ARMY BILL

HC Deb 25 January 1955 vol 536 cc46-105

Order for Second Reading read.

4.12 p.m.

The Secretary of State for War (Mr. Antony Head)

I beg to move, That the Bill be now read a Second time.

I rise to move this Motion in somewhat unusual circumstances. Those hon. Members who were here will agree with me when I say that we had what might be called a dress rehearsal for this Second Reading debate on Friday, 12th November, when we had a full and useful discussion on this self-same subject. I do not want to weary the House by a repetition of that debate or by attempting to deal fully with a number of matters which have already been ably and lucidly covered by my right hon. and learned Friend the Member for Kensington, South (Sir P. Spens). I think, however, that for the benefit of those hon. Members who were not here on that occasion, and because this is the Second Reading of the Bill, I should touch briefly on the main points in the Bill.

Before dealing with the Bill itself, I should like to repeat what has been said on so many occasions, namely, to express our gratitude and admiration to the Select Committee, under the chairmanship of my right hon. and learned Friend the Member for Kensington, South, for the work which it did. I should like also to express on behalf of us all and of the Members of the Committee, our indebtedness to the Departmental Committee set up to assist the Select Committee for the work it did, and, in particular, two members of that Departmental Committee who have now left the Service, Sir Thomas Cash and Lieut.-General Sir Kenneth McLean.

This Bill follows very closely indeed the recommendations of the Committee, and apart from drafting changes and other minor matters the general policy proposals of the Bill are the same. I would say for the benefit of those hon. Members present who were not with us on the previous occasion, that the main features of the Bill are, first, changes made in regard to the death penalty. In this instance, there were a number of offences which previously attracted the death penalty and a number of them are specified in Clauses 24 and 25. The offences which attract this penalty are now considerably restricted, as it must now be proved that they were done with intent to assist the enemy. In the past, the offence of mutiny could attract the death penalty, but it is now limited to certain specific forms of mutiny and for other kinds the death penalty does not now apply.

The Bill assimilates the maximum penalties for officers and other ranks where, in the past, they were at variance. It also provides for civilians employed by or following the Forces to be tried by court-martial for offences for which otherwise they would be tried by the civil courts in the countries abroad where they may be. This change is a logical and sensible one in view of the fact that British troops are on overseas service in many countries. We welcome this step and it has behind it the agreement of the Whitley Council.

There is an alteration about the forfeiture of service. Many hon. Members will recall that in the past conviction for desertion carried with it the automatic forfeiture of all previous service, although it could be restored by good conduct or on other grounds. In the new Bill the only automatic forfeiture of service is for the period of absence. Although the court may impose a larger forfeiture, the only automatic forfeiture is limited to the actual period of absence.

Lastly, the Bill makes provision for its renewal by Order in Council after the passing of a Resolution by each House of Parliament instead of the procedure, hitherto followed, of passing an annual Army Act through the House. That system could continue but as the Bill is at present drafted the Act would be renewable annually without fresh legislation, but for not more than five years, unless Parliament otherwise decides.

As I said in the previous discussion on this subject, both sides of the House are united in the principle of preventing this annual Bill becoming either the means of fillibustering and holding up Government business or becoming an unnecessary bone of contention.

What I said before and what I say again now is that this actual method, as it were, puts a safety catch on the House for five years. I should add that at this stage there is no absolute certainty about the workability of the ingenious device originally suggested by the hon. Gentleman the Member for Dudley (Mr. Wigg). It is not that we wish to go against the principle, but in Committee, we shall have to look carefully into the mechanics because, as he agrees, this is not a simple thing to effect by legislation.

I have given a very brief outline of the main features of the Bill and I do not believe that hon. Members will wish me to do more in view of our previous debates and the fact that a large number of hon. Members were on the Committee and know more of the details than I do myself. I would only say, in conclusion, that many times hon. Members from both sides of the House have been asked by constituents what was the object of the House of Commons staying up all night, with Members making one another sleepless and cross, and all to no avail. I feel now that, if that question is put to me, I can point to this Bill as one positive result of a series of late, stormy all-night Sittings. Finally, there was a settlement which resulted in the setting up of the Select Committee, and as a result of its work the Government are now in a position to put before the House this Bill, which, I am sure, will be of great value to the Army in the future. I commend it to the House.

Mr. William Ross (Kilmarnock)

Will the right hon. Gentleman say a word about the effect of Clause 70 (2) upon the law of Scotland?

Mr. Head

The hon. Member has raised a point which will be a very good one for consideration during the Committee stage, but I do not think it is a Second Reading matter.

Mr. Ross

It is a very important principle.

4.19 p.m.

Mr. Michael Stewart (Fulham, East)

There are a number of matters on which I am in agreement with the Secretary of State for War, the first in expressing our gratitude to those who served on the Select Committee and also to the Departmental Committee which assisted us in our work. When we first began our activities we were somewhat in the dark and the idea of having a Select Committee of Members of the House working side by side almost simultaneously with a Departmental Committee was, I think, a new one. It proved to work extremely well, and it is one which the House may well note for future reference when it wishes to make further large-scale inquiries into other topics.

I agree also with the right hon. Gentleman that there is little point in worrying the House now by any extensive description of the contents of the Bill, with which hon. Members, from earlier debates and from the Report of the Committee, will already be familiar. I must confess that the right hon. Gentleman has already referred to some of the points I had particularly intended to mention, though I trust that the hon. Gentleman the Under-Secretary of State, who will wind up this debate, will be able to satisfy my hon. Friend and his compatriots on the point on Clause 70 (2), raised by my hon. Friend the Member for Kilmarnock (Mr. Ross).

In general, I think that this Bill reflects a complete change in the temper of our national life and of the attitude of the nation towards its Army. At the beginning of this century the attitude of the general public towards the Army, and particularly towards the Regular private soldier, was curiously contradictory. In those days the Regular private soldier was ipso facto a hero by the fact that he was a private soldier, but the public, having once conceded that point, was firmly of the opinion, first, that probably he was not a very respectable person or he would not have taken up that career, and, secondly, that almost anything in the way of pay, quarters, discipline, and conditions of life was good enough for him. And he responded by heroism on the one hand and by a patient endurance of undesirable conditions on the other which, while it may have reflected credit on him, was not perhaps of the best service to the nation in the long run.

The nation has now decided that it will not put up with that kind of thing any longer. Indeed, it has been reaching that conclusion stage by stage over the last 50 years or so, and inevitably the introduction of National Service has had the effect of requiring the public to consider much more closely and much more reasonably than ever before the conditions under which a soldier's life is lived.

It is, therefore, no coincidence that all the major changes involved in Army law in this Bill are in the direction of making Army life a more civilised and reasonable occupation, an occupation that it is more reasonable to ask a self-respecting man to take up. Opinion in the House will differ as to whether in those directions we may at some point have gone far enough. I do not think any will consider that we have gone too far.

I would draw the attention of the House particularly to the limitation of the death penalty to the graver and more aggravated forms of mutiny, and to certain offences which have, in effect, the taint of treason about them; and the removal of the death penalty in respect of offences which are caused solely by cowardice or from those forms of mutiny which do not directly aid the enemy and are not accompanied with violence. The provisions with regard to punishments take up the same story—an attempt to apply considerations of reason, justice, and humanity to discipline in the Services.

The same is true also with regard to certain changes that are made in the law in regard to enlistment. When we debated the Report, some disagreement was expressed about the position of persons who are enlisted as boys and who, on reaching 18 years of age, may wish to express a conscientious objection to military service. I am glad that in this matter, as in others, the Bill follows the recommendations of the Committee. The House is indebted to the Secretary of State for introducing a Bill which in all respects so faithfully follows the Committee's recommendations. However, on the point I was mentioning, the Committee was anxious that the House should be fully seized of all the arguments, and hon. Members interested in that point will be able to refer to the relevant appendix, and see there fully why the Committee reached the view it did, and what alternative courses of action are open.

It is also gratifying to notice in the Bill, if one observes it rather more narrowly, a great many tightening-up provisions which will protect the soldier, the N.C.O. and the officer from a variety of petty annoyances. When we dealt with this matter in the Committee, those of us who were less well acquainted with the intricacies of military life were astounded to find the number of vexations to which officers and soldiers could be subjected from time to time, particularly with regard to financial matters.

I remember one long discussion with regard to attempts to reclaim sums which, on this, that or the other ground, might be owing after a man had left the Service. Hon. Members who examine the Bill in detail will see that in such matters we have made a consistent attempt to remove unnecessary vexations and to produce legislation which is more humane and more sensible.

I say "more sensible" because one has to remember that parts of an Army Act, sometimes very important parts affecting the lives and liberties of men, have to be administered by officers in the Army who are not lawyers, possibly when overseas and when having to act speedily and in an emergency. In the course of our deliberations we frequently had to bear that in mind, namely, not only what was the right substance of such an Act but how could we so express it as to be readily intelligible, and what administrative provisions could be made so that the exact meaning of the law was made clear to those who would have to administer it.

This is, then, a Bill which, with regard to enlistment, discipline, and all the details of a soldier's life, and with regard to those matters in which the military machine comes into contact particularly with civilian property rights—as in such questions as billeting—seeks to be modern, sensible, and humane. This Bill, resulting from our Report, is now submitted to the House for detailed consideration.

At a later stage no doubt there will be points of disagreement—indeed, there were some points on which the members of the Committee themselves disagreed—and on which my right hon. and hon. Friends and myself will no doubt wish to have further discussion later. Yet I cannot feel that there will be any hesitation in giving this Bill a Second Reading, and there is only one other remark I need make.

I have referred to those parts of the Bill which are aimed at removing from the soldier's life a number of petty vexations from which he has suffered from time to time. All who were on the Committee will agree that in this part of our work we were greatly helped by the life- long experience of my hon. Friend the Member for Dudley (Mr. Wigg). If this is not too uncontroversial an occasion to refer to it, I would suggest that the right hon. Gentleman the Prime Minister, before indulging in wisecracks at the expense of my hon. Friend the Member for Dudley on another occasion, might have acquainted himself with the full details of the military career of my hon. Friend—

Mr. George Wigg (Dudley)

Not all.

Mr. Stewart

It seemed to me that the remarks of the Prime Minister on that occasion were—if I may borrow one of his own phrases—as ignorant as they were ill-natured.

I was saying that we were indebted to my hon. Friend the Member for Dudley for the detailed knowledge to which I have referred. There is another matter in regard to which we were indebted to him. That was in helping us to frame a formula on which is based the last and most important Clause of this Bill. It is, indeed, a most remarkable Clause. It makes an alteration in a procedure which has now been established in this country for a considerable time and the original reasons for which are embodied in so important a document as the Bill of Rights. I believe nonetheless that this is the right procedure.

The House ought to be aware of the importance of what it is doing, and that if it passes the Clause it will have got rid of the annual Army Act debate and will have substituted for it an annual debate on an Order in Council. In a sense it is making the continuation of the Army Act itself a matter not of primary but of delegated legislation.

The change is important, and I believe it is the right one to make, but, as the Bill now stands, that procedure can be continued for only five years. We have still to consider in what form, after the five years is up, a fresh Army Act ought to be introduced. It is on that matter, as the right hon. Gentleman suggested, that we have to enter into very serious discussions during the Committee stage.

In view of the constitutional importance of the Clause, the Opposition are very glad that the Government have seen fit—I understand that this is their intention—to take the Committee stage of the Bill in Committee of the whole House. I know that it is a somewhat long and cumbrous Bill for that purpose, but I am sure that it would not be right to make such an important constitutional change in any other way than in Committee of the whole House.

With an expression of thanks again to the Departmental Committee, with an expression of appreciation of the Government's action in embodying practically the whole of the Select Committee's recommendations in the Bill, and with the indication that there will be certain points of dispute at later stages of the Bill, I am very happy to join the right hon. Gentleman in commending the Bill to the House for Second Reading.

4.32 p.m.

Mr. George Wigg (Dudley)

There are one or two points upon which 'we require a little more information from the Government now that we have reached the stage when the Bill is soon to become law. As I understand it, when the Bill is passed it will then be for the Government to decide upon an appointed day when the new Act will come into force. I should like some indication from the Under-Secretary as to when the appointed day will be.

