the Black Watch, which regiment has just gone to British Guiana, had committed a civil, offence in Scotland before he went there, and that it was not found out until after he reached British Guiana. Even then, he cannot be tried by court-martial in British Guiana unless the civil authorities in Scotland are willing to allow it.

Let us suppose—and this is the real point at issue—that British troops stationed abroad, whether English, Scottish or Irish troops, do, in fact, commit civil offences which are not military offences. Are they to get off? They are, of course, subject to the ordinary civil law of the place, and they are liable to be tried by the local civil authorities, whoever they are, unless special arrangements are made to exempt them when stationed abroad. But, supposing that they commit offences which are civil offences according to English law, but are not military offences, are they to get off altogether, or are they to be tried by court-martial?

It is true that what the Select Committee has said is that the code to be applied to civil offences which are not also military offences is the English code. The hon. and learned Gentleman and those who agree with him—and I have a great sympathy with this feeling—say that that is very hard on a Scottish soldier who, having committed an offence when stationed abroad which is an offence under English law, finds that he may be rendered liable to it.

But what is the alternative? It is that English soldiers stationed abroad who commit English civil offences shall be triable for them by court-martial, and that Scottish soldiers stationed abroad who commit civil offences under Scottish law shall also be tried by court-martial. That is how the hon. and learned Gentleman and his hon. Friends would have this Clause altered. This is purely a question of practice, because no one has the slightest idea who is a Scottish soldier and who is an English soldier. Are we to say that every young man who is at present serving in the Black Watch in British Guiana is a Scottish soldier? There are hundreds of English soldiers, as well as Welsh and Irish soldiers, in every Scottish unit, and in every English unit there will be three or four nationalities.

I want the hon. and learned Gentleman to consider this point very carefully. This is a code that will be administered not by lawyers but by officers sitting in court-martial and the only help they have may be a manual. A man is brought up, say in British Guiana, and alleged to have committed an offence which is a civil offence by Scottish law. If he says, "I am not liable because I am English," or vice versa, the first step of the court-martial must be to decide whether the man is English or Scottish—unless we put in a Clause that everybody in an English unit is deemed to be English and everybody in a Scottish unit is deemed to be Scottish. Otherwise, the first point to be decided at every court-martial will be the nationality of the accused. For a civil offence which is not a military offence the court-martial will have to start by inquiring into the question of birth, domicile, residence and all the rest of it.

Take my own case. I am a Clydesider of Clydesiders. I was born inGlasgow and lived in Glasgow for the first 10 years of my life. I have been in England since. I was educated in England, was called to the English Bar and joined an English regiment, but I hope to return some day to Scotland. What am I at present? Any court would have the greatest difficulty in deciding whether I am a domiciled Englishman or whether my domicile in Scotland still survives. How can a court-martial take place if it first has to decide a question of that sort?

On the Select Committee we had to make a choice. We adopted what had been the law in 1879, that where offences committed are not military offences the test shall be, "Are they offences under English law or are they not?" We could, of course, have made everybody liable for all the offences under English law and Scots law, but then we should have to teach court-martial practice to officers by lectures, and so on. We should have the very greatest difficulty in getting a court-martial on its legs and able to start. Although my sympathies are very much with the right hon. and learned Member for Aberdeen, North, I think that in the circumstances the Bill should remain as it is.

Mr. Woodburn

Would it be possible in some cases for a soldier to opt as to which law he wished to be tried under?

Sir P. Spens

That is a matter for the Secretary of State for War, and not for a lawyer.

Mr. Emrys Hughes

Should not these legal questions be addressed to the Lord Advocate? As a layman who is exceedingly ignorant of these technicalities, am I not justified in asking one of the chief Law Officers of the Crown to give the Committee his considered views, according to Scots law?

Mr. Hector Hughes

May I ask the right hon. and learned Member for Kensington, South (Sir P. Spens) a question before he sits down?

The Chairman

The right hon. and learned Member seemed to be satisfied with what his English hon. Friend has said.

Mr. Emrys Hughes

I am not satisfied. I was born in Wales. I do not understand the complexities of Scots law and I think it is the duty of the Lord Advocate to explain them to the Committee.

The Chairman rose—

Mr. Hector Hughes

May I ask a question of the right hon. and learned Member for Kensington, South, before he sits down. [Laughter.] It is quite customary to use that phrase and I do not see anything amusing in it. The right hon. and learned Gentleman made a speech which, superficially, was persuasive, but it does not persuade me. How would he apply his speech and his reasoning to the case of a young Scottish boy conscripted into the Army, and later charged with murder, and who says, "I want to be tried according to Scottish law, because I am against the doctrine of implied malice. If I am tried according to English law the doctrine of implied malice may hang me. That doctrine does not apply in Scots law and I may be acquitted, because I am innocent".

Sir P. Spens

If either a Scotsman or an Englishman committed murder in Scotland he would be tried by a Scottish civil court according to the law of Scotland. If either of them committed murder in England, he would be tried by a civil court, according to the law of England. If the murder were committed abroad, he would be tried by the law relating to murder in that country, in a local court and by the local authority, unless arrangements had been made by the local authority that it would allow British soldiers who committed murder there to be tried by court-martial. If that agreement had been entered into by our Foreign Secretary with the foreign country, then the civil authorities would allow the man to be tried by court-martial for murder, and he would be tried under this Clause and according to the law of England.

The case cited by the hon. and learned Member for Aberdeen, North is the one possible case where a Scotsman being tried according to the law of England might feel that he ought to be tried according to the law of Scotland.

Mr. George Wigg (Dudley)

We are not only having a nice legal argument, but are discussing a code of discipline. The right hon. and learned Member for Kensington, South (Sir P. Spens) has made a very substantial legal case. In so far as I am competent to express an opinion, I think he has made an overwhelming case in pointing out how utterly impossible the position of a court-martial would be if it was uncertain under which code a man was to be tried. There would be no means of deciding that question. I cannot imagine any more disruptive Amendment than this, and if anybody wants to destroy discipline in the Army he will vote for the Amendment.

My hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes) may or may not be right on his points of law, but there are one or two things that he does not understand—and this is astonishing—and one of them is the procedure by which a Select Committee is set up and what happens when it discharges its duty. Time and time again my hon. and learned Friend asked the Government to convey his suggestions to the Select Committee. That body met for two and a half years. Its Report has now been presented, and as a Select Committee it is no more. The responsibility now lies with the Government.

My hon. and learned Friend again charged those of us who were on the Select Committee with not discharging our remit. Here I find difficulty in taking him seriously. It was not part of the remit of the Select Committee that we should reverse the military decision of Culloden or of the Battle of Flodden. The point is an English one and as an English nationalist I do not think anything about it. My form of English nationalism expresses itself in a rather simple way. I am one of those whose origins are quite English.

As my name implies, my ancestors formed part of the reception committee that met William the Conqueror, at Hastings. But my nationalism never got me any further than a mild preference for the word "go" rather than for the word "proceed," and a violent preference for the word "beginning" rather than for the word "commencing." I know, from military experience, that one would never call a regimental sergeant-major "illegitimate" because that would not be understood, whereas everybody knows what is meant when one calls him by another word meaning the same thing. My Anglo-Saxon preference has never really gone beyond that.

4.30 p.m.

My hon. and learned Friend the Member for Aberdeen, North has introduced a rather crabbed, confined, academic, musty, legal argument into a practical discussion. It is a practical discussion, because, as the right hon. and learned Member for Kensington, South pointed out, when military law comes to be applied to soldiers serving abroad, there is no citizens' advice bureau round the corner, nor is there a legal expert. There is only the Manual of Military Law and a copy of the Army Act, with its footnotes. We must make sure that the law is understandable and can be simply applied, because the persons charged with applying it are not only concerned with abstract, legal doctrine, but also with maintainng discipline. I ask my hon. and learned Friend to remember that.

Mr. A. C. Manuel (Central Ayrshire)

I am impressed by the case which my hon. Friend has built up from his point of view, but does he not recognise that if a young Scottish lad is conscripted into the Armed Forces and is sent abroad he would not necessarily be subject to the civil law? With all due deference to the legal profession to which my hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes) belongs, I do not accept that he would. If he is charged with murder, and if he is in the ranks, I do not think that that would apply. Any Scot is then in the position of being tried under the English penal code, and if he had not been conscripted away from Scotland that charge would not have been brought against him, except in so far as certain aspects of a charge can be brought against him, such as those indicated by my hon. and learned Friend.

Mr. Wigg

In considering matters of life and death, let us use our brains and not our hearts. Let us get rid of emotion in dealing with this matter. Do not let us worry about the Scottish lads who have been conscripted, because there are far more English lads who have also been conscripted. A considerable number of English lads have the misfortune to be stationed in Scotland, and it is a much greater misfortune for an Englishman to be stationed north of the Border than it is for a Scotsman to come south of the Border.

Mr. Manuel

I should like my hon. Friend to recognise that we accept gladly, and give overwhelming hospitality to, the English lads stationed in Scotland, and that I have never heard of one who did not appreciate it, acknowledge it, and like his stay in Scotland.

Mr. Wigg

Equally, I have never met a Scotsman who came south of the Border and ever went back. Like the right hon. and learned Member for Kensington, South, who talked about going back, he always stops short at Carlisle.

Mr. Emrys Hughes rose—

The Chairman

Unless the hon. Member for Dudley (Mr. Wigg) resumes his seat, the hon. Gentleman is out of order in rising.

Mr. Wigg

I am sorry if, for the first time in my life, I have been led astray by a Scotsman.

I want to deal with the point raised by my hon. and learned Friend the Member for Aberdeen, North, and to ask him to reconsider his submission that he regards it as a misfortune that Scottish lads should be tried by English law. I think that English lads might regard it as a misfortune to be tried by Scottish law. I would not regard it as a misfortune. Obviously, we have to accept the law of the country in which we are living, and it seems to me very important that, wherever possible, the civil law should be paramount. I think it is absolutely vital that wherever a soldier happens to be in these islands, he should be tried by a civil court and not by a military court.

If my hon. and learned Friend is considering the hardship to Scottish lads who are tried under English law, then, before we know where we are, we shall need to find a machinery of justice to deal with the complaints of English lads. We shall not be able to stop there. We shall have to consider the hardship to the lads of Northern Ireland. When we have done that, we shall have a wonderful system of law in the Army, but we shall have no Army. It will become a chaotic mob.

One of the dangers about the Army is barrack-room law. We have enough of it anyway, and we do not want any more. I beg my hon. Friends to reflect that we are dealing here with something more than abstract, legal argument. Let them draw on their imagination and ask themselves what would happen in one of the awkward places, such as British Guiana, or an odd spot in Kenya or in Singapore, where an offence is committed and where a man is remanded for a summary of evidence, and then there had to be carried out a wonderful hunt in order to establish whether he is of English or Scottish domicile.

I suggest that among the first to complain would be my hon. and learned Friend. He would put Questions to the Secretary of State, saying, "Here is little McTavish. He has been under arrest for the last three years because we do not know whether he was born in John o'Groats or in Berwick." After all, if he employed a lawyer like my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) he would serve a life sentence awaiting trial, while this argument went on. What has been discovered here is an absolute mares' nest. In my judgment, it has no substance in law and certainly no substance at all from the military point of view. Therefore, I hope that the Committee will waste no more time on it, but will proceed to the more important matters which it has to consider.

The Lord Advocate (Mr. W. R. Milligan)

I hope that any word I say this afternoon will not be controversial, because I particularly do not want to encourage the hon. Member for South Ayrshire (Mr. Emrys Hughes) to be controversial should he speak later. This is not a controversial issue at all in the sense in which the House or the Committee use the word "controversial." All of us, on both sides of the Committee, I am sure, are anxious to get fair treatment for everybody in Her Majesty's Forces from wherever he comes.

