NAVAL DISCIPLINE BILL (Hansard, 20 March 1957)

§ The Parliamentary and Financial Secretary to the Admiralty (Mr. Christopher Soames)

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

The purpose of the Bill is to give effect, with a few minor alterations, to the recommendations of the Select Committee on the Naval Discipline Act. Before dealing with the Bill itself, I should like to express our thanks to the Select Committee—under the chairmanship of my right hon. and learned Friend the Member for Kensington, South (Sir P. Spens)—for the thorough and efficient manner it set about its task, and our admiration of the results which it achieved. We owe a special debt of gratitude to my right hon. and learned Friend for he has chaired not only this Select Committee, but also the Select Committee on the Army and Air Force Acts which charted so much of the ground which this Select Committee had to cover later.

Many features of the new Army and Air Force Acts have been incorporated in the Bill. Indeed, it is fair to say that we have followed them except where there is some clear naval reason for diverging. The result is a Bill which goes far to standardise the discipline of all three Services and to modernise the Act of 1866, without destroying its characteristically naval flavour.

One of the most important changes in the Bill is to give the Navy the same power as the other two Services to try civil offences committed on shore in this country. Again we have adopted almost exactly the same provisions relating to the apprehension of deserters and absentees as now apply to men of the other Services, so simplifying the task of the civil authorities and the police and also, incidentally, getting rid of the antiquated Naval Deserters Act, 1847. Now that flying is an integral part of naval life, we have thought it right to introduce specific offences relating to aircraft, and these are almost identical with those which have proved satisfactory in the R.A.F. In regard to the death penalty, too, we have come into line with the other two Services, removing all 448 mandatory provisions and retaining it in the main only for offences committed with intent to assist the enemy". Now for the points where we differ from the Army and Air Force Acts. The most important difference between the Bill and the Army and Air Force Acts lies in the wider powers of punishment which a commanding officer may mete out summarily without convening a court-martial. Here we are dealing with matters which must at all hazards be brought to the test of reality. A court-martial, to deserve the name, presupposes the attendance of experienced officers who can be relieved of their other duties in order to form the court, a judge advocate, witnesses, shorthand writers and so forth. A court-martial, in fact, practically must be held in port. But Her Majesty's ships cannot be required to proceed to base and stay there for the trial of any and every act of indiscipline that sailors commit while on service.

So the captain of one of Her Majesty's ships must in effect be the magistrate of his own community. It follows from this that a court-martial is held less often in the Navy than in the other two Services and it has tended to have a higher status. For example, the president must be at least a captain R.N. and the minimum ranks laid down for the other members are higher than in the Army and the R.A.F.

Another difference is that, as the consequences of insubordination or negligence in a ship at sea can be as grave in time of peace as in time of war, we do not differentiate between the punishment of offences committed "on active service" and those committed at other times.

Now for the points at which the Bill differs from the recommendations of the Select Committee. Only two are of substance. The Fifth Schedule to the Select Committee's draft Bill contained an amendment to Section 46 of the Naval Prize Act, 1864, designed to absorb Section 31 of the present Naval Discipline Act, which deals with the obligation of the masters of merchant ships under convoy to obey the commanding officer of the escort and indemnifies the commanding officer against any loss of life or property that may be caused by his compelling obedience of the master.

449 We have subsequently found that this device is not satisfactory, partly because Section 46 of the Naval Prize Act applies only to British ships, and so would not indemnify against damage to other vessels; partly because that Section does not apply to an unescorted convoy and would not, therefore, apply to a convoy with a Royal Naval commodore in charge, but not escorted by warships; and partly because it contains penal provisions which cannot properly be applied to ships registered outside the United Kingdom while they are on the high seas. For those reasons, we have had to alter the Select Committee's recommendations and include a new Clause 131 dealing with the whole matter.

The other change in the Select Committee's draft is over the composition of courts-martial, and will make all officers of appropriate rank eligible to sit on courts-martial and disciplinary courts—this is what the present Bill sets out—provided that they have held a commission for three years. The Select Committee recommended that eligibility should be confined to the general list and corresponding officers holding permanent commissions in the reserves. The Government did not feel able to agree with that, because it involved excluding officers of the supplementary and special duties lists who have been eligible to sit in the past and who are capable of performing the duty, and also because it would mean excluding all temporary officers of the reserves, many of whom would be well qualified to sit on courts-martial, especially in time of war.