I had hoped that it would be about a year from now, but it is clear that a great deal of work has to be done in making the provisions of the new Army and Air Force Bills known throughout the Army and Air Force, entailing the rewriting of the existing Manual of Military Law. I have no doubt whatever that these footnotes will be prepared by the very competent and scholarly branch of the War Office which deals with legal matters.

That is a very important task, for the new Act will have to be administered and interpreted by officers who are not lawyers; and, therefore, the care and scholarly approach of those who write the footnotes is very important indeed. I should like the Minister to tell us what is being done about that side of the work.

I should also like the hon. Gentleman to put to his right hon. Friend the point that it would be as well to enlist the enthusiastic services of a historian of established reputation to write some of the chapters of the new Manual of Military Law. Many officers will have to tackle those chapters for examination purposes, and they might as well tackle the job as being one of pleasure instead of one of grinding boredom. Moreover, I should have thought that it would have added something to the Army's reputation if the historical chapters were written by a professional historian with a high reputation.

I hope that the Minister will consider this suggestion, for the Departmental Committee has done its job and it is now up to the Army and the Air Force to do their job, which is to make the new provisions intelligently known, and known in such a way as to establish the new system of law in a manner which will permit it to grow up easily and wisely, which has not always happened in the past.

I am one of those people who disagree fundamentally with the right hon. Gentleman. Now that we are back to where we were when the Bill was born, in the hurly-burly of the debate on the Army and Air Force Bill almost three years ago, there is no harm in explaining why. I am sure that the right hon. Gentleman will correct me if I am wrong, but he has, I think, nailed his colours to the mast of increased pay for the Army. He felt that increased pay would not only provide all the recruits for the Army, but that nothing much else needed to be done to make the Army happy and contented.

I have never held that view. I have always held the view that the conditions must be such as to enable a man to bear discipline with the full knowledge that he was a civilian when he started and will' become a civilian again. I have argued that the Army should be welded into the life of the nation. I was extremely interested to read a report of a lecture given in October by Field Marshal Montgomery, who, I am happy to say, came down on my side against the right hon. Gentleman. Field Marshal Montgomery said that what matters in the Army is conditions and that pay rises are not of first importance.

Mr. Head

The hon. Gentleman is most insidious and clever in putting things into other people's mouths, saying them so often that they almost appear to be true. As to nailing my colours to the mast, before there was a realistic pay increase I always maintained that pay and conditions should be improved but I never said that that was the be-all and end-all of it.

Mr. Wigg

I am glad to hear the right hon. Gentleman call me clever. He has called me many things before, but never that.

There is no cleverness about it at all. I listened to the right hon. Gentleman when he was in opposition, and he had only two constructive approaches. One was to make the maximum use of leaks, to the extent that he has now the trade qualification of a plumber. The other was "More pay and spend more money on the Army." That was what the right hon. Gentleman said. Now he has had the great advantage of having for three years been the Secretary of State for War and we now have the Army that we have got.

We have had another example today. I am sorry to strike this controversial note, but it must be done. Today my right hon. Friend the Member for Bassetlaw (Mr. Bellenger), rather an innocent, had a Question on the Order Paper about recruiting. He at once got the reply from the Under-Secretary "There is no crisis about this. It is all right." My right hon. Friend did not ask the right question. He asked only about external recruiting, and that is only 10 per cent. down. He ought to ask about internal recruiting. What has happened there is a very different story.

Three years ago—I played my humble part, and I am not ashamed of it; I would do it again if I got the chance—we set about forcing the Government to eat their words. We were playing a party game, but the Conservatives also play party games; we are in the House of Commons to play party games—

Mr. Head

On a point of order, Mr. Deputy-Speaker. I should be delighted to engage in a debate on recruiting, but, as we are dealing with the Army Bill and I cannot see that there will be an opportunity to reply to what appears to be a recruiting or manpower debate, I question whether the hon. Gentleman is in order.

Mr. Wigg

Further to that point of order. I have assumed that, as the right hon. Gentleman has moved the Second Reading of the Bill, he has read the Report. Of course that was a bold assumption on my part. But the Report and the Bill deal with conditions of service and with terms of enlistment, and I should have thought I was in order in dealing with what is in the Bill.

Mr. Deputy - Speaker (Sir Charles MacAndrew)

I should have thought that it would be an encouragement to join the Army if the Bill were satisfactory.

Mr. Wigg

I am extremely obliged to you, Sir Charles, and I apologise to the right hon. Gentleman if anything I have said is inconvenient, but I intend to say it again. I have said it many times before, and before our consideration of the Army Estimates is concluded I think that the right hon. Gentleman will hear it again. I know that it is inconvenient and that his convenience is important, but the good of the Army is even more important.

The Army is faced with an increasing recruiting crisis, an increasing disinclination of young men now in the Army to stay in the Army. I want the steps we took three years ago in the direction of improving discipline and reorganising the Army step by step so that Army life will be satisfactory enough not only to encourage men to join the Regular Army but to stay in when they are there.

I have said many times before, and I now say it again, that one of the chief obstacles is the right hon. Gentleman, because his mind is closed. He believes the Army is all right now that pay has been increased. He can see, as it were, only just beyond the end of his nose. It may not be too late for him to reform. I hope not. I hope that this Bill has been a lesson to him, because we all remember that memorable day when we asked him to extend the Bill for 15 months. He would not have it, but ultimately he moved the very Amendment against which he had advised his hon. Friends to vote, and they were wise enough to take his advice.

He has got the Bill, and I want him to learn from his experience. Here is a Bill born of party controversy. A row broke out and certainly caused a certain amount of political inconvenience, but as soon as the problem was taken upstairs it was tackled on non-party lines. We have produced a Bill under the wise guidance and leadership of the right hon. and learned Member for Kensington, South (Sir P. Spens) and I think it will serve the Army very well for a considerable time. It has come about because both sides of the House, faced with the problem, have found a solution to meet the facts.

This is not the only problem which faces the Armed Forces. It is not the only problem which faces the Army or the Air Force. I should be out of order if I attempted to make a list of what those problems are. I am pleading with the Government, not for the first time, to use the technique worked out for the first time in launching the Bill to deal with the problems of the working of the National Service Acts and of Regular recruitment.

I say again, and here I cannot be charged with making any political point, that it is beyond the capacity of any one party in this House to solve those problems. I hold the view that the appointed day for the Bill will come in 1956, and by that time there may well be a Labour Government in office. If that happens, some of my hon. Friends will have to tackle the problems which face hon. Gentlemen now sitting opposite. The problems will not in the meantime have decreased in size or gravity. They cannot be solved by my hon. Friends alone any more than by hon. Gentlemen opposite.

In saying that, I cannot put the problem more fairly, and I cannot possibly be charged with making a party point. I am pleading with the Government, then, without pressure, or loss of face, or loss of self-respect, to face these great national problems on a national basis. The House of Commons is generous and the British are generous people, so if Ministers come here and ask for the cooperation of all sides of the House, we shall at once be on the road to finding a solution. Certainly that would be much better than doing what the right hon. Gentleman does in taking advantage of a silly Question by my right hon. Friend the Member for Bassetlaw and giving the kind of answer that fits the Question.

That is not the way to do it. Let us have party battles, but remember that we are an impoverished country and we cannot possibly afford to spend the amount that perhaps ought to be spent on defence if we are to get the kind of military security which we need in the modern world. We cannot get that far, for we can afford to spend only a certain part of our national income on defence. Surely, then, it is wisdom and common sense to try to spend what we can afford to the best possible advantage. Of course, the way in which the money is spent is decided at the time of the defence debates when the Service Estimates are debated, and year by year that gives us the opportunity to check and to thrash out these questions.

But there are problems like the one which we are now considering of bringing up to date a Service which is landed with a code of conditions almost 100 years out of date. That can best be tackled in the way in which this problem has been tackled. The experience of the Select Committee and the results of that experience which the House is considering today point an arrow in the direction which the House of Commons and the country would be well advised to follow in the future.

4.46 p.m.

Brigadier O. L. Prior - Palmer (Worthing)

I have a very short observation to make. As the hon. Member for Fulham, East (Mr. M. Stewart) said, an attempt has been made to raise the status of the soldier and the officer in the eyes of the nation and to make his lot more easy. There are many things of great importance which we found we could incorporate in our Report and which have been incorporated in the Bill. There are other equally, if not more, important things incorporated in the Report which could not be incorporated in the Bill.

I make an urgent plea to my right hon. Friend to look more closely at these things and see whether he cannot implement them, particularly those about the education of the children of people in the Forces and their housing, and so on, when they leave the Army.

4.48 p.m.

Mr. Hector Hughes (Aberdeen, North)

I want to make some comments on the Bill with a view to improving it. I agree with those who have already said that it is an important Bill for many reasons. First, unlike the Army Acts which are passed annually for one year only, this is to be of longer duration. Secondly, it purports to codify the law relating to British soldiers. Thirdly, it is the work of a Select Committee of Parliament which made recommendations of which this Bill is one of the results. Fourthly, it makes grave inroads on the jurisdiction of the civil power.

The Committee has done its work well, but in my submission not perfectly. Therefore, I venture in no party spirit to suggest, purely on their ethical and juridical merits, some improvements which I wish to embody in Amendments, if I get the opportunity, when the Bill comes to the Committee stage. In this Second Reading debate I shall merely indicate the principles and my line of constructive criticism and arguments. I hope they will commend themselves to the Government and to the House and will predispose the Secretary of State for War to accept the Amendments which I shall put on the Notice Paper.

In general terms, my criticisms are that there are grave omissions from the Bill and gaps in the purported codification; the system of law to be applied lacks breadth; the Bill is not completely British in structure; the Bill fails to implement advances in juridical thought; the Bill retains the outmoded doctrine of implied malice, and the Bill leaves unfulfilled a major promise which was made in Committee.

I make these criticisms in no invidious or party spirit. The Amendments which I shall suggest will, I hope, be accepted on their ethical and juridical merits. In putting them forward I am supported by distinguished lawyers, university men, business and professional men, leading newspapers and by the opinions and desires of the volunteers and conscripts who will be affected by this legislation.

I deal, first, with the point that the law to be codified should be the best that Britain can produce. For this purpose the whole realm of British law should have been surveyed by learned and experienced jurists, but it is no disrespect to the Select Committee to say that it is apparent from the Bill that this was not done. It has been well said by a distinguished lawyer and soldier, Professor T. B. Smith, M.A., who occupies the Chair of Law in Aberdeen University, that: … 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 respectfully agree with Professor Smith, but that has not been done, as I shall show. The fact that it has not been done leaves the Bill incomplete and far from perfect. This is intended to be a British Bill to make provision for the British Army amenable to British law, but it is drafted as an English Bill to make provision for the British Army amenable to English law only.

I say this for the purpose not of advancing any narrow nationalism. Juridical science is too broad and legislation is too important for that. On the contrary, I say it as a British student of law who seeks to make the Bill as useful as possible. I am willing to agree that the Measure is a beneficent departure in some ways from outmoded and old-fashioned Army Acts. It seeks to provide a military code for serving soldiers, but my criticism is that it does so too narrowly and incompletely.