The only controversy so far as I can see at the moment is on the other side of the Committee. The Amendments which have been put down to the various Clauses of the Bill have, I think, been put down in order to raise the issue to which the hon. and learned Member for Aberdeen, North (Mr. Hector Hughes) referred. A feeling apparently existed, and was noticeable, in the various speeches on Second Reading that somewhere in the Clauses of the Bill, or in the existing law, there is some unfairness, particularly to Scottish soldiers.

I hope to be able to convince the Committee that, in point of fact, there is no unfairness to anybody under the existing law or in the Bill. Before coming to the Amendment which the Committee is considering at the moment, it might help the Committee and save time later, when we come to the other Amendments, if I attempted to set out the position in law as it is at present, both as regards courts-martial and civil courts.

I will deal, first, with courts-martial. Any person who is subject to military law is liable to be tried by court-martial for, first, any of the specific offences set out in the Bill as charges triable by court-martial, for example, Clauses 24 to 69, which were discussed when the Committee last met. These may, in general terms, be described as military offences. They are all offences with a military flavour about them.

Secondly, any man subject to military law may be tried by court-martial for any offence which, if committed in England would be punishable by the civil law of England. In other words, the English civil code is incorporated—as it has been now for 70 years—in the law of court-martial. In practice, of course, a man in the Army who has committed an offence which is a civil offence would, in normal cases, be tried by the civil courts and, as we shall see later, the civil courts have the first opportunity of trying him.

As the Committee will know there are certain exceptions to the general rule which I have set out; namely, particularly serious offences—treason, murder and the like, set out in Section 70 (4)—which, if committed in the United Kingdom are only triable by a civil court. The result is that, wherever the offence is committed the whole Army is thus under one code so far as courts-martial are concerned. This is highly necessary, highly desirable and has been the law for at least 70 years.

May I turn now to the civil courts, where the position is materially different? The liability of a soldier to be charged in a civil court is exactly the same as that of a civilian. Merely joining the Army does not exempt a man from being tried when he commits a civil offence. He can in general—and I stress the words "in general"—and I am talking of civil courts at the moment—only be charged if the offence is an offence against the law of the country where the offence is committed. Clause 70, which we are now discussing, has nothing whatsoever to do with trial in civil courts nor does it create any new civil offence.

May I give three examples of what can happen so far as civil prosecution is concerned? If a man, subject to military law commits an assault in Yorkshire he can be charged in Yorkshire. Assault is a crime in England. Similarly, if he commits an assault in Perthshire he can be charged in Perthshire. Assault is a crime in Scotland. If, however, he attempts to commit suicide in Perthshire he cannot be charged in the civil courts. An attempt to commit suicide is not a crime in Scotland. I think the examples will show how narrow is the position so far as civil offences are concerned. There is another Amendment arising from another Clause which does deal with safeguards, but I think I could leave that to a later stage in our discussion.

The final position which I have set out, is, so far as civil courts are concerned the same for all soldiers, regardless of their parentage or of their homes. May I just note the exception? The exception depends on an English Statute and on a Scottish Statute, which provide that certain crimes may be tried in the English or in the Scottish courts although they have been committed abroad. They are special provisions, but the general position is as I have outlined.

The Amendments in general—and I am only talking generally now—have, of course, been carefully considered by all Scottish Members, because we are as anxious as I know are all other Scottish Members to see that everyone gets a fair deal under this Bill, but having considered this matter with the greatest care I am quite satisfied that the Bill does not contain any provisions which are unfair to any soldier whatever may be his place of birth or upbringing.

Several suggestions have been made, not only during Second Reading but today and throughout the country, of various methods by which the present situation might be improved. A code has been discussed. The right hon. and learned Member for Kensington, South (Sir P. Spens) referred to it. I respectfully agree with him that it would be unfortunate if we introduced a further code of law—and, at the end of the day, I very much doubt whether it would be to the advantage of the soldier. He would have great difficulty in getting the specialised help for which he might well feel inclined to ask. There would be very few lawyers who would be able to help him, because very few would know the code.

The right hon. Member for East Stirlingshire (Mr. Woodburn) referred to the possibility of a soldier, on joining the Armed Forces, opting as to whether he wanted to be tried by the law of Scotland or by the law of England. Unless it was developed a little I think that that would be an extremely difficult and unsatisfactory way of approaching the problem. We might well get someone who had no connections with Scotland at all—coming, say, from Cornwall—selecting the Scottish law, or someone from the north selecting to be tried by English law.

On the other hand, if someone was asked if he was a domiciled Scotsman I am quite certain, like my right hon. Friend the Member for Kensington, South that he would not know. There must be many hon. Members of this Committee who do not know at the moment whether they are domiciled Scotsmen or not. It may be difficult to know whether one is a domiciled Scotsman or Englishman when it comes to questions of testamentary disposal and the like. That is the position, as I see it, concerning the general law, and the law which will continue to be the law on these matters if this Bill receives the Royal Assent.

4.45 p.m.

I turn now to the Amendment which has been moved by the hon. and learned Member for Aberdeen, North. I note that when last the Committee met he said: 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."—[OFFICIAL REPORT, 9th February, 1955; Vol. 536, c. 2025.]

I do not know whether the intention of this Amendment was to say that no man might be tried by court-martial if he could be tried by the civil court—whether the English civil court or the Scottish civil court. If that was the intention the Amendment certainly does not achieve it. The only effect of the Amendment is to make the man liable to be tried by an additional code of law. Members will note that the Amendment, as incorporated in the existing Clause and as read out by the mover says: 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.

If the Committee gave effect to that, it would mean that a person could be tried by court-martial, not only for a typical military offence but for any offence against the civil law of England or for any offence against the civil law of Scotland. I do not think that that was what was intended but, on construction, that is what the Amendment means as a question of law. I therefore invite the Committee not to widen the Bill by introducing these additional words and making the lot of the Serviceman even more difficult than it is today.

I do not think it is for me to suggest any other reason or any other meanings which should be attached to it, because the hon. and learned Member himself said that it was intended to ensure that a Scottish civil court should try anyone who was to be charged with a civil offence; in other words, to remove from the courts-martial any offences which also ought to be civil. That would be an extremely difficult, and I think unsatisfactory, thing to do, because tremendous numbers of these court-martial offences, which the Committee dealt with on the last occasion are themselves, by common law or by Statute also criminal offences.