The Select Committee further recommended that the president and no fewer than half the other members of a court-martial should be officers holding a bridge watch-keeping certificate. This provision was presumably designed to perpetuate the predominance of the old-style executive officers. Although the Government consider that it will be necessary to limit the number of non-seamen on courts-martial, at any rate for the time being, in view of the wider experience of seamen in disciplinary matters, nevertheless, they feel that it is undesirable to fix any definite proportion by Statute.

The Select Committee's draft Bill also required the convening authority to report his reasons to the Admiralty if he 450 nominated officers of certain ranks and appointments to be members of courts-martial. In fact, the minimum ranks laid down in subsections (1), (5), (6), (7), and (8) of Clause 54 seem quite sufficient; and the accused, of course, always has the right to challenge a member of the court, if he considers that he may, by reason of his appointment, already know too much about the case.

A further point is that none of the restrictions proposed by the Select Committee in this Clause applies to courts-martial under the Army and Air Force Acts. If we altered it we should be differing from the other two Services in this respect. They have the same rule as that which we are now proposing, that all officers of appropriate rank who have held a commission for three years are eligible, and it is left to the convening authority to nominate the most suitable We are convinced that this is the most liberal and flexible arrangement possible.

Other minor and drafting improvements—as we think—have been made but these are within the spirit of the Select Committee's recommendations.

Some hon. Members, particularly hon. and gallant Members, will regret the disappearance of some of the ancient phraseology of the old Act. We are particularly sad to repeal Section 44, which contains these time-honoured words: … punished according to the laws and customs in such cases used at sea. These words refer back to the Rules of Oleron, the most important of all medieval embodiments of maritime law and custom. They were based on the sea-laws of the Romans who, in their turn, had taken them from Rhodian law, itself derived, in remote antiquity, from the Phoenicians of Tyre and Sidon.

These rules, adopted by many seafaring countries, laid down rough, ready and, in the modern context, somewhat brutal punishments to fit various crimes. Death by drowning or burial alive, tarring and feathering, hands to be cut off, keelhauling, and flogging at the capstan, were the principal punishments. These rules governed the conduct of British sailors at sea until 1653, when the Articles of War defined specific punishments for certain crimes; for the rest, the Rules of Oleron held sway, enshrined in the instruction that other crimes should be dealt with according to the laws and customs of the sea". 451 The Acts of 1661, 1749, 1847 and 1866, to which this Bill is the direct successor, followed the same lines. They specified more punishments to fit more crimes, but always that sentence remained to cover the residue.

So the story of the rules of conduct of life at sea is a story of gradual evolution. Professor Lewis, who recently wrote an introduction to the Admiralty Manual on Court Martial procedure, described the Rules of Oleron as a whole big hogshead of customs which the State has dipped into from time to time to abstract certain cupsful, by specifying certain crimes And punishments.

Government succeeded Government, Act supplanted Act, each removing into their new receptacle more and more of the barrel's content, yet never draining it dry—for here, in Section 44 of the Naval Discipline Act, which is in force today, is that phrase referring back through the Rules of Oleron to Roman, Rhodian and Phoenician law: Any person subject to this Act committing any offence shall, save where this Act expressly otherwise provides, be proceeded against and punished according to the laws and customs in such cases used at sea". The Select Committee recommended, and the Government agreed, that as the Bill lays down for the first time by Statute the punishments for all offences which sailors may commit, the time had now come to remove that sentence. So Section 44 of the 1866 Act is not repeated in the Bill, and the direct link between the Naval Discipline Act and the Rules of Oleron is to be broken.

But there still remains an indirect link. The Preamble to the Bill refers to Her Majesty's Navy whereon, under the good providence of God, the wealth, safety and strength of the Kingdom so much depend. These are almost the exact words, adapted slightly in order not to give too much offence to the Army and Air Force, used in the Articles of War of 1661, which leant so firmly on the Rules of Oleron.

I feel much honoured that the first Bill I should present to Parliament should come of so famous a line of Acts which have had, through their rules of conduct for our sailors, so great an impact 452 on our history. In the belief that this one will fill the needs of a modern Service, I commend it to the House.