I have said that I am not alone in putting forward these views. I have already quoted that distinguished jurist and soldier, Professor T. B. Smith. I think it right to quote what one of the two leading Scottish newspapers has said upon the topic. Both of the leading Scottish newspapers, the "Glasgow Herald" and the "Scotsman" support the point of view which I am putting forward. Those two great organs represent a considerable and important phase of Scottish educated opinion. In its first leading article, on 26th November last, the "Scotsman" said: The Americans have seen to it that their forces in this country are not subject to English law. Yet Scottish people have unwelcome principles of English law thrust upon them when they serve in the armed forces. What is the remedy? It is unlikely that the predominant partner would permit the evolution of an eclectic system of military law, which would combine the best features of English and Scots law. There are matters of procedure in which Scotland is fairer. Probably there would be an uproar in England if an Englishman received better terms from an eclectic military law than he would get under the law applicable to civilians. But that is no reason why a Scot should have to be worse treated by the law of the Army than he would be under Scots law. The remedy which Professor Smith suggests is that a soldier while in Scotland should be enabled to claim trial before a Scottish Civil Court instead of by military law when he is charged with 'an act or omission punishable by the law of England'. I ask the House to note that the point that I am making is not a new one; it was made before the Select Committee. It is significant that when the Committee was considering the two systems of law it was decided to deal with Scottish law later and separately, but that has not been done up to now. The relevant passage in the evidence is on page 38 of the Report, at question 253. The Chairman said: … 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? The witness said: Yes, indeed. It is Section 167. The learned Parliamentary counsel—and this is the important part—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 Again, I draw attention to the fact that this sensible suggestion there agreed to in the Select Committee was never implemented, and it is not implemented in the Bill. The nearest to it is that part of the Bill which under the heading "Application to different countries" applies the legislation to Scotland, Northern Ireland, the Channel Islands and the Isle of Man, "certain overseas territories" the Federation of Malaya and the Republic of Ireland. It would be ironical to suggest that the Bill applies to Scottish law or touches any major point of principle or difference between English and Scottish law.

I now turn to my second point. This is that the Measure is incomplete in its codification. The House will observe that the Bill purports to codify, but in my submission it is incomplete in its codification. To prove this one need only look at the principle applied to Clauses 24 to 69 where we find codification of military law. There each military offence is dealt with separately—46 offences in 46 separate Clauses.

The details are as follows, and I mention them for the purpose of the record. The seven Clauses, 24 to 30, deal with seven different offences, from aiding the enemy to looting. The six Clauses, 31 to 36, deal with six different offences, from mutiny to disobedience. The five Clauses, 37 to 41, deal with five different offences, from desertion to failure to perform military duties. The five Clauses, 42 to 46, deal with five different offences, from malingering to offences relating to property. The two Clauses, 47 and 48, deal with two different offences arising from billeting and the requisitioning of vehicles.

The four Clauses, 49 to 52, deal with four different offences relating to flying. The four Clauses, 53 to 56, deal with four different offences relating to arrest, imprisonment and escape. The three Clauses, 57 to 59, deal with three different offences, relating to courts-martial, false evidence and obstruction. The 10 Clauses, 60 to 69, deal with a variety of 10 different offences, ranging from injurious disclosures to prejudice of military discipline.

This is a fairly complete codification of offences that are military offences in 46 separate Clauses. Contrast it with the treatment meted out to offences called civil offences which are dealt with in one Clause only, namely, Clause 70, where there is no attempt at codification at all. Instead, we find only these general words. Subsection (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. Subsection (2) gives an explanation of what "civil offence" means in these words: … the expression 'civil offence' means any act or omission punishable by the law of England or which, if committed in England, would be punishable by that law … What happens if the offence be an act or omission punishable by the law of Scotland? What happens if it be an offence which, if committed in Scotland, would be punishable by that law? There is no provision at all. In the Bill there is a great gap.

There are several grave objections to this Clause, but at the moment I am concerned only with one, namely, the contrast between the manner in which this Bill deals with military offences on the one hand and with civil offences on the other. I say it is unjust and unfair to soldiers, because either both kinds of offences should be codified, or neither. If they are not codified, civil offences should be left out of the Bill altogether and left to the civil authorities. I favour that course. I say that it is wrong to oust the jurisdiction of the civil power when a civil offence has been committed, whether by a soldier or by a civilian.

For example, take the case of a soldier who is charged with stabbing, or robbing, or some other civil offence. The civil jurisdiction should operate fully and freely throughout Britain, unless the offence be a military offence committed by a military man within the military code. This Clause 70 is an infringement of the civil jurisdiction and, in effect, opens the door to the operation of the military State, and to the possibility of grave abuse. It is inconsistent with the democratic civil State in which we live, and it should be left out of the Bill. Alternatively, if it be included in the Bill for the purpose of taking out of the hands of the civil authorities soldiers who commit civil offences, then I say that the civil offences should be codified as the military offences are codified in this Bill.

I suppose that people who object to such codification will base their objection on the ground that to do so would fill a large volume. But this Bill is not an ordinary Army Bill. It is not a Bill intended to last for only a year. This is a Bill of much longer duration, and if the codification of military offences is to be included, then in my submission the codification of civil offences should also be included in it. What is right for one should be right for the other. As it stands, it is invidious.

My rejoinder to those who oppose the argument I am venturing to advance is this: do not codify civil offences; do not take the offenders against the civil law away from the civil jurisdiction of the place where they have offended. This would be just to all soldiers, and particularly to National Service men who are removed only temporarily—and involuntarily—from the civil jurisdiction for the limited period of their National Service.

This brings me, naturally, to the other objections to Clause 70; they are all of an equally grave character. First, the soldier who commits a civil offence is made subject to English law, whether he be English or Scottish, and regardless of the place where the offence is committed. This is a hardship to both English and Scots—

Dr. H. Morgan (Warrington)

And Welsh.

Mr. Hughes

—because in many respects the system of law in the two countries is different. Secondly, the Bill performs this unfair operation not by substantive enactment, which would be the straightforward way, but by reference, which all good lawyers anathematise as an indirect and improper manner of legislation. Both of these are objections of substance.

The most illuminating way of showing how a Scottish person would be prejudiced if tried by English law is by way of example, and the example I give is this. 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 is as grave as that. This doctrine means that in a case where no malice is expressed or openly indicated, the law will imply it from circumstances such as, for instance, a deliberate, cruel act; the commission of a felony by an offender, 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 of "implied malice" which, as I have said, sometimes means a sentence of death in England, but not in Scotland. I ask most emphatically that the House shall bear in mind this very grave disparity, this grave difference between the law in England and the law in Scotland, and apply the observations I am making to the defects in the Bill.

I think the House will agree that I have shown that there are grave omissions in the Bill. There are gaps in the purported codification; the system of law which is applied lacks breadth, and is not completely British—Scotland is still part of Britain but the Bill is solely English; the Bill fails to implement the advances in juridical thought recommended by the very recent Royal Commission and retains the outmoded doctrine of implied malice. Above all, it fails to implement the suggestion made to and accepted by the Select Committee in the quotation that I have given to the House.

I apologise to the House for keeping it so long, but this is a very important matter and I think it is right that I should indicate some other grave omissions. Clause 103 sets out elaborate rules of procedure in five subsections and 13 paragraphs, but it omits some essentials. I submit that it should include provisions for the following important matters: First, an accused man should be required to give notice—prior to trial—of his intention to use any special defence, such as insanity, alibi, or self-defence. This already applies in the courts of justice in Scotland, but not in England.

Secondly—and I am skipping over a number of serious objections and omissions—the opening speeches by counsel for the prosecution and defence should be dispensed with; the case should be decided upon the evidence and not upon opening speeches. This would give a more accurate statement of the case. This, again, is law in Scotland, but not in England. Thirdly, the closing speech by counsel for the prosecution should always precede that of counsel for the defence, whether or not witnesses other than the accused are called for the defence. It should never be forgotten that in both systems of law the accused is deemed to be not guilty until he is actually proved guilty.

A fourth objection arises from the finding of the verdict of "guilty, but insane." This should be altered to a finding that "the accused committed the act but was insane at the time." This is a matter of common sense, because a person who is insane when he commits an offence cannot be guilty of the offence, inasmuch as his insanity precluded him from forming the guilty intention which is necessary to constitute that offence. There are other objections with which I shall not trouble the House at the moment, and I shall not stress my second objection to Clause 70, namely, that it involves legislation by reference, because the legal objections to that form of legislation are well known.

The Government's outlook with regard to Amendments to the Bill is far from satisfactory, fluid or healthy. This is shown by the answer which the Under-Secretary of State for War gave to three reasonable Questions—designed to improve the Bill—which I put as far back as 21st December last. I invite the attention of the House to the constructive nature of the Questions, as contrasted with the far from constructive character of the evasive replies which were given. I asked, first, whether he would alter the Army Act so as to ensure that a British soldier who is charged with a civil offence not specified in the Army Act while serving in Scotland shall be entitled to claim trial before a Scottish civil court instead of before a military court."—[OFFICIAL REPORT, 21st December, 1954; Vol. 535, c. 256.] Secondly, I asked if, in considering a new military legal code for the British Army, he will take into account at each stage on their merits the solutions not only of the English legal system, but also of the Scottish legal system and, thirdly, if, in considering any future changes in the Army Act, he will take steps to define the various military offences which may be charged and the defences available to persons who may be charged with such offences; and, in doing so, if he will incorporate, on their merits, the provisions of the relevant Scottish law as well as those of the relevant English law. The House may find it incredible that the Minister's only answer to those three constructive Questions was based on a false political philosophy. He did not address his mind to any of the specific points which were made. On the contrary, he said that the Army Bill was drafted on the lines of the Report by the Select Committee on the Army Act and Air Force Act, without any alteration of policy or principle."—[OFFICIAL REPORT, 21st December, 1954; Vol. 535, c. 253.] This seems to mean that the principle and policy of that Report must be accepted blindly and slavishly by the House. That is a tribute to a Select Committee which is more than I can bear. If the House is to do that, we might as well abandon this debate, declaring that we have delegated our rights and duties to that Select Committee. This would be a shocking confession of defeatism, and I object to any such dereliction from our duties, sacrifice of our constituents' rights, or departure from Parliamentary debate.

I hope that the Minister will reconsider the unbecoming frustration which possessed him at the time, and which prompted his negative answer. I am sure that the House expects him to consider suggested improvements on their merits, with a view to making the Bill as useful as possible to soldiers and citizens alike, in the best interests of Britain—including Scotland—and the Commonwealth of Nations.

5.18 p.m.

Sir Patrick Spens (Kensington, South)

I should like to reply, quite shortly, to the obviously carefully prepared speech of the hon. and learned Member for Aberdeen, North (Mr. Hector Hughes). He has made some very trenchant criticisms of the draft Bill which the Select Committee recommended to the House and which is now represented, with only a very few alterations, by the Bill to which we are asked to give a Second Reading today. I feel that the hon. and learned Gentleman may not have read all the evidence which was placed before the Select Committee. Every matter which he raised in his speech was considered in great detail by that Committee, and if the hon. and learned Gentleman will really get down to reading the memoranda and evidence he will find that his points are answered by that evidence.

I want to deal, first, with the point that we have codified the military but not the civil offences. This is to be an Army Act, and if that Act deals with military offences which are not civil offences they must be codified. I submit that it is not for an Army Act or an Air Force Act to proceed to codify the civil laws of the land. That is done in the ordinary criminal and other law of the land. Therefore, I would suggest that there is nothing in the least surprising that we have codified with very great care the military offences, but have left the civil offences to stand as they are codified by the criminal law of the various lands where they would operate.

The second point is this. 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—and we went into this at very great length—that there is an extremely interesting memorandum that was prepared for us by the Departmental Committee, which is Annex 13 to our Fourth Report and is found on page 346, which gives the detailed history of how it came about.

It will interest the hon. and learned Gentleman to know that it was not until 1879 that any civil offence was ever a military offence, but thereafter it was found that, because the Army is not always stationed at home, offences are committed by members of the Armed Forces or by their followers which are not among the 40 or more military offences but are ordinary civil offences under the code of the country in which the person concerned is living.

If a person commits a civil offence while stationed, let us say, in Egypt, or China or Germany, is he or is he not to be liable to any sort of punishment by the military authorities? Are we to make him punishable by the military authorities or leave him to be dealt with by the law of the land in which he happens to be, which will mean that he will be picked up by the local police, will appear before a local court and be punished by that court, if his offence happens to be a civil offence in that country?

We went into this matter in very great detail, and we came to the conclusion that there was every reason why we should, if we could, preserve jurisdiction over our own people when they are serving overseas, and it is for that reason that we accepted what has been part of the military law of this country since 1879 and agreed that civil offences should also be military offences.