Were this Amendment accepted, the result would be that the civil courts would try practically all these offences set out in the earlier Clauses of the Bill. I think it desirable that there should be cases dealt with appropriately by court-martial, and I invite the Committee to reject this Amendment. I do not think that any unfairness is created for anyone. I consider it absolutely necessary that soldiers, wherever they may be, should all serve under one simple straightforward code known as military law.

Mr. Emrys Hughes

May I express the gratification of the Committee that at long last we have had an opportunity of listening to the Lord Advocate? We have watched his career with great interest. Now we see that the Government have so much confidence in him that they choose a Scottish lawyer with no previous experience of speaking in this House to fill the gap. The English lawyers have been kept in reserve because the Government thought that a clear mind, trained in the Scottish courts, had the necessary perspicacity and clear legal training to explain this complicated Measure to the Committee. I know that we shall have pleasure in listening to the Lord Advocate again, and I hope that on future occasions he will be able to make a speech worthy of a better cause. I have done my best for the Lord Advocate.

The point made by the right hon. and learned Member for Kensington, South (Sir P. Spens) did not impress me at all. The most impressive case which he could think of to convince the Committee was that of a Scottish soldier in British Guiana. What was to be done about such a man? The right hon. and learned Gentleman foresaw a long and complicated situation which would result if this Amendment were passed. I submit that the problem could be easily solved by bringing the Scottish soldiers home from British Guiana; in fact by bringing all the soldiers home from British Guiana. I am quite sure that no one would be more pleased about that than the Scottish soldiers themselves.

Mr. Woodburn

We all listened with appreciation to the Lord Advocate, and we Scotsmen are indebted to a fellow Scot for giving us such a lucid explanation of the law as applied both in this country and abroad. I wish to add my congratulations to the Lord Advocate upon his maiden speech. Judging by his attitude at the Dispatch Box, even had everyone broken the rule of the House and interrupted him, it would not have disorganised his speech; nor would it have upset him to the extent that some of we less practised speakers might have been upset.

The Committee will appreciate a Scottish Lord Advocate able to expound Scottish law and clear up points of difference. I can assure the right hon. and learned Gentleman that he will have many requests to elucidate points, both in this Chamber and in the Scottish Grand Committee. No one will get more opportunities to perform his functions than the Scottish Lord Advocate.

The debate has been interesting and has turned on this question of Scots or English. I agree with the right hon. and learned Member for Kensington, South (Sir P. Spens) that this is a great and difficult problem. The other night we had a debate on the herring, and sooner or later every hon. Member declared that he was a Scot, although none of us had known it before. It was rather difficult to discover whether a Secretary of State or an Under secretary of State with a name like McLean would be tried under English law or as a Scot—

Mr. Emrys Hughes

Or as an Irishman.

Mr. Woodburn

The hon. Member for South Ayrshire (Mr. Emrys Hughes) would obviously be tried as a Welshman, no matter where he was domiciled.

We encounter great complications when we discuss the question of nationality. I understand that legally there is no such thing as a Scottish or an English nationality, though that seems to be missing in the teaching in English schools. We in Scotland are conscious of the word "British," but south of the Border that does not seem to be so commonly known. It may be that some English soldiers do not know that they are British and that they are subject to any other law except the English law.

From what has been said, I think it is clear that a soldier in Scotland will be tried in the civil courts according to Scottish law and in England according to English law. I do not think that objections will be raised to that from either side of the Border. My hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes) made clear the point of his Amendment, although he agreed that the Amendment might not actually achieve its purpose. I thought that my hon. and learned Friend should have added at the end, "or"—and then said whichever was the better for the soldier, so that the soldier could opt for Scottish or English law. But I disagree that a soldier should be tried according to both codes. If a man is to be tried, I consider one code quite sufficient.

There is the problem that in Scotland there are certain laws—I do not propose to try to interpret them, because the Lord Advocate can do that much better—which may convince a man that he will get a fairer trial in Scotland than under English law. The question of murder may not enter into this, but if we asked anyone in Scotland whether he would rather be tried for murder under the English or the Scottish law, I do not think there is a single Scot who would not say that he preferred to take the risk of the Scottish code. Every Scottish lawyer is convinced that people charged with murder get a fairer trial under Scottish law than under English law.

Mr. Sydney Silverman (Nelson and Colne)

And a good many English lawyers too.

Mr. Woodburn

We gather that in England a person has about three trials and the matter is publicly discussed before a person comes to his trial. In Scotland we think that a man has one trial and that he has a fair chance against the prosecution. The prosecution cannot, as it were, influence the minds of the general public before the trial has taken place. It is this feeling which has influenced a great many hon. Members. They feel that if the English code be applied to some Scots boy abroad—and there have been some unfortunate cases abroad—it may be that the Scots boy would not have a fair trial.

I have had as much experience of courts-martial as most people, and I am satisfied that a great many people who conduct courts-martial do not know much about the law at all, not even their own law. I have seen a man convicted by court-martial when strictly according to the Manual of Military Law he should not have been convicted at all; because, according to the Manual, no court-martial could accept a plea of guilty to the offence with which he was charged. But the court-martial I have in mind went ahead and accepted a plea of guilty.

I agree that according to English law common sense should rule. The man was probably guilty in any case, but the court should not have accepted a plea of guilty. Had the man known anything about the law, either Scottish or English, he would have appealed. I am quite sure that had he been a Scot he would have appealed and the decision of the court-martial would have been overthrown by a superior court, or the Judge Advocate General's Department would have advised the Secretary of State to remit the punishment.

5.0 p.m.

There is no use imagining that the officers at these courts-martial know all about the law, whether English or Scotch. I do not think we exaggerate the possibility of unfairness occurring on some occasions, because I am sure that the proceedings are sometimes disposed of pretty summarily. For serious offences, of course, the matter goes to a higher level for confirmation, and I have no doubt that in many cases it is put right.