§ Mr. Thomas Steele (Dunbartonshire, West)

I am indeed happy to say that on this occasion I find myself in complete agreement with most of what the Parliamentary Secretary has had to say in moving the Second Reading of the Bill. First, I should like to join with him in expressing the gratitude of hon. Members on this side of the House for the good work done by the Select Committee and the Departmental Committee. It must be a source of great satisfaction to the Committees to see, at long last, the results of their labours.

In view of the Select Committee's work and its published Report, and because the Bill follows, in considerable degree, the Army and Air Force Acts, it was not to be expected—and we did not expect—that the Minister should go into a lengthy description of the Bill. I picked out some points for mention but, unfortunately, the Minister has had the same idea and he has already mentioned most of them. I agree with him that one of the important changes is that which is associated with the death penalty. Like the other two Acts, the Bill eliminates the death penalty in the case of many offences, and it is now limited to the graver and more aggravated forms of mutiny associated with the enemy.

One could say that these are welcome changes in view of the number of offences in which the death penalty could have been imposed. When I read the long list of those offences laid down in the old Acts I was rather horrified. It says a great deal for the discipline and the high code of honour of the Service that, as the Report points out, there has been only one execution under naval law in the last one hundred years.

The Parliamentary Secretary ended his speech by discussing the Preamble, which 453 I read with some interest. The other two Acts have no Preamble of this kind, and as far as my researches go I have not been able to find another Act with such a Preamble. The Committee was divided upon this point, some Members feeling that it was quite unnecessary and others thinking that it had a use and ought to be retained because of the tradition of the Service. The Parliamentary Secretary read out the Preamble as it now is, but he did not draw sufficient attention to the change that has taken place. The words in the previous Preamble were: the wealth, safety and strength of the Kingdom chiefly depend …. Instead, it now says, "so much depend." As the hon. Gentleman said, it is some indication that the other Services are rather important. It may be that, at long last, the Admiralty accepts that and we can look forward to greater co-operation in the future between the three Services.

The hon. Gentleman did not mention one interesting matter about which the Committee suggested that the House might say something. I refer to the question of the W.R.N.S. The two other women's Services are subject to the provisions of the Army Act and the Air Force Act, but the W.R.N.S. is not subject to the provisions of the Naval Discipline Act. It is encouraging to note what the Committee had to say about that, and I think that we should agree with the Committee. The W.R.N.S. is a purely voluntary Service and I think that has some bearing on the spirit and demeanour of its members. I understand now, and appreciate more clearly why it is that the W.R.N.S. always "steals the show" when there is a parade of the Services.

I consider the Committee was rather harsh regarding the penalty for drunken-ness which is dealt with in Clause 28. It is true that, for the first time, the Bill gives a definition of drunkenness and I find it very interesting. Subsection (2) states: Every person subject to this Act who is drunk whether on duty or not … I should like the Parliamentary Secretary to examine that again, because I visualise 454 that a sailor from H.M.S. "Jupiter" might have a Saturday night off and come to Helensburgh with some colleagues and spend an evening in a public house. He may have imbibed a little more than he can properly carry, but he may walk away from the public house quite properly. He may not be doing anything which, under civil law, would require that he be taken into custody.

It may be that the sailor has a rolling gait, and that may exaggerate his appearance of insobriety. This poor, innocent sailor, if found in that condition, is liable to be imprisoned for two years. That seems to me to be rather harsh. On examining the Army Act and the Air Force Act, I find that there is a proviso relating to warrant officers, non-commissioned officers or soldiers and that the sentence may be limited, so that it does not exceed detention for six months. Perhaps between now and the Committee stage the Minister will have a look at this matter and put it right.

The Parliamentary Secretary knows that there are some points on which the members of the Committee disagreed, and naturally my hon. Friends and I wish to put down Amendments, which we hope will be discussed during the Committee stage. He mentioned one notable departure from the Report of the Committee relating to the constitution of courts-martial. I accept that the Government are taking the right course, and if any of the hon. Gentleman's hon. Friends wish to change it during the Committee stage, I can assure the hon. Gentleman that we on this side of the House will support the Government in maintaining the present provisions in the Bill.

I wish to thank the members of the Select Committee for the work they did and the Government for at last bringing forward this Measure. I join with the Parliamentary Secretary in commending the Bill to the House.