On the point of troops serving at home who, in fact, commit civil offences, this Memorandum explains what happens quite fully. If, in the first place, a civil offence is committed by any member of the Armed Forces serving at home, it is to be reported to the police, and it is for the police and for the police alone to decide whether or not that person shall be tried by the civil court or by court-martial. In ordinary practice, if the civil offence is an offence committed by one member of the Services against another, or if it concerns regimental property, and so forth, as a rule the police suggest that it should be dealt with by court-martial, but if the offence in any way concerns a civilian or civilian property, the police almost always naturally insist that the case should be tried by the civil courts.

The hon. and learned Gentleman will, therefore, see that if a soldier serving in Scotland, whether he be English, Scottish, Irish or Welsh, does, in fact, while serving in Scotland commit a civil offence for which he may be liable in the civil courts, only if the police decide that it is an offence committed inside the Armed Forces, so to speak, will he be liable to be charged and brought before a court-martial.

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, and I shall read his speech with very great care. I only ventured to intervene at this stage to express the hope that, before the hon. and learned Gentleman puts down Amendments to this Bill for the Committee stage, he will at any rate endeavour to see whether the points with which he is concerned were not those considered by the Select Committee, and to which we devoted a very great deal of our time.

5.25 p.m.

Mr. William Ross (Kilmarnock)

After listening to the right hon. and learned Member for Kensington, South (Sir P. Spens), I am reminded of an old Scottish ballad of the same name as the right hon. and learned Gentleman, because it seems to me that in the matter of this inquiry he has proved to be "a skeely skipper." I am very doubtful whether he has convinced many Scotsmen that there has not been a considerable change affecting Scottish law and the offending Scottish public.

From what he has just said in answer to my hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes), I begin to doubt whether it was necessary even to offer that offence by including Scotland as subject to Clause 70. The right hon. and learned Gentleman should not be surprised that Scottish Members are raising their voices in protest at this particular method of Scottish law, especially today—25th January—when, if we were meeting in Scotland, we might be making speeches of a different kind.

My first point is that in Part II of this Bill there are provisions which have attracted considerable opposition in Scotland. It has been suggested by some people that Scotsmen in the Services and Scottish units should carry the jurisdiction of Scottish law with them wherever they go. I do not think that any right-thinking man who sees the practical problems which would be created would take up that point of view. I think that we should have a properly codified military law that would apply to the whole British Army. That is the desirable solution, and, naturally, that is the position which I myself take up.

When we come to the problem, mentioned by the right hon. and learned Gentleman, of Scotsmen overseas and the desirability of seeing that civil offences are properly dealt with under the law to which they have become accustomed, we come to an entirely different point. Englishmen are not accustomed to the same kind of law as Scotsmen, and the fact is that there are civil offences in England which are not offences in Scotland. For instance, if I try to commit suicide in England, I am guilty of an offence and can be tried for it under English law, but it is not an offence in Scotland.

That is one of the particular points of difference. It is all very well for the right hon. and learned Gentleman to say that the police will decide, but the Bill does not say anything at all about the police deciding the matter. Actually, what it says in subsection (1) of Clause 70 is: 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. The Clause goes on to say: (2) In this Act the expression 'civil offence' means any act or omission punishable by the law of England— Thereafter, in that Clause, there is no reference whatever to the police, and the actual position is that, for the first time, we have the civil law of England being imported into Scotland so that it can be applied to Service men, whether Scotsmen, English or Welsh, where, at the present time, they would not be—

Sir P. Spens

Not for the first time, but since 1879, when the ordinary soldier serving in the Forces of the Crown was made liable for civil offences according to the law of England, wherever he happened to be serving.

Mr. Ross

I stand corrected.

Sir P. Spens

They may have the right to protest against it now, but it is not for the first time.

Mr. Ross

I do not think it right to make that change now, and I hope that during the Committee stage we shall be able to get over this point in such a way as will meet the objections of many Scottish people to it.

As has been said, this Clause was not introduced because of anything connected with Service men stationed in Scotland. It relates to overseas happenings, and until such time as we have a body of law which will deal with such cases—which would mean the codifying of offences to be tried by court-martial—I can see no reason why civil offences in Scotland should not be left to be dealt with by the civil courts in Scotland.

When this Bill becomes an Act, we shall have the anomalous position that the law in Scotland will differentiate between civilians and Service men. It will be an offence for a Service man to do a certain thing, but it will not be an offence for a civilian to do it. I could give numerous examples, even though I am not a Scottish lawyer. It is interesting, if not disappointing, that there is no Scottish Law Officer present to guide us in the matter.

Colonel Alan Gomme-Duncan (Perth and East Perthshire)

We shall have one on Friday.

Mr. Ross

It is doubtful whether we shall have one on Friday. Even if we do, if he is no better than the last one, we might as well not have him at all. There are many hon. Members of this House who could not even pick out the last Lord Advocate.

Mr. Paget

Is my hon. Friend aware that, as far as the position in Scotland is concerned, it is for the civil authority to decide whether it wishes to prosecute, and the military prosecute only if the civil authority decides not to?

Mr. Ross

It does not say so in the Bill.

Mr. Paget

But that is so.

Mr. Ross

I have read the whole of Clause 70, and, as far as I can see, the position can change quite radically. We should have a Law Officer present to enlighten us on the point. We normally have two Scottish Law Officers, the Lord Advocate and the Solicitor-General, but the present position is that the man who was the Solicitor-General, and who has been made the Lord Advocate, is still looking for a seat. We may or may not see him by the end of the week.

Colonel Gomme-Duncan

Has the hon. Gentleman forgotten that the candidate in Edinburgh, North, seems to question whether the Lord Advocate ought to be in the House at all?

Mr. Ross

That is a point of view, I agree. We seemed to manage fairly well without the last one. In view of what happened in connection with the Scottish Town and Country Planning Bill, we should have been far better off without the right hon. and learned Gentleman.

One absurd example of the present position comes to my mind. Under the English Salmon and Freshwater Fisheries Act, 1935, a licence to fish is necessary, but no licence is required, or, indeed, can be granted, in Scotland. In England, it is an offence to fish without such a licence or with tackle not authorised by the licence. The position might well arise that if the G.O.C., Scottish Command, went fishing with an English civilian companion he might be tried for fishing in Scotland without a licence whereas his companion, not being a Service man, could not.

Mr. Paget

rose—

Mr. Ross

I am not going to argue with my hon. and learned Friend. He may be learned in the law of England, but he is very ignorant of the law of Scotland.

I feel that in peace time it is wrong to make provision for trial by court-martial in Scotland. The Scottish courts could quite well deal with these matters until such time as we reach the happy position when we can codify civil offences to be dealt with by court-martial. I hope that the Government will look into the position.

Another point—the transfer of trials between civil courts—arises out of Clause 220. It means that if an offence is committed in Scotland and a prosecution is brought under Section 70 of the Army Act the offender may be tried in any court in the United Kingdom. That means that if a civil offence is committed in Scotland the person charged can be brought to England and tried in an English court.

In introducing this Clause for dealing with conditions overseas, we have created more difficulties concerning the rights of Scottish courts and the rights, not merely of Scotsmen, but of other people who commit offences in Scotland. It is a serious matter from that point of view, and I repeat, once again, that I regret we have not available to us the guidance of any Law Officer.

On the whole, we commend the Bill, but I trust that in Committee we shall have a chance to look at Clause 70 with a view to finding a solution to the difficulty which has arisen about the law of Scotland. One thing that stands out from the Act of Union is the fact that we in Scotland were guaranteed our own law. We are very jealous of that right, and are extremely anxious to avoid any seeming undermining of it.

I sincerely hope that by the. Committee stage the Government will have found a Scottish Member with a large Conservative majority willing to retire and make way for the Lord Advocate, who is frantically looking for a seat. I am convinced that what the Government are doing in this Bill will make it impossible for them to win Edinburgh, North. It is the heart of legal Scotland. There are more lawyers there than in any other part of Scotland, and owing to this Bill, and particularly owing to Clause 70, I cannot see the Government getting a single vote in that constituency.

5.39 p.m.

Mr. R. T. Paget (Northampton)

In the absence of a Scottish Law Officer and as a Member of the Committee which approved this Bill, I wish to deal with the difficulties raised by my hon. Friend the Member for Kilmarnock (Mr. Ross).

People who go into the Army become liable for offences which would not be offences if committed by civilians. Those various offences are set out in the Bill. The criminal law of England is included by reference. If a man is in Scotland, or otherwise anywhere overseas where the law of England does not normally apply, and if he does something which is forbidden by the law of England, he is committing an offence not against the law of England, but against the Army Act. Therefore, offences committed by a soldier in Scotland, which are offences against the law of England, are punishable as breaches of the Army Act, which is a United Kingdom Act, and not as breaches of the law of England.

Mr. Ross

That is to say, breaches under the law of England would not be breaches if approved by the law of Scotland?

Mr. Paget

That is precisely the point I am making. According to the law of Scotland, a man does not commit an offence if he does something which is not permitted by the law of England. He does not commit an offence if he does something which is forbidden by the Army Act, unless he is a soldier. If he is a soldier, and he does something which is forbidden by the Army Act or which is forbidden by the law of England, he commits a breach of the Army Act. It is for a breach of the Army Act, which is a United Kingdom Act applicable to both England and Scotland, that he will be prosecuted.

Mr. Ross

Not which is, but which will be, a breach of the Army Act.

Mr. Paget

No which has certainly been a breach for nearly a century. Clause 70 simply reproduces a Section which has existed since, I think, 1879. This is not a new Clause, other than being a redrafted Clause. It has the same effect as the Section which has been in operation since about 1879.

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

In that case we shall make English soldiers liable under Scottish law.

Mr. Paget

If we chose to incorporate Scottish law into the Army Act, any Englishman who did something which was forbidden by Scottish law but which was permitted by the Army Act would not commit an offence. English law is also incorporated into the Army Act. Nobody in Scotland will be prosecuted under English law but under United Kingdom law, which is the Army Act, and which incorporates English law. That is the situation. [An HON. MEMBER: "No."] I am sorry, but that is how it stands. That is why we on the Committee thought that this was all right.

Mr. Ross

Does my hon. and learned Friend—

Mr. Deputy-Speaker

This is a Second Reading debate, but hon. Members are rather getting on to Committee points.

Mr. Ross

My hon. and learned Friend was a member of the Committee. I wanted to ask if the Committee had the services, or called in the services at any time, of the Lord Advocate.

Mr. Paget

No. We called in the services of the Judge Advocate-General of the Forces, which is a United Kingdom appointment. He deals with military law both for England and Scotland. Scotland was not slighted in that respect.

Mr. Emrys Hughes (South Ayrshire)

Who were the Scottish members of this Committee?

Mr. Paget

The hon. and gallant Member for Perth and East Perthshire (Colonel Gomme - Duncan)—[HON. MEMBERS: "Oh."]—and the hon. Member for Scotstoun (Mr. J. R. H. Hutchison).

Mr. Hughes

Was there no Labour man on it?

Mr. Paget

We did not have a Labour Member for a Scottish constituency, but we had two of my hon. Friends, at least one of whom has a very honourable Scottish name.

The second point is that, by the Constitution both of England and of Scotland, the right of the civil authority always takes precedence over the right of the military authority. If, therefore, an offence be committed which is an offence both against the Army Act and against the civil law either of Scotland or of England, the Army can prosecute only if the civil authority decides not to do so. If the civil authority prosecutes, the decision of the civil court is binding upon the military court, so that the primacy of the civil law and of the civil authority is in all circumstances maintained.

I intervened only to cover these rather technical, legal points. I did not wish anybody to think that this new Army Act, which is a very great improvement and will benefit the soldier, impinged in any way upon the civil authority or reduced the position of the soldier as a citizen. As a citizen, the soldier retains his full civil rights and remains subject to his civil liabilities. The Army Act merely provides additions to them which are special liabilities and which he undertakes by becoming a soldier.

5.46 p.m.

Colonel Alan Gomme-Duncan (Perth and East Perthshire)

Strongly as I feel on Scottish matters, I think that the hon. and learned Member for Northampton (Mr. Paget) has put his finger on the most important point in this discussion. I am not a lawyer in any sense of the word, either Scots or English, but when we were discussing these matters in the Select Committee and knowing there would be further discussion here on this and other points as well, I thought that the case was made out for the retention of the status quo, as it stands now in the Bill.