I have raised the question whether there is a possibility of a person opting to be charged under either the law of his own domicile, or under the English law. As a matter of fact, the words: 'civil offence' means any act or omission punishable by the law of England or which, if committed in England… could quite easily have read: … any act or omission punishable by the law of Britain or which, if committed in Britain… I do not see why the matter should be limited to one section of the law in this country. It should be much more general.

It has been said that Englishmen do not know anything about Scotch law. Certainly all Scots seem to know about English law. The right hon. and learned Member for Kensington, South has advised us on English law, and as every Scot is born half a lawyer, he is probably at a less disadvantage in dealing with English law than an Englishman would be in dealing with Scotch law.

I hope the Lord Advocate will tell us that he will look into this question of whether it would be possible to grant a soldier the right to opt, as I have suggested, if he felt that he was going to be unfairly treated. In 99 cases out of 100 it probably would not make any difference, but if there is some serious crime for which a soldier could be charged when abroad and a soldier felt that he might be more fairly treated if he were tried under his own law, it seems to me that we ought to err on the side of enabling that soldier to feel that he was getting justice. A sense of injustice is sometimes even worse than the punishment a person gets if he feels that he has had a raw deal.

I hope the Lord Advocate will take into account what has been said by my hon. and learned Friend the Member for Aberdeen, North. It is true that Professor Smith has written a lot about this subject in the Press. I do not profess to be able to judge, but I am satisfied that the Scottish advocates and the Scottish Bar know how to look after their own business. I do not think we can teach them anything. It would be interesting to hear what the Scottish Bar has to say about this question. I should like to know whether the Scottish Bar can give any advice to Scots people on this point. They have at least kept the law separate from English law since the Act of Union, and they ought to be conscious of the rights of the Scottish Bar which should not be left to civilians or even to hon. and learned Members from across the Border to defend.

We are more concerned with the rights of the Scottish soldier, and we suggest that he ought to feel that he is being treated fairly. If some provision could be made whereby anyone feeling in doubt about his treatment could opt to be tried under a legal code other than the law of England, all would be well. If a Scot felt that the Scottish law differed to such an extent from the English law in his case, he should have the right to choose to be tried under the law which was fairer to him.

Sometimes a man who is tried before a court-martial feels that all the heavy odds of the British Army are ranged against him, and sometimes the man whose duty is to defend him knows less about the law than he does himself. I hope, therefore, that such people will be given confidence that they are being treated fairly.

Mr. E. G. Willis (Edinburgh, East)

The Amendment has been moved in order to secure justice for the Scottish soldier and to ensure that he shall be tried under Scottish law. One of the arguments against the suggestion—it has been mentioned several times—is that it might be difficult to decide who was a Scotsman. A Scotsman who commits an offence in England is tried under English law, and an Englishman living in Scotland—as I happen to be, in spite of the remarks made by my hon. Friend the Member for Dudley (Mr. Wigg) that no Englishman likes to be in Scotland—is tried under Scottish law. It seems to me that this matter could be based on domicile.

The point made by my hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes), which to me seemed very relevant, is that today everyone is conscripted into the Army whether he likes it or not. There is no dodging it. This creates a difficult legal position. I do not think there has been much controversy on the subject of trials in England and Scotland, but a case has been quoted by the right hon. and learned Member for Kensington, South (Sir P. Spens), who was Chairman of the Select Committee, of soldiers serving in British Guiana. Let me take as an example the case of a soldier serving in British Guiana. Suppose that soldier attempts to commit suicide. He would be liable to be charged because he comes under English law, but as a Scotsman if he did it in Scotland he would not have been so liable. I think that is the correct interpretation of the law.

The Lord Advocate

He would be equally chargeable if he did it in England.

Mr. Willis

But he would not be chargeable if he did it in Scotland. This is a Scots boy conscripted into the Army, normally domiciled in Scotland, and because he does something which is no crime in his own country he is convicted because he tries to do it in British Guiana.

I am sorry to be controversial with the Lord Advocate, whom I congratulate on his maiden speech, particularly as he happens to be my Member of Parliament. but it seems to me to destroy the argument made by the Lord Advocate that this Bill does not adversely affect the Scots boy. It seems to me that it does affect him. I suggest that it would be possible to decide whether a person comes under Scots law or English law simply by recording his case of domicile. If a boy of 18 comes from Glasgow one can say that he ought normally to have been under Scotch law. I should not have thought that that was very difficult. Certainly the other arguments that we have heard seem to me to be irrelevant.

My hon. Friend the Member for Dudley, who, as a member of the Select Committee, had a lot to say about this, said that we would destroy the discipline of the British Army. What a wild statement to make. Here is a boy in British Guiana who commits a crime. He is arrested and put in detention until such time as the officers decide under what code he should be tried. If the officers know that he is domiciled in Scotland, it is a simple matter. It is on his papers, anyway. The suggestion of my hon. Friend that months would be wasted in deciding his nationality was quite irrelevant to this argument.

Mr. Wigg

My hon. Friend says that the argument is irrelevant, but take the case of a man born in London, the son of Scottish parents. His birth place was in London but his parents had lived in Scotland most of their lives. Would he be Scottish or English?

Mr. Willis

That is the point that I am making. He would be domiciled normally in Scotland and subject to Scottish law, irrespective of the fact that he was born in London. Normally, had he not been conscripted, he would have been subject to Scottish law. All the officer would have to do is to look up his papers which would tell him the man's domicile. Then he would say, "This lad lives in Scotland, he comes under Scottish law and he will be tried accordingly."

Sir P. Spens

No.

Mr. Willis

I am not stating what happens now, but what we should like to see happen to these boys. I have had a considerable length of service in two Services—the Navy and the Army. To suggest that this procedure would lead to bad discipline is rather ridiculous. A soldier does not ask himself, if he is going to commit a crime, whether he is living in England or Scotland and is subject to one law or another. There is no premeditation about it at all. One could quote other cases in which the law of Scotland is rather different from that of England. I thought the Lord Advocate could help us about the case of suicide. What about a suicide pact in Scotland? If a person survives such a pact he cannot be charged with murder?