I am not happy about the definition of "Scotsman" or "Englishman." That is very difficult, because matters of place of birth, etc., come into it. This matter should be examined very carefully by the Secretary of State because there is great feeling about it in Scotland. All the feeling is genuine, but some of it is misinformed or is under misapprehension. If reasonable Amendments are put down for the Committee stage I hope we shall get the fullest possible consideration of them. I will not say more than that at the moment.

5.48 p.m.

Mr. James H. Hoy (Leith)

A point that was missed by my hon. and learned Friend the Member for Northampton (Mr. Paget) was very important. It was made by my hon. Friend the Member for Aberdeen, North (Mr. Hector Hughes) when he spoke of men going into the Army and having to accept the Army Act. This law will apply not to men going into the Army as Regular soldiers but to those who are being conscripted into the Army, and will serve away from home not because of their own choice but because the law of the land lays it down that they have to serve this period of conscription. I am sure that my hon. and learned Friend will see at once that we are depriving the people of Scotland for three years of rights under Scottish law which they have enjoyed. That point is extremely important.

As my hon. Friend the Member for Kilmarnock (Mr. Ross) stated, there are great differences between the law of Scotland and the law of England. For example, we have retained in the Scottish law a verdict which cannot be obtained under English law, that of "not proven." By being compelled to enter the Armed Forces Scottish people are deprived of the right of this verdict which they have enjoyed in civil life.

Brigadier Prior-Palmer

If a Scotsman crosses the Border into England he immediately becomes subject to English law.

Mr. Hoy

The hon. and gallant Gentleman does not quite get my point. My first argument was that the man does not do his service voluntarily. He is a conscript.

Mr. Willis

Surely this also applies to a Scotsman in the Army in Scotland.

Mr. Hoy

I do not want to deal with that point now, because I understand that if a soldier is charged with a civilian offence, it will be for the police to decide in the first instance. I am talking about the purely compulsory side. One would have thought that, in these circumstances—and I am prepared to admit that it has been an oversight on the part of the Government or those concerned—we would have had these two distinct and separate laws with regard to Scotland and to England.

I tried to understand the argument of the right hon. and learned Member for Kensington, South (Sir P. Spens), who presided over the Select Committee. He said that this law has been in operation since 1879, but the Committee was set up because the House felt—and the Secretary of State agreed—that the whole thing needed complete revision. This was the first opportunity that had been taken for many years and is probably the last to be taken for many more years to come. That being so, one would have thought that the law of Scotland would have been taken into consideration.

It is true that, for a period, we have had only one Law Officer for Scotland in the House—the Lord Advocate. He has now gone. and another has been appointed who has been Solicitor-General for three and a half years. As he has not been in the House at all, one could not say that his time was so occupied that at least his advice could not have been sought in such a matter as this. All I ask of the Secretary of State tonight is that, in view of the seriousness of the position, he might, before the debate finishes, give a pledge that, between now and the Committee stage, he will have consultations with the Scottish Law Officers to see whether anything can be done to rectify a matter which people in Scotland feel is very unjust.

5.52 p.m.

Mr. Emrys Hughes (South Ayrshire)

It is quite obvious that the new Lord Advocate—if he is elected for Edinburgh, North—will have a very difficult time. Not only will he have to be consulted on how this Bill is to be tidied up from the point of view of Scotland, but he may be in the unfortunate position of having to make a maiden speech in defence of an Act which, in spite of all the legal technicalities and subtleties, will be regarded as another national grievance.

I cannot conceive the argument that this national grievance has existed since 1879 and that the Scottish Nationalist Party has not yet discovered it. I do not think that this Bill will make the prospective maiden speech of the potential Lord Advocate—if he comes here—any more popular. I can only devoutly hope that we shall not send the hon. and learned Member for Northampton (Mr. Paget) to speak on behalf of the Labour candidate in Edinburgh, North, and so make the election of the new Lord Advocate an absolute certainty.

The hon. Member for Kilmarnock (Mr. Ross) pointed out that some legislation exists in Scotland which does not exist in England. He mentioned the English Salmon and Freshwater Fisheries Act. I do not think that any soldier has yet been court-martialled for salmon poaching. During Question Time today the Deer Poaching (Scotland) Bill was mentioned. So far as I know, serving soldiers are not supplied with fishing rods, but they are supplied with guns and ammunition. There is thus the possibility of soldiers choosing to practise shooting illegally—according to the law of Scotland—and of someone having to decide whether or not such soldiers will be more justly tried under that law of Scotland or that of England.

My objections to the Bill are rather more fundamental—I do not really think that the sort of technicality which has been mentioned will disturb the average soldier so much as others. Why is this new Bill of 138 pages, with all these ramifications, and penalties, and procedures necessary at all? Oliver Cromwell, Julius Caesar—even Napoleon—could have drawn up a code of military law in about one-twentieth of the space taken here. [An HON. MEMBER: "Not now."] They would have to adapt themselves to conditions. Perhaps they might find themselves in the same difficulty, but I cannot think of such great leaders making this elementary mistake of ignoring Scotland. That is what Her Majesty's Government are doing.

The hon. Member for Leith (Mr. Hoy) has made a very serious point. Probably for the next 50 years we are to have a very large Army of conscripts, and many of these elaborate provisions are there for that reason. These men will not be in the Army—as were Cromwell's Ironsides, or Bruce's soldiers at the time of Bannockburn—because they believe in national independence or anything like that. They will be in the Army only because they have been forced to join and will serve, as I have often said before, under conditions of forced labour.

That is why it is necessary to have this elaborate code of discipline and penalties, some of which are very severe. It is to keep the unwilling soldier in the Army in order to keep the Army together. Without this code of repression the Army would disappear within six months. It is such a stupid institution that, after six months' experience of it, the overwhelming majority of soldiers would either resign or run away. It is for that reason that there are all these precautions to hold those men as prisoners inside the Army itself.

I can understand the position in which the right hon. and learned Member for Kensington, South (Sir P. Spens) and the members of his Committee found themselves. The Committee has been very conscientious and deserves the thanks of the House for trying to humanise the code. To humanise the work of the soldier is, indeed, a very difficult thing; humanity and military law by no means coincide. The psychology of fear inevitably plays its part in the Forces, and we have all these provisions for the punishment of soldiers for cowardice, and so on. I understand that the Bill's best defence is that the Committee has endeavoured to make the Army more human than it was, say, 50 years ago. That is to give the ordinary soldier the idea that he is being treated more as a citizen.

Careful study of the Bill discloses that it cannot by any means be described as democratising the Army, making it a civilian Army, and injecting it with the real spirit of democracy. That simply cannot be done. In this revised, improved, and humanised Bill there are six different crimes for which a soldier is liable to be sentenced to death. It is because so many of our young fellow-citizens will, during the next generation or two, become subject to the provisions of this Measure—unless we have a more sensible outlook—that we must very carefully scrutinise every Clause to make sure that we get a fair deal for the ordinary soldier.

If I have any criticism to make of the Select Committee, it is that the ordinary soldier seems not to have had much of a say in the deliberations of the Committee, and that it was largely left to ex-officers, ex-non-commissioned officers, decent-minded lawyers and such people. The point of view of the ordinary soldier, who is likely to be the victim of the court-martial procedure, was not heard at all because the ordinary soldier was not represented on this Committee.

I am not making any retrospective claim on my own behalf, because I realise that I was an extraordinary soldier—some might say an extraordinarily bad soldier. I will not horrify the Secretary of State for War by recalling details of my military career.

Mr. Head

I know them.

Mr. Hughes

Nor do I want to go into details about my five courts-martial, but I do say that there should have been on this Committee somebody who considered the matter entirely from the point of view of the ordinary soldier who is likely to find himself in trouble as a result of having been tried under the code of military discipline.

I, too, have looked at some of these references to mutiny. Mutiny is a very serious thing from the point of view of the ordinary, unimaginative general who cannot see two or three years in advance. When mutiny is successful, it ceases to become mutiny. In civil law mutiny becomes treason. Some hon. Members may remember the old couplet: Treason doth never prosper: what's the reason? For if it prosper, none dare call it treason. There are certain mutinies which have prospered. We owe the existence of the United States of America to the fact that there was a successful mutiny by George Washington.

Dr. Morgan

And Cromwell.

Mr. Hughes

Yes, Cromwell mutinied, too. From the point of view of the King, Cromwell could have been shot for mutiny, and it was fortunate for the Constitution that Cromwell managed to become the law and to inflict the death penalty on the other person. There are in the world still potential George Washingtons who may be liable if tried under this Act.

There is a very suspicious phrase in this Bill which runs like a theme song through the different Clauses—"subject to military law." In certain conditions the whole of the population can become subject to military law. It is possible that, in the event of another war, the whole of this country will become subject to military law, and in what seem rather harmless and ambiguous phrases we find in the Bill certain provisions which may affect the whole of the civilian population. Therefore, it is the duty of this House to subject this well-meaning and apparently innocuous little Bill to the most careful and microscopic survey in its progress through the House.

The death penalty seems to be necessary for no fewer than half a dozen different offences. It is much worse than the civil law in that respect. In addition, there is provision for two years' imprisonment with detention. I should have liked to see a Bill which completely abolished detention barracks. Detention barracks, in spite of the attempt to make them seem respectable, are very dreadful places indeed. If we cannot abolish these barracks, if we need them to maintain the morale of this magnificent institution called the Army, there should be a provision to limit the term that an ordinary conscript soldier or a voluntary soldier can spend in the "glasshouse" to six or three months; indeed, I would like it to be much less, 14 days.

I would like to see in this Bill a provision whereby the soldier who is tired of the Army may retire from it, exactly as a man may retire from Parliament, by applying for an Army Chiltern Hundreds, handing in his resignation and escaping from the democratic rule of the sergeant major. I know what the answer will be to my suggestions. The answer is that if they were adopted there would be no Army at all.

I hold that, in view of the conditions that war has developed into, that might not altogether be a bad thing. When I read in "The Times" today one of our most eminent military critics, Mr. Liddell Hart, saying that five or 10 atom bombs at the most could end the war so far as we are concerned, I wonder whether we are not living in the realm of the obsolete by discussing these antique provisions of an age that has gone. In this spirit of objectivity, I hope I shall be able to do something to improve the Bill in Committee.

6.6 p.m.

Mr. James Hudson (Ealing, North)

Since the intervention of my hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes) I have had the impression that this has become a Scottish night. If it were possible for the arguments on Scotland and on Scottish law to be continued, and if the effect of this Bill were what my hon. Friend the Member for Kilmarnock (Mr. Ross) supposed it would be in Edinburgh, I should be very pleased for those arguments to continue all night, but I am doubtful whether the result would he so fortunate from his point of view and mine as he suggested.

In any case, we have to deal tonight with a Bill which follows a Report by a Committee that has certainly done its work very well and whose recommendations for the most part form the provisions of the new Army Bill. Looking at the names of the members of the Committee, I do not know whether I would go as far as my hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes), who said that the common soldier was not represented on the Committee.

I think that the Committee took into account a great many cruelties and indignities which in the past were imposed on the common soldier, and that, as a result of the Committee's work, these cruelties and indignities will be less in the future. I know that hon. Members were experienced enough in the ways of the Army to remember some of these things.

Mr. Arthur Henderson (Rowley Regis and Tipton)

Perhaps my hon. Friend would care to know that at least two of us on the Committee served as private soldiers at one time.

Mr. Hudson

I should not be in the least surprised. I am saying that I think the common soldier has been remembered. I should be very glad of any changes that could be made to improve his lot.

Dr. Morgan

Give him a little alcohol.

Mr. Hudson

No, that would not improve his lot.

I wish to return to the matter that I raised when we previously discussed the Committee's Report in this House—namely, that certain important provisions which ought to have been considered and included in the Bill have not been so included, for reasons which, in my judgment, are quite unsatisfactory. The Committee said that it had considered the question of providing machinery by which a soldier who had enlisted as a boy could, on reaching the age of eighteen, have a right to apply for a discharge on the ground of conscientious objection. Because the Committee could not finally recommend the provision of such machinery, the Bill has not provided it.

What the Report has done is to show what the Committee hoped and thought might be done—that by administrative means, by work behind the scenes, so to speak, in the War Office, by the Minister, the commanding officer, and in the regiment, the matter might be smoothed out, with no difficulty being raised about conscience in the way in which it has been raised in connection with claims which conscientious objectors have made. I do not accept that conclusion, and I am sorry that the Committee have adopted the view that it is possible to deal with this matter administratively.

The question of conscientious objection in the Army is, of course, a nuisance to the Army. A man who is a conscientious objector is a source of indiscipline in the Army. He is disobeying something, whatever his reason may be, good or bad; and in the minds of those who organise the life and the work of the soldier, indiscipline and disobedience are the offences that cannot be accepted from the military point of view.

But Parliament has decided that the claims of conscience should be considered in this matter of soldiering and of becoming a member of the Army, and arrangements must be made so that the claims of conscience shall be considered. It is my view, a view which, I submit, is becoming stage by stage the accepted principle—indeed I am not sure whether it has not already become the law—that conscience cannot be judged in any sense at all by soldiers.

Indeed, in the Military Service Act, 1939, one of the last important Acts under which the claims of conscience were developed, it was laid down that there should be no military representative on the tribunal, which is a vastly different state of affairs from that which existed in the days when I was called up as a soldier and when, on the grounds of conscience, I had to make my plea before a tribunal.

The military representative was present on the tribunal in those days. Parliament cleared him out. By definite decision of the House, the military representative disappeared, and yet it is now being laid down, as a result of the timidity of the Committee which has been dealing with this matter, that when the question of conscience arises in the case of a boy who joined the Army during his boyhood and who has reached the age of 18, it should be left not to a tribunal but to be settled administratively by the War Office, or the commanding officer, or whosoever it may be.

An excuse was offered by the Committee which dealt with this matter—an excuse that there had not been many cases. Indeed, the Committee said that there had been no cases in which a boy had joined the Army and had afterwards become aware of his conscientious objections. I dare say there were cases which the Committee naturally would not hear about, because the unpopularity of having a conscientious conviction is such as to make it not altogether easy for a boy who has once tried it to persist in his way against all the objections and the unpopularity which he has to meet. I submit to the War Office that there are many cases of conscientious objection which, because of the general difficulties which a boy, in particular, has to meet on such a subject, do not reach the point of a demand to appear before a tribunal.

But, even conceding the argument that there had been no cases when the Committee considered this matter, I am able to say that, since the Committee reported, two cases have come to light. I have referred to them in an earlier debate and I will not develop them further today. They were both in the Navy, and might, therefore, be ruled out of order as not germane to our discussions, but the Navy is involved in the Report, for it was agreed that the Admiralty would follow in the matter of conscientious objection the same procedure as that followed in other Departments. In the case of those two boys whom I have mentioned, that procedure was not followed.

Since then a further case has occurred—last month—of a boy who has developed a conscientious objection to military service. It is the case of a boy named James Ellis, 78, Bedford Street, Leicester, who joined the Army at the age of 15 years and is now 16½. He has been attending Friends' meetings. I can say that without stirring a note of disrespect in the House about Friends' meetings because I think it is agreed on all sides that a doctrine is taught by the Society of Friends which, if believed by those who follow it, may lead, and probably will lead, to such service against war as will require the man who accepts it to take his stand before a tribunal, and claim exemption from military service on the ground of conscience.

Apparently that happened in the case of this boy, and he indicated that he would claim exemption on the ground of conscience; but there is nothing in existing legislation to enable him to do so, and, if this Bill is passed, there will again be nothing in legislation which will enable him to do so.

Sir P. Spens

The Clauses which would give that right are all drafted in Appendix II to our Second Report. They have run into seven or eight long Clauses. Because we had this direct evidence that no bona fide case had been known in the Army or the Air Force, and because they promised that if any such case arose it would be dealt with by a member of the Army Council or the Air Force Council, we decided to leave matters as they were.

Mr. Hudson

That is a very helpful intervention on a point to which I should have come in a short time. I do not object, because it is quoted with much greater authority by the right hon. and learned Member, on account of his position in the Committee, than it could have been quoted by me.

I agree that the Committee examined this matter carefully and was so impressed by its importance that a considerable part of the Report is occupied with the terms of the Amendment to which the right hon. and learned Member has referred. I am grateful to the Committee for that, and I am also grateful to my hon. Friend the Member for Fulham, East (Mr. M. Stewart), who drew attention to the same point, and said that we who regarded ourselves as friends of the conscientious objectors were beholden to the Committee for this Amendment. Indeed we are.

I hope that when we reach the Committee stage, I shall be able to borrow an Amendment instead of drafting one. It will be a frightening experience to go to the Clerks at the Table with an Amendment which will be the equivalent of eight or nine pages of the Order Paper in length—it will be something like that if it is to take the form which the Committee was good enough to recommend—but, after their careful work, I cannot see that I would be wise in attempting anything less and in avoiding so long an exercise of the printer's art.

The job has been done but the Committee boggled at accepting it. It said quite frankly that the only thing to do was to leave it to administrative action. It is that against which I am protesting. I say that this issue has been fought and settled against the soldier. The issue of conscience must be examined in some other form. I would be quite frank with the House. As one who has gone through all these experiences of lodging a claim on the ground of conscientious objection, I say I do not think any committee in the world will ever be adequate for judging the sincerity of a man's conscience.

The only thing to be done in a case like that, where a judgment cannot be arrived at, is for the man to take the line of his Master and hold to it. There is no other way of proving the validity of his conscience. But we have tried, as a Parliament, to meet the situation. We admit the right of men of 18 years of age to lodge a claim. I am complaining that we do not admit the right of the boy of 14 years of age in the Army who as he approaches 18 probably learns there, by the things he understands which he has to do—even if he never attends a Friends' meeting—some of the reasons why it will be difficult—nay, even impossible—for him to carry out the acts which the training of the soldier finally requires that he shall carry out. It is that issue of conscience which I ask shall be faced again in this Measure.

I hope that when we get to the Committee stage we shall not leave this matter to the War Office. I dare say, now that it knows that the attention of the House of Commons is upon it, the War Office will behave itself in the next week or two, and if anyone persists in these claims of conscience we shall get a very careful assessment of the matter. But I do not want the matter to be left, as indeed the House of Commons does not want it to be left, to military influence. The civil tribunal—dissatisfied as I am finally with that—is a much better way of facing the problem than the method of leaving it to a military decision.

A voice has recently been raised in support of this view from a very surprising quarter—very surprising to me. During a debate in the West German Parliament at Bonn, one of Hitler's Generals, General Manteuffel, who has become a supporter of Adenauer and sits in the Adenauer party in the Chamber, was speaking about the Paris Agreements. He was a great fellow from the Nazi point of view and received direct from Hitler his Knight's Cross. The wonderful speech of gratitude he made on that occasion is on record, but things are different now. This is what he said when speaking in December: I would not for one moment consider asking the young men whether they want to be soldiers or not. I refuse even to discuss the matter with the young people. He was a Nazi general, but under the new constitutional regime a new lesson has been suggested to him, and he goes on: What has to be done in the Federal Republic is decided by me and my colleagues here in Parliament. So the question of what shall be done with young men in relation to war is a matter for discussion by a Member of Parliament and his colleagues in Parliament.

Although this may be a Nazi general speaking, I agree with him. I say that if a Nazi general can learn the necessity for taking into the hands of Parliament responsibility for what shall be done where the claims of conscience are involved, it is equally necessary for us, now we are discussing this Measure, to lay down that, not by administrative action in the War Office but by our own legal interpretation definitely embodied in the terms of the Act, and only by that means, shall we leave the claims of these young men to be considered.

This question of conscience has not bulked so large in the last few years as it did in the First World War, when my hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes), who has referred tonight to his experiences, and I knew it so personally. Nor has it bulked so large as it did in the Second World War. But men are becoming aware that the ordinary processes of defence which we try to provide for ourselves and for them are becoming increasingly hopeless from the point of view of effecting any good in the world.

Mankind will be swung back again to the point where each individual will consider for himself what, by his own life, he can contribute to the stand and protest that has now got to be made against war, which can bring to mankind no good at all. I am quite certain that we are on the threshold of a great re-emergence of the claims of conscience. I want to see defended the right of a young man to say, as he must say—it has to be done by law before a tribunal—what are his views, his rights, and his duty in a matter of this sort.

Because I want that to be done, I am unwilling to leave anything to be decided against him behind the scenes, and I am most of all unwilling that a decision shall be made—as has been made in connection with the two young men in the Navy to whom I referred—by means of purchase out of the Services. It appears that £50 was paid for one of the young men about whom I complained and for the £50 he regained his freedom. It is not that sort of freedom I want.

If a man has a conscientious conviction, let it stand as a conviction and be decided as such. Do not let it stand according to the power of his purse to buy him out. I shall get the consent and support of all sides of the House when I say that there ought to be complete equality as between man and man in the claim made before a tribunal on an issue of this sort, and that no issue of purchase should be brought into it. I hope that the administrative rules that have been referred to as the sort of thing to which we could leave this question of conscience to be considered, will once and for all be wiped out so far as the right of purchase in the matter of conscience is involved.

Now that we are engaged in the Second Reading debate, I ask the House to consider whether it will not be able to prepare its mind to give unanimous support for the excellent and very helpful Clause that the Committee prepared but finally failed to recommend to the House for inclusion in the Bill.

6.31 p.m.

Mr. James Simmons (Brierley Hill)

When taking part in the debate on the Second Reading of this new Bill, we have to remember the reason it is before us tonight. We on this side especially have a right to remember 1st April, 1952, when the foolishness of the Government led to three debates lasting w.11 into the small hours of the morning, when the big guns on both sides thundered—I was only a minor cannon in that engagement; some say that I was a repeating rifle—and when the Leader of the House and the Patronage Secretary bullied, blustered and blundered with their half hundred who still rolled on into the night and when eventually the Government guns were spiked.

Closure after Closure was moved by the Patronage Secretary, but on the third day the debate came to an end, the Government capitulated and they agreed to appoint the Select Committee, whose Report we have now had in our hands for some time and on which the new Army Bill is based.

Today, all has been reasonableness and light. Compliments and bouquets have been exchanged between the two Front Benches. The lion and the lamb have embraced. This is a bit too much for me; it is more than flesh and blood can stand. After all, what we are discussing has not been given to us by the Government. It has been forced out of the Government by the action of lion. Members on this side of the House in good, honest Parliamentary fight, and it is time that somebody on this side claimed the credit for what was done mainly by the backbenchers on this side of the House on 1st, 2nd and 3rd April, 1952, when we forced the Government to capitulate.

The Bill is an improvement on the one that it supersedes, and we must congratulate the Select Committee on the attention which it has paid to the problems with which it was confronted, the industry it has bestowed upon the task given to it and upon the production of the Bill; but although the Bill is an improvement it is by no means perfect.

During this debate, one or two hon. Members have referred to the position of the ordinary soldier. We were told by my right hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. A. Henderson) that two members of the Committee had been private soldiers. We do not want the "has beens" to put the point of view of the private soldier. We want those who have always been private soldiers to put the point of view of the private soldier, because one's environment has a great deal to do with one's outlook.

When a person reaches the upper circles, he sometimes forgets those on whose shoulders he climbed, but the man who has never been more than a private soldier has not been heard as far as the Committee and this Bill were concerned. As a result, many ambiguities will have to be cleared up before we finish dealing with the Bill in Committee.

In my opinion, the question of the ordinary soldier arises especially with regard to courts-martial. Courts-martial are composed entirely of commissioned officers. Why should that be? Why should there not be a representative of the other ranks on the court-martial? Why should it not be possible, instead of an officer being the soldier's friend when he goes before a court-martial, for one of his own colleagues of his own rank to go before it as the soldier's friend? The officer certainly would not be able to interpret before a court-martial the psychology, the feeling, the thoughts and the innermost desires of the ordinary soldier, because he has been too far removed from that position himself.