The Lord Advocate

No, there is no such thing in Scotland as a suicide pact, but may I take this opportunity of clearing up a possible misunderstanding between the hon. Member and myself? A moment ago the hon. Member was talking about someone going to British Guiana. I intervened and said that of course it would be an offence similarly as in England, but even in Scotland the soldier could be charged by court-martial with attempted suicide.

Mr. Willis

He would not be charged under the civil law?

Mr. Woodburn

Could we have this matter cleared up? Am I to understand that the Lord Advocate said that if a Scots soldier situated in Scotland attempts to commit suicide and fails—no one is punished for committing suicide in either country, but in England he would be punished if he failed and in Scotland he would not—he would be punished by court-martial but would not be punished under civil law?

The Lord Advocate

Yes, it is a court-martial offence wherever the man is stationed, if he is under military law.

Mr. M. Turner-Samuels (Gloucester)

This matter comes in a most extra ordinary context. I cannot see why it should not be an offence committed in Italy or France. Is it not perfectly clear that an offence which would be an offence in England would not be an offence in Scotland? An example has been given of a suicide pact—

The Temporary Chairman (Mr. Malcolm MacPherson)

I think the hon. and learned Member is intervening in the speech of another hon. Member. He ought to make the intervention very brief.

Mr. Willis

I want to conclude with this thought. There seems a great deal of dubiety about this. There also appears to be a certain wrongness in the treatment of the Scottish person—in spite of what the Lord Advocate said about the Scottish boy conscripted into the Army—and I would ask him to look at this matter again. It has caused a considerable amount of discussion in Scotland and in the Press, and it has caused some concern. I ask the Lord Advocate to look at it again, even if he is not able to accept the Amendment.

5.15 p.m.

Mr. William Ross (Kilmarnock)

There has been some reference in this interesting debate to the narrowness of Scotsmen and to our unique sense of nationalism within the United Kingdom. I hope that it has been noticed that there have been three back-bench speeches by hon. Members representing Scottish constituencies, made by my hon. Friend the Member for Edinburgh, East (Mr. Willis), an Englishman representing a Scottish constituency, my hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes), a Welshman, and my hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes), an Irishman. Surely we shall not again be accused of lack of generosity or failure to recognise the true equality of men. Nationality counts for little; we look for worth in Scotland.

Mr. Wigg

Does that not confirm my view, as all those hon. Members are members of subject races of the English?

Mr. Ross

I wish to thank the Lord Advocate for his maiden speech. I say this quite sincerely. He is going to be an asset to the Scottish hon. Members for his clear, lucid and unruffled explanation of the law as it stands. As such he will be welcomed by us. I sincerely hope we shall hear him often and see him often. I say that with recollection of complaints we have had in the past about his predecessors.

The right hon. and learned Gentleman was not today talking about Scottish law but was explaining how military law and English law apply to Scottish soldiers. He was quite right when he said that this Clause creates no new offence. It perpetuates what has been the Army law in relation to Scottish soldiers for the past 70 years. I am, therefore, rather sorry that in his maiden speech as a Law Officer of Scotland he should be explaining away and justifying what he knows is considered a matter of injustice within legal circles in Scotland as well as among ordinary men. I hope that when he deals with Scottish legal matters he will have a much happier subject.

The right hon. and learned Gentleman intervened a moment ago with what I thought unnecessary frankness, but frankness for which I was very pleased because it showed the quality of the man. The one thing which was worrying me when he was giving his exposition of what would happen to a person who committed an offence in England which is not an offence in Scotland was what would happen if the man committed an offence in Scotland which is an offence as construed by English law but not an offence as construed by Scottish law. Here is a Scottish soldier in Scotland committing an offence which, if he were out of the Army, would not be punishable but which, in the Army, because English law has been brought in, is punishable. He admitted that a Scottish soldier attempting suicide in Perth could be tried by court-martial and could be sentenced according to the sentence of a civil court in England. Am I right?

The Lord Advocate

Yes.

Mr. Ross

There is a sense of grievance and nothing that the Lord Advocate can say will remove that sense of grievance. I asked him on Second Reading to look at this point. I agreed with much that was said by the hon. and learned Member for Kensington, South (Sir P. Spens), that the real core of Scottish grievance is that only one code can be applied and that that code is an English one. We should like to see a British code applicable to civil offences as construed by courts-martial. We have not got that yet. Until we do get that we shall have this grievance in this type of case. I ask the Lord Advocate, even now, to look at this matter again.

What worries me is the question of a civil offence which is not a civil offence according to Scottish law. In that case, the civil authorities are not concerned, but the man is still liable to court martial under the Army Act. That is the point about which we are still unsatisfied and I hope that the Lord Advocate will apply his mind to a solution of this Scottish grievance.

Mr. Arthur Henderson (Rowley Regis and Tipton)

The course of the discussion has shown that there is a great deal of anxiety on the part of hon. Members on this side of the Committee in relation especially to the specific case where a Scot joins the British Army and commits an offence which is chargeable under the civil law of England and chargeable before a court-martial but which would not be an offence if he were in civil life in Scotland. That is a position which it is difficult to justify, even though it may be inevitable until we get, as my hon. Friend the Member for Kilmarnock (Mr. Ross) suggested, a British code of law, which is, perhaps, some distance away.

I ask the Lord Advocate whether he will not shorten the discussion by agreeing to look again at the particular example that has been cited by various hon. Members on this side. If the right hon. and learned Gentleman says that it is quite impracticable to do it, we will have to accept that at present, but would he not agree to have another look at it and then make a statement when we reach the Report stage?

The Lord Advocate

Between now and Report stage we will, naturally, be considering with great care all the statements that have been made and the various questions that have been raised, among which is the last one raised by the right hon. and learned Member for Rowley Regis and Tipton (Mr.A. Henderson). But it would not be right if I said that I could offer any hope regarding either of the solutions which have been suggested from the other side of the Committee.