I support what my hon. Friend the Member for Ealing, North (Mr. J. Hudson) said about the question of conscientious objection. I am in a rather remarkable position on this question. We have four sons. Two of them served in His Majesty's Forces and two of them declared their conscientious objection to military service, and so I can look from the point of view of the parent and the personal point of view fairly impartially on the question of conscientious objection.

I believe that it is the right of every man to express his conscientious objection to war or to any other thing. I remember the First World War. I remember the brutal, callous and inhuman treatment of many men who declared themselves as conscientious objectors. The late general secretary of my own trade union, the National Union of General and Municipal Workers—Charles Dukes—went through the most inhuman and degrading treatment by the military authorities because he had dared to stand for the right of conscientious objection.

Now we are faced, as my hon. Friend the Member for Ealing, North has said, with recruitment of boys from the age of 15 for boy service. At that age, a boy's mind is unformed and his outlook on life is immature. He goes into the Army at the end of three years. What can happen in three years to the mind of any of us, wherever we are, much less to the mind of a young boy between the ages of 15 and 18?

A boy between 15 and 18 years of age is just beginning to develop his intellectual powers and his thinking capacity. If at the end of three years he comes to an absolutely conscientious objection to war, to violence and to military service, it is said that he should be handed to the lions of the War Office, that he should not be allowed to go before civilised human beings, before people who have been called together because of impartial minds and outlook and for their civilian background—that is the important thing—but should be thrown to the military lions, the people who want him and who have already started to devour him.

I think it is monstrous that the military people should decide the future of the lad. The military people want the boy, so the military people are to decide whether they shall have him or not. That is to make them judge and jury in the case. The poor young lad of 18 who has developed a genuine conscientious objection has no chance at all under the method which the Select Committee has suggested. I agree with my hon. Friend the Member for Ealing, North that the Select Committee, which knew what it wanted, knew what it believed, had not the courage of its convictions and threw the matter back to the military people, in whom I have no confidence at all as judges of matters of conscience and things of that kind.

Mr. Wigg

My hon. Friend charges us who were on the Select Committee with lack of courage. Is he not aware that there has not been discovered one single case of this kind? What we have obtained is something much more valuable than what we should have got had we tackled the impossible task of trying to have this matter dealt with by legislative action. We have an assurance, which, I think, is binding on the present and on any future Government, that should a case ever arise, one never having arisen, it will be dealt with by administrative action.

Mr. J. Hudson

I think my hon. Friend the Member for Dudley (Mr. Wigg) was not here when I spoke. I gave an actual case that arose in this last week.

Mr. Wigg

I have spoken once already, and I do not want to debate this matter by making another speech. I dealt with this point in the debate on 12th November. My hon. Friend the Member for Brierley Hill (Mr. Simmons) is the last man to be unfair, but I think that he has been led away by my hon. Friend below the Gangway, the Member for Ealing, North (Mr. J. Hudson), and I am just fetching him back to the facts.

Mr. Simmons

If I have been unfair to anyone, I apologise. I did not mean to be unfair to anyone. I object to military authorities by administrative action dealing with the case of a man with a conscientious objection to military service. It is the object of the military authorities to get him into military service. How can they be fair, impartial judges of that man's conscientious objection? That is my objection to this proposal, and by that I stand.

Now I come to first field punishment. Towards the end of the First World War, when I had left the Army, I conducted a campaign against first field punishment. I had seen first field punishment on active service. I have seen men tied to the gun wheel. I have seen men pegged out on the sand in the burning sun. Because I publicly exposed first field punishment I was sent away for three months' rest and recuperation in one of Her Majesty's temperance hotels, at Armley, in Leeds, so I speak on this question of first field punishment with some feeling.

I notice that the Select Committee's Report of October, 1953, is fairly explicit on this matter. It says: A special clause to deal with Field Punishment is recommended in Clause 49 (at present proviso (5) of Section 44). It does not apply to women. The reference to 'flogging' and 'attachment to a fixed object' and 'injury to life or limb' are omitted as now obsolete and of only historical interest. The clause as drafted would give no authority for any punishments of such a nature. I wonder.

The Clause as drafted, which is now Clause 73, says: Field punishment shall consist of such duties or drills, in addition to those which the offender might be required to perform if he were not undergoing punishment, and such loss of privileges, as may be provided by or under rules to be made by the Secretary of State, and may include confinement in such place and manner as may be so provided and such personal restraint as may be necessary to prevent the escape of the offender and as may be so provided. I can see nothing in that to prevent a man from being tied to a gun wheel, because of the argument of personal restraint. I hope that some clarification will be given in Committee of the scope of the Clause.

My hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes) referred to the Bill as an elaborate code of discipline, and I think he is about right. Part I consists of 23 Clauses and Part II of 120 Clauses all of them dealing with discipline, trial and punishment. Part III contains 10 Clauses all concerned with deductions and enforcement. In Part V there are 19 Clauses on arrests and punishments. In Part VI there are 22 Clauses all dealing with some point of military law and its applications to various parts of the country.

The whole of the Bill, with the exception of one or two Clauses here and there, deals with restraint and discipline and punishments. I wonder whether we need such an elaborate Bill as this to maintain the discipline of Her Majesty's Forces in this enlightened age. Surely it is not very much encouragement to young men to go into the Armed Forces to tell them that there is a special Bill designed by Parliament, going through Parliament, shortly to become law, consisting of more than 220 Clauses of which about 200 deal with discipline and enforcement.

As my hon. Friend the Member for South Ayrshire said, this Bill does not democratise the Army. It does not come anywhere near democratising the Army. The Bill, so to speak, pads the chains which bind the soldiers, makes them a little less irksome than they used to be in the more savage days of flogging and things like that. It is not a great Measure of social reform. It is a Measure of restriction and restraint upon a section of the community set apart to do a certain task.

An important point that has emerged during the debate—the most important point, in my opinion—is that made by an hon. Friend of mine who reminded the House that the majority of the men who will be affected by the Bill are men who will be in the Services not of their own free will and choice but who are there as conscripts. I prefer to say "conscripts." That is a good, honest way of describing them. "National Service" sounds a little more civilised, but, after all, they are conscripts. I am longing for the day when we can do away with conscription altogether. The Government have much responsibility for it. If they had done their recruiting job properly, if they had built up the Regular Forces properly, we should not have to be bothered about conscripts.

However, we have to bother about conscripts, for the major portion of the Armed Forces—at least half of them, if not the most of them—will be of conscripts. They are civilians who are giving two years of their lives to the service of their country. I will not say "not willingly." Many of them go willingly, but they do not go voluntarily. They go because of an obligation placed upon them by Parliament and the State. Some of the regulations which are laid down in the Bill are not the kind of regulations we should impose upon men who are civilians, men who were civilians before they entered the Army and will be civilians again two years afterwards when they leave the Army.

There is the important point of recruiting. If we want young men who join the Army as National Service men to remain in the Forces we must make their two years in the Armed Forces as attractive as possible to them. We shall not make them attractive by means of the elaborate code of discipline and punishment which is embodied in the Bill.

Mr. Wigg

There is nobody in the House whom I want to convert more than my hon. Friend. If he will be good enough between now and the Committee stage to go through the code which he condemns and compare it with the codes of any other Army in the world and he finds elsewhere something better, I will join with him in putting forward an Amendment.

Mr. Simmons

I said that it was a vast improvement on the code which has been imposed in the past.

Mr. Wigg

The best in the world.

Mr. Simmons

No doubt it is the best in the world, but there is no getting away from the fact that the Bill aims at discipline and punishment. I want to see the day when places like "glasshouses" and military prisons are abolished. We are not getting nearer that day by means of the Bill.

The question of cowardice is raised in the provisions of the Bill. As one who served in the First World War, I should not like to judge any man who endured what was endured at Passchendaele and in other parts of the Western Front in the First World War, which really was a war. I should not like to judge as a coward any man whose nerve broke. To punish a man for cowardice is out of date. It is antediluvian. The man whose nerve gives way under the stress and strain of war is not a coward and is not to be cured by physical treatment. He can be cured only by mental treatment. Men who are on active service and who are charged with cowardice should not be dealt with by court-martial but by doctors and those who have specialised in the care of the mind and the cure of emotional diseases.

I know that the Minister is very anxious to reply, as he always is in these debates, but there is one other point which I should like to make and on which I know I shall again receive reproof from my own side of the House. What reproofs I have had today have come from my hon. Friends. I am accustomed to being in a minority of one and I sometimes enjoy it. I am concerned about the Army and Air Force (Annual) Bill. It has been explained to me that the new procedure will be better than the old, but I think that any Measure which involves the care and training and treatment of such a large proportion of our population as does the Army and Air Force (Annual) Bill should have plenty of Parliamentary time devoted to its discussion.

It is possible that this point will be further elucidated in Committee, but I should like to know what is the true effect of Clause 226. I know that the Government were obliged to get the old Measure through the House before a certain date each year. If they failed to do so we would have no Armed Forces and, therefore, no Government could refuse time for discussion.

I wonder whether the Clause which we now have in the Bill weakens that position, because now Her Majesty may from time to time by Order in Council provide that this Act shall continue in force for a period of twelve months beyond the date on which it would otherwise expire:… I have always heard it argued that the House has a far more restrictive discussion when we are discussing an Order in Council than when we are discussing a Bill, and it is certainly true that there is no power to amend an Order in Council. Therefore, in spite of arguments put to me by my colleagues, I hope that Clause 226 will be very carefully examined and that no Parliamentary opportunity will be taken away from the House to debate at length, if necessary, the welfare and the care of the men who wear the Queen's uniform.

6.57 p.m.

Mr. John Strachey (Dundee, West)

The Secretary of State for War, in introducing the Bill, said that there was not very much more to say about it. I believe that he slightly under-estimated the views and feelings of some of my hon. Friends, especially perhaps my hon. and learned and Scottish Friends who had a good deal to say on an issue of Scottish law. I am certainly not competent to speak on that issue, but I think that it needs an answer from the Government, perhaps during the Committee stage.

My hon. Friend the Member for Ealing, North (Mr. J. Hudson) and my hon. Friend the Member for Brierley Hill (Mr. Simmons) made some important points, especially my hon. Friend the Member for Brierley Hill, as he always does. He wanted the provisions for what I would call the modernisation and humanisation of the Army code, which is undoubtedly represented by the Bill, to go further still. He pressed very hard, as often before, in that direction. He has, of course, every right to do so.

I would emphasise to him what I feel I can say more easily than some of my hon. and right hon. Friends because I was not a member of the Select Committee. The Committee's work unquestionably represents the biggest step forward in that direction that we have seen in our time. My hon. Friend the Member for Brierley Hill may press the Government to go further, but I have no doubt that the Report represents a very great advance and extraordinarily careful and laborious work on the part of members of the Select Committee. I would only draw my hon. Friend's attention to the restriction of the death penalty, which seems to me of great importance.

My hon. Friend made the point that the Bill is concerned in page after page and Clause after Clause with a code of restriction and punishment, but, after all, there has to be an Army Code. The fact that it is long and elaborate may mean, and does mean in this case, that it is carefully drawn for the protection of the soldier himself. A great deal of its elaboration arises from that fact.

My hon. Friend also made the point that a very important provision of the Bill altered our basic constitutional procedure in respect of the Army and Air Force (Annual) Bill. He was very right in saying that it was a big step which we should not take without mature consideration. Nevertheless, I think that the Committee's recommendations, embodied in the Bill, are correct in this respect. They would replace by an affirmative Resolution of Parliament the need to pass a special Bill each year for the purpose of obtaining our annual permission to place some hundreds of thousands of British citizens in the position of being subject to Army law.

Though the Secretary of State had certain reservations about it, at present the recommendations provide for a quin-quennial expert review of the Act on the lines of the review which has just been made. That seems to be a very valuable provision, because what the Committee has done is that it has brought the Army and Air Force Acts into line with twentieth century practice after a lapse of a hundred years, and all those arrears of work had to be made up. The Acts are now brought up to date.