One of the two solutions that were suggested was a universal or eclectic code. I gave my reasons earlier for suggesting that that was not appropriate. The other suggestion was, not to have one single code, but to have two codes, one Scottish and one English, under court martial procedure, and that a soldier could opt when he enlisted or had committed the offence as to the code under which he would be tried. While all these things are, of course, kept under review, I do not think that my right hon. Friend and I are likely to be able at the Report stage to meet hon. Members opposite on either of those solutions.

Mr. Woodburn

The right hon. and learned Gentleman seems to be closing his mind before he opens it, so to speak. If he is going away with an open mind to consider the matter, he would seem to be a little rash to announce his conclusions before he has considered it. What we want is at least an honest assurance that he will look at the matter and consider whether what we have suggested can be done. We are not asking the Lord Advocate to do the impossible. It might be impossible, but surely it is worth considering after the arguments which have been put to him.

Mr. Turner-Samuels

This matter really must be looked at again. I should like to put to the Lord Advocate a point arising from the observations which he himself has just made. I am sorry that I was not present when he made his maiden speech, because I should have liked to have heard his explanation of the extraordinary situation which is created by the Clause. The right hon. and learned Gentleman has just said that one of the reasons why he does not think this unusual position can be put right is that to do as we suggest would be to create two codes. By that very statement the right hon. and learned Gentleman gives his whole case away, because two codes are, in fact, in existence already. If a man is a civilian, there is one code which applies in England in regard to the particular offences concerned and there is another code which applies in Scotland. All that is being asked now is that that situation should be allowed to continue.

How can the Lord Advocate possibly justify departing from all conventional practice and changing the opinion of the law merely because a man happens to be recruited into the Army? If the Clause applied only in the case of an English soldier, there would be no objection, because if the English soldier committed a civil offence he would be committing an offence which was an offence under English law. The Clause, however, also applies to a soldier in Scotland who commits an offence that in fact and in law would not be an offence if he were not in the Army, yet because the Clause is made to apply to what is an offence in England, the Scottish soldier is made liable.

How in reason can the Lord Advocate justify that extraordinary situation? I do not think that the right hon. and learned Gentleman can find in our law any situation which compares with the position which the Clause sets up. Is that not then strong enough reason to reconsider the matter? This is not a question of a sense of grievance but of a sense of reason.

Why should a man who would not be liable for a certain offence as a civilian in Scotland become liable merely because he happens, although in Scotland, to be in the Army? What difference can that possibly be argued to make? The right hon and learned Gentleman is importing into Scotland liability for a Scotsman who would not be liable if he remained a civilian there. Simply because a man is in the Army, why should the law be imported from England and the man made liable under it? This seems to be going too far. It appears to be a most grotesque thing to try to do. On grounds of reason, in the name of good law and in the name of what is obviously just, I ask the Lord Advocate to look at this question again and to have it put right.

Commander C. E. M. Donaldson (Roxburgh and Selkirk)

Unfortunately, I have not been present during the entire debate on the Amendment, and I want only to raise one point which I have not heard discussed during the last half hour. It appears to me that the arguments adduced by hon. Members opposite in support of the Amendment are based on the question whether a man serving in the Army is a Scotsman or an Englishman and that the matter is to be based on the man's domicile. That was one of the strong arguments put forward by the hon. Member for Edinburgh, East (Mr. Willis).

What is the definition of "domicile"? Is there anything to say that a serving soldier may not change his private domicile while he is in the Army? Suppose that a Scotsman marries an English girl and wishes to set up a domicile and is fortunate in getting a home south of the Border. He can do that on his leave while he is serving in the Army.

Mr. Willis

If I live in Edinburgh, I come under Scottish law. If I change my domicile and live in London, I come under English law.

Commander Donaldson

The hon. Member has interrupted too quickly. If the Army has the normal proportion of 11 out of every 80 soldiers as Scotsmen, surely it follows that if domicile decides the law to which a serving soldier is liable, the remaining 69/80ths—Englishmen, Welshmen and, perhaps, Irishmen—in the Army might wish, if they are subject to that law, to transfer their domicile to Scotland in order to obtain the benefit of this Scots law. The thing would be quite impossible. I should like my right hon. and learned Friend to indicate whether a private soldier can change his private domicile when he is serving in the Army, because that has some bearing on the decision of the Committee.

5.30 p.m.

Mr. Wigg

A soldier can of course change his address as many times as he likes. I do not know whether that satisfies the lawyers or not. I wish that right hon. Gentlemen opposite would have the guts to say what nonsense all this argument is and that in no circumstances will they look at the matter again. Any Lord Advocate who says that he is going to give further consideration when he knows very well that he will do nothing of the kind is, if he is competent to hold office, misusing the occasion. I bear in mind that the right hon. and learned Gentleman is new to our ways. It is far better for the Government to announce their decision and say, "This Amendment is ill-conceived nonsense. Let us have a vote and get on with it."

Mr. Woodburn

As far as the Committee is concerned, the protection of a private soldier, however humble, comes even before the discipline of the Army. If the Committee allows it to go out that any young Scot will be treated unjustly or unfairly in the Army because of some sergeant-major's idea of Army discipline, it will cause untold harm to the Army. We are asking that discipline should be conducted in a way which is fair to people in the Army. We are out to protect the private soldier so that on no occasion will he feel that he is unfairly treated.

The Lord Advocate

I can assure right hon. Gentlemen opposite that this matter has been considered, is being considered, and will be considered.

Amendment negatived.

Mr. Woodburn

I beg to move, in page 34, line 30, after "section," to insert: Provided that a person subject to military law shall not be tried by court-martial for a civil offence committed in Scotland without the consent of the Lord Advocate. The Amendment is concerned with a much smaller point, and I do not think that there can be any dispute about the justification for it. The right hon. and learned Member for Kensington, South (Sir P. Spens) and the Lord Advocate have both explained that in Scotland a person who commits an offence which is subject to civil law can be tried by court-martial only with the consent of the civil authorities. I take it from what has been said that, despite the fact that attempted suicide will be an offence under this code, the man may not be tried by court-martial unless the civil authorities give their consent.