But not only have they been brought up to date; they have to be kept up to date. I think it is very good that we have here, as it were, built in a provision by which an expert committee and a Committee of this House, every five years, will examine these Acts and see whether or not they are becoming out of date again. We are not engaged now on a once-for-all job. This is a job which needs doing periodically so that never again does the law under which the Armed Forces have to operate get totally out-of-date and out of tune with all our contemporary ideas.

I should like to close by saying that the House should not underestimate the importance of seeing that conditions in the Armed Forces under which serving men have to live are in tune with our contemporary ideas of life, including the educational and general cultural standards which the nation has reached. I have said not only have they to be brought into line with modern ideas but they have to be kept in line with those ideas. That reminds me of a point made by several hon. Members, their effect on recruiting. It is not only a question of people joining the Army, but of people staying in the Army when they have joined it.

My hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes) said he wished to see an Army from which men could resign in the same way as officers resign or as hon. Members resign from this House. Does he realise that under the provisions which the Government have introduced concerning the three-year term of service we are approaching that position, and I think, on the whole, rightly? But it means that the Government must make every effort to maintain the Regular content of the Army by the most urgent and anxious attention to the conditions under which a soldier lives and under which he will continue to live if he stays in the Army, for, otherwise, at the end of his three years, he will simply go away.

Therefore, if we are to maintain the Regular content of the Army, which we have all agreed is absolutely indispensable, we must bring the law as well as other conditions of Army life under constant review in this House. I agree with what has been said so often and so forcibly by my hon. Friend the Member for Dudley (Mr. Wigg) that today the situation in regard to the Regular content in the Army is one of gravity, and I hope the passage of this Bill will do something to improve what my hon. Friend called the internal recruiting; in simple language, the option of the National Service man to become a member of the Regular Armed Forces.

I cannot share the complacency with which the Under-Secretary answered Questions today on this topic. I think he missed the point. The position may not be critical in respect of men joining, but is it not critical in respect of men staying in the Army? We shall be in a parlous position if the Government have to come to the House and say that, in spite of the fact that our commitments throughout the world have been substantially reduced, there is no prospect of reducing the period of National Service because of their failure to get and to retain men in the Regular Forces.

We must not be faced with a situation in which the Government make their own failure in that sphere an excuse for doing nothing about the period of National Service. I am very much afraid that this argument will be deployed to us and I cannot contemplate a period of two years' National Service in perpetuity. Therefore, we regard this Measure for the improvement of the condition of men who are serving in the Regular Army as being something of the very highest importance.

7.7 p.m.

The Under-Secretary of State for War (Mr. Fitzroy Maclean)

Today's debate on the principle of the Bill has shown a general measure of agreement on both sides of the House, and that makes it possible to look forward to the same spirit governing the remainder of our discussion. Certainly, if there has been any cleavage of opinion it has not strictly followed party lines. In fact, it is rather difficult to see what lines it has followed. In any case, I was glad to hear the hon. Member for Fulham, East (Mr. M. Stewart) expressing the hope that the House would have no hesitation in giving the Bill a Second Reading. The right hon. Gentleman the Member for Dundee, West (Mr. Strachey) said much the same thing.

A number of points of substance have been raised and perhaps I might say a word about some of them. First, the hon. Member for Fulham, East mentioned the last Clause of the Bill and the constitutional change which it involves. That is something which, I think, must be dealt with during the Committee stage, and there will be every opportunity for dealing with it then.

The same applies to the important point raised by hon. Members on both sides of the House about the application of Clause 70, and, in particular, subsection (2) to Scotland and to Scottish soldiers. Though I myself represent an English constituency I would be the last person to attempt to ride rough-shod over the susceptibilities of my fellow Scots. I can assure the House that the considerations that have been advanced will be given full and sympathetic consideration. I would add that my right hon. Friend already had the advantage of consulting the Lord Advocate on this and other points and will consult him further in the future.

While I do not want to anticipate the discussions in Committee, it must be borne in mind that this is not an entirely simple problem. It would undoubtedly complicate matters if there were two legal codes involved. The question has also got to be decided as to who can claim the right and the honour, if I may say so, of being Scottish. Further, I do not know how far the hon. and learned Gentleman the Member for Aberdeen, North (Mr. Hector Hughes) has taken into consideration subsection (4) of Clause 70 as providing the answer to much of what he said.

The hon. and learned Member listed at considerable length the shortcomings and omissions from the Bill, emphasising the need for a legal mind to be turned on to it. He will have that opportunity at length when we come to the Committee stage—indeed, we have already had a foretaste of it. At the same time, I would point out that the Select Committee was presided over by a very great lawyer, my right hon. and learned Friend the Member for Kensington, South (Sir P. Spens), who made such a pertinent intervention just now. It also included the hon. and learned Member for Northampton (Mr. Paget), who also intervened so helpfully in this debate.

The hon. Member for Dudley (Mr. Wigg) asked when the new Acts would come into operation. Clearly, that depends on when the Bills pass into law, but, supposing they are passed in the first half of the present year, it should be possible to bring the Acts into operation by 1st January, 1957; in other words, 17 or 18 months from the date when the new Bills become law. At first sight, this may seem to be a considerable delay, but it must be remembered that the revision of the law will involve a fundamental recasting of the Manuals of Military and Air Force Law and of the Rules of Procedure, as well as the drafting of many new regulations.

There will also be consequential Amendments to various forms and books of regulations, and considerable time will then be required for printing and circulating the revised Manuals, Rules, regulations, and so on, as well as for enabling a large number of people to familiarise themselves with the new Rules. Probably the largest of the tasks is the production of a new Manual of Military Law. Here, we welcome the suggestion that part of this Manual might be written by a distinguished historian. I do not know whether the hon. Member for Dudley has any other suggestions to make? While he is about it, would he like to consider changing the colour of that book? For instance, the present bright red might perhaps be changed to blue.

Mr. Wigg

Unless I am colour blind, the present colour is green.

Mr. Maclean

I am assured by my right hon. Friend the Secretary of State for War that it is red and, as he has had considerably more experience of it than I have, I have taken his word for it.

However, green is a neutral colour and I seem to remember that it is also the colour of the Army Education Corps. But, whatever colour the new book may be, it appears that the printers will require a minimum of six months between the receipt of the galley proofs two months after the Royal Assent, and the delivery of the Manual, whilst the checking of book proofs, indexing and cross-referencing will take a further two months.

Its distribution to units and sub-units all over the world will also take two months more, which makes a total of 12 months in all from the Royal Assent. Another three to six months is needed to give the Army time to study the Manual before the Act becomes operative. In the circumstances I think that hon. Members will agree that the suggested period of 17 or 18 months is not unreasonable. In any case, I can give an assurance that if it is found possible to reduce that period it will be done.

The hon. Member for Dudley also mentioned conditions of service, saying that these were what mattered. We fully realise that, and we are trying to do everything we can to improve those conditions. On the question of prolongations, he said that his right hon. Friend the Member for Bassetlaw (Mr. Bellenger) had asked a silly question and he suggested, if not that my answer was as silly as the question, at any rate that it was evasive. The right hon. Gentleman the Member for Dundee, West said much the same, which, again, is evidence of lines of cleavage different from those to which we are accustomed. My answer is that if the right hon. Gentleman asks a less silly question, we will give him the appropriate answer. Meanwhile, I suggest that it is too early to judge the way in which the three-year engagement is working out, and that he should give the chickens a chance to hatch before counting them.

Mr. Wigg

I am not counting chickens before they are hatched, I am counting chickens that have come home to roost. What I want the hon. Gentleman to persuade his right hon. Friend to do is to let the public judge. He could either give the answers to the Questions I have twice put on the Order Paper by stating the prolongations three-monthly, if not month by month, or indicate now when it will be convenient to give the figures. The hon. Gentleman is giving an answer to my right hon. Friend the Member for Bassetlaw because it is convenient, but he is denying me the information because it is inconvenient.

Mr. Maclean

As I have told the hon. Gentleman, a considerable amount of time and effort is involved in getting those figures. That is why they have not been produced so far, but we are now considering whether there would be sufficient justification and it is possible that the figures will be made available. If the hon. Gentleman will keep in touch with me, I will let him know about it.

My hon. and gallant Friend the Member for Worthing (Brigadier Prior-Palmer) raised the question of the recommendations of the Select Committee which were not included in the Bill. I assure him that close attention is being paid to those recommendations and that every effort will be made to give effect to them.

We had, as we always have in any debate connected with defence, a spirited intervention from the hon. Member for South Ayrshire (Mr. Emrys Hughes). I am sorry that the hon. Member is not in the Chamber to hear my answer to his points; perhaps he thought they were not worth answering. He said—I thought it rather a sweeping statement even for him—that soldiers are not, and will not be, in the Army "because they believe in national independence or anything like that." His views, although one may respect him for the sincerity with which he holds them, are, fortunately, not very widely held, and my own feeling is that many soldiers are in the Army just because they do believe in national independence or, as the hon. Member puts it, "anything like that." I was glad that he called the Bill well-meaning, which, coming from him, is a high compliment.

The hon. Members for Ealing, North (Mr. J. Hudson) and Brierley Hill (Mr. Simmons) raised the question of conscientious objectors and mentioned, in particular, boys who enlist in the Army as boys and at 18, when the time comes for them to do their Regular service, develop conscientious objections. The question of how best to deal with the problem which such boys present was considered very carefully and at great length by the Select Committee, but in view of the complexity of the Clauses which would have been needed in the Bill it was decided that the matter could best be dealt with administratively. I can assure both hon. Gentlemen that if there should be a bona fide case the boy will be discharged or at any rate restricted to non-combatant duties.

Both hon. Members took the line that it was grossly unfair that the fate of such boys should be entrusted to the military and that the Army did not like conscientious objectors. The hon. Member for Brierley Hill called them "ravening lions" or something of that kind. I really do not think that does justice to the Army. The fact remains that most soldiers have at some stage or other been involved in a war in some capacity or another and I should have thought that anybody who had been involved in a war was bound to have some sympathy with the point of view of the conscientious objector, the human being who feels that he does not like any of it and does not wish to have any part in it. My own feeling is that whenever soldiers develop conscientious scruples they will receive fair and sympathetic treatment provided that their scruples are genuine and bona fide.

The hon. Member for Ealing, North mentioned a specific case. Hitherto, there have been no cases of boys developing conscientious objections at the end of their period of boys' service, but if the hon. Member will let me have particulars of the case which he mentioned I will certainly look into it and do anything I can to help.

Mr. Simmons

Will the hon. Member tell me whether when the matters are dealt with administratively they will be dealt with by civilians or by officers in the War Office, bearing in mind that the military representatives, as in the First World War tribunals, were abolished by Parliament when the Second World War tribunals were set up?

Mr. Maclean

The cases will be dealt with by the ordinary administrative machinery, which contains both soldiers and civilians, and, in the ultimate resort, by the Army Council, where there are also both soldiers and civilians. Again, this is a point which could better be dealt with during the Committee stage, and both hon. Members will have every opportunity of raising the matter then. Once again, I would point out that the idea of incorporating such a provision in the Bill was not turned down flat by the Committee; it was simply that technical difficulties were encountered. In Committee there will be an opportunity for hon. Members to explore whether it is possible to circumvent the difficulties without making the Bill unduly long and complicated.

I have done my best to deal with most of the points of substance that have been raised during the debate, and I hope that such difficulties as have come to light will not in the long run prove insuperable. I also hope that the relative harmony that has been reflected in our discussions today may continue throughout the later stages of the Bill.

Mr. Wigg

So that the same mistake is not made again, might I point out that the current copy of the Manual of Military Law is green and not red, and that the Secretary of State is 20 years out of date?

Mr. Head

I apologise for letting the Under-Secretary down. When I was in the Army, which is some time ago, the Manual was red. It has changed colour since I left.

Mr. M. Stewart

Will the hon. Gentleman also remember that the colour of the Royal Army Education Corps is not green, but blue?

Question put and agreed to.

Bill accordingly read a Second time.

Committed to a Committee of the whole House.—[Mr. Redmayne.]

Committee Tomorrow.