We have been assured by the Lord Advocate on that point, but we have not been satisfied on the question of whether that is a matter of law and at whose discretion it is decided. The Amendment states: … without the consent of the Lord Advocate. The Lord Advocate is the prosecutor for the Crown in Scotland. No prosecution can be initiated in Scotland except under his authority.

The Lord Advocate

It can in very inferior courts.

Mr. Woodburn

No serious prosecution can be initiated without the consent, theoretical or practical, of the Lord Advocate. We on this side of the Committee think that that is a good system which should be maintained and sustained. The Amendment seeks to ensure that it will be part of the code of military law, so that nobody will be under any misunderstanding.

My own experience of courts-martial is that those who conduct them always try to be fair, and sometimes lean backwards to be fair, but sometimes they do not know the law. In the case which I have mentioned, the man received justice although he was convicted illegally. If the president of a court-martial does not know that this provision is part of the law he may act quite contrary to the law when soldiers are stationed in Scotland.

The Lord Advocate himself is the custodian of his office. He knows the tradition that attaches to that office. The Amendment merely seeks to protect his rights and duties with regard to offences committed in Scotland which may be susceptible to court-martial. I hope, therefore, that the Lord Advocate will be able to give us an assurance that this provision will be embodied in the Bill. If the wording of the Amendment is not the wording that would meet the situation, we should have no objection to his having it drafted to comply with the proper relations that should obtain between the Lord Advocate and military law.

Sir P. Spens

The right hon. Member for East Stirlingshire (Mr. Woodburn) referred to remarks which I made. I also made them when we were previously in Committee. The Select Committee took evidence on what happens when a soldier commits a civil offence. The effect of the evidence was that if the offence is committed against a civilian, almost automatically the civil authorities claim jurisdiction.

Even when the offence is committed against another man in the Army, such as stealing from a barrack-room comrade, the matter does not go to court-martial without the consent of the civil authorities. That is the established practice both in England and in Scotland, which every commanding officer and staff officer knows. I do not know whether it is necessary to put the provision in the Bill for the first time, but if it is put in the Bill it should not be confined only to our native Scotland.

Mr. Hector Hughes

In view of the fact that the right hon. and learned Member for Kensington, South (Sir P. Spens) says that this is a well-established practice, I see no objection to it being inserted in the Bill in order to give the person who is subject to military law the statutory protection which he has hitherto enjoyed merely as a matter of practice.

The Lord Advocate

I fully appreciate the point made by the right hon. Member for East Stirlingshire (Mr. Woodburn) but, as my right hon. and learned Friend the Member for Kensington, South (Sir P. Spens) has said, it is the established practice, both in England and Scotland, that civil offences are, as it were, given first to the civil authorities, and they have the choice.

I should like to remind the Committee of the views of the Departmental Committee, as reported on page 346 of the Select Committee's Report, H.C. 289 (1952–53). The Departmental Committee said: 4. The provisions of 1881 remain substantially unaltered in Section 41 of the present Army Act. But though this wide power of trial is given, it is not as a rule necessary or expedient to exercise it generally. In the U.K. the question whether an offender should be tried for a civil offence by a civil court or dealt with by the military authorities where this is permissible under Section 41"— that is Clause 70 of the present Bill— is one for determination by the chief officer of police concerned, who is guided by certain principles laid down after consultation between the Home Office and the War Office. And, I may add, also the Scottish authorities.

The principles are laid down in an Army Council Instruction, which appears in page 412 of the same volume, where this is stated: The chief officer of police concerned, normally after consultation with the CO. of the accused, is alone responsible for the decision whether an officer or soldier who is alleged to have committed a civil offence of which the police have cognizance is to be tried by civil court or handed over to the military authorities to be dealt with under military law. Once an accused has been arraigned before the civil court no request will be made to the court by the military authorities for the accused to be handed over to them. Further procedural methods are set out, and on the next page is described the position in Scotland: The position in Scotland is different in view of the fact that in most cases proceedings are instituted by Procurators Fiscal who act under the instructions of the Lord Advocate. Some minor offences are prosecuted by Burgh Prosecutors and Justices of the Peace Procurators Fiscal in Burgh or Justice of the Peace Courts respectively. The police do not prosecute in Scotland. Consequently 'procurator fiscal' should, where appropriate, be substituted for 'chief officer of police'. and so on. I am perfectly prepared to look into the matter and see if any form of words is either necessary or desirable.

Mr. Woodburn

After listening to what the right hon. and learned Gentleman said, the position seems to me to be satisfactory. The Lord Advocate is the custodian of his office, and he would be condemned by history if he surrendered any of its prerogatives. He gave us the assurance that he is satisfied that, through his servants, the procurators fiscal, he has control of the situation. I am quite sure that my colleagues from Scotland on this side of the Committee, and the Committee as a whole, will accept that.

In those circumstances, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, That the Clause stand part of the Bill.

Mr. Frederick Elwyn Jones (West Ham, South)

There is one part of the proviso to subsection (3) which does not seem to me to be entirely free from ambiguity. Perhaps the Solicitor-General will look at the point. The proviso is in these terms: Provided that where a civil court could not so award imprisonment, a person so convicted shall be liable to suffer such punishment, less than cashiering, in the case of an officer, or detention, in the case of a warrant officer, noncommissioned officer or soldier, as is so provided. I imagine that what is intended is that the words "or detention" are governed by the previous words "less than," and that what the drafters of the Clause wanted to say was such punishment less than detention. I am not quite sure that that is clear from the words as drafted. Before I develop my argument, perhaps I might be given an assurance that that is what is intended, namely, that "detention" should be governed by the words "less than."

The Solicitor-General (Sir Harry Hylton-Foster)

That is what is intended, and to save the hon. and learned Gentleman further trouble I will inform him that we will look at it and see whether any further emphasis is necessary to make the meaning plainer.

Mr. Elwyn Jones

I am much obliged.

Question put and agreed to.

Clause ordered to stand part of the Bill.

Clauses 71 to 73 ordered to stand part of the Bill.