HC Deb 02 May 1957 vol 569 cc405-18

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

Commander J. W. Maitland (Horn-castle)

The earlier part of the Bill deals with action conditions. Unlike the wording in other Service Acts, Part I is called "Articles of War". The first Clauses deal with what may happen under battle conditions. I want to draw attention to the inclusion of one word in Clause 3. It has been put in and makes it different from the original Clause 5 which it seeks to replace. That word is the simple word, "lawful". The Clause says that men must obey the lawful orders of their superior officer in action. At first sight, it seems ludicrous to suggest that "lawful" should be left out, but it was left out of the previous Act, and it was left out for a very good reason. It was left out because in action it is very difficult sometimes to decide what is a lawful action and what is not.

Mr. William Wells (Walsall, North)

Will the hon. and gallant Gentleman give his authority for the statement that that was the intention in the omission of the word "lawful"? As I understand the law relating to this subject, it was always implied that lawful orders and only lawful orders should be obeyed.

Commander Maitland

That may be so, but, as I am sure the hon. and learned Member will discover, although the Act at present in force omits the word "lawful" in that Section, it uses it in another part—what one might call the routine part—of the Act, for example, in Section 17. I had no right to say that this was the definite reason for its omission here, and I apologise for saying that, but it is my inference that it was the reason for its omission.

We find in the Articles of War, in the Act under which we are at present working, that in Section 17, dealing with insubordination. a man must obey the lawful orders of his superior. The reason why I want to draw attention to this matter is because of what happened at the Nuremberg trials. I say straight away that I have always felt, and felt at the time, that the Nuremberg trials were not a wise thing. It was an unwise act, and the defence of subordinate officers very often was that they obeyed orders. I still maintain that that was a proper defence. It was not held to be a proper defence, however, and people were executed in various parts of Europe.

5.15 p.m.

I am all in favour of politicians and people who start wars being hanged or shot—and I can say that now as a politician—but I am not in favour of serving officers who do their duty as they think they should in time of war being executed afterwards for what they have done. In stress of battle, to which the Clause refers, things take on a very different form as in ordinary times of peace.

When putting in the word "lawful" in the Clause, we deliberately place upon the shoulders of the men who receive the orders the responsibility of knowing whether they are lawful. In other words, if a man obeys an order which is unlawful he will be committing a crime. In action it is sometimes very difficult, particularly, perhaps, in a naval action, to know whether an act is lawful. It may be that the only way to save a ship with 500 men aboard is to shore up a bulkhead after the ship has been torpedoed, but it may be that in doing so men who have been burned and who are dying, who might otherwise be saved if the bulkhead were kept open, would be deliberately condemned to a terrible death, although by condemning the lives of, say, those 15 people 500 others might be saved.

In time of war it has always been a very present help in trouble to know that if one obeyed orders one could do no wrong and that when a man was frightened and did not quite know what to do he would be all right as long as he did what he was told. Now that shield is being taken away. If a quite junior officer has to close up a bulkhead such as I have described, how is he to have the knowledge of whether the part he has taken in condemning people to death was in response to a lawful order? This raises considerable issues.

I realise that since the time of the Nuremberg trials other nations have taken the same line. I read in The Timesthe other day that when the German Army was reconstituted a clause was included to the effect that those serving in it must obey only lawful orders.

I do not see what we can do about this. I do not think we can alter it, but I believe that it is a great mistake. It opens the opportunity to a Power which wins a great war to take a horrible revenge on the men who are fighting on the other side, and I do not think that is right. I believe that when the futility, the madness and the unlawfulness of war in itself is over, the sooner one forgives and forgets the better. That is why I raise this point, which I believe to be a serious one, and because we are now putting into legislation something which will have a considerable effect on the way in which orders in action are considered in the Navy.

Mr. Sydney Silverman (Nelson and Colne)

Nothing is more remarkable in the procedure of our House of Commons than the way in which quite unexpectedly one stumbles across the discussion of great fundamental principles in a context where one would hardly in advance have expected them. Here we are at the Committee stage of a reformed Naval Discipline Bill. One could hardly have imagined a less controversial occasion or one in which ultimate principles of human conduct would be less relevant. That, however, is one of the surprises of our system and is probably one of its great merits.

In the debate on this one word "lawful," which is introduced into the Clause in a context where previously it was not included, the hon. and gallant Member for Horncastle (Commander Maitland) has raised, as he clearly understood, a matter of fundamental principle. For my part, I rejoice that the word is there. I hope it will be kept there. I say that not because I think that we are advocating any change in the law. I will return to this point later.

Let me say at once—I say it with all diffidence, because the hon. and gallant Member knows about these matters and I do not—that I find myself considerably at issue with him in his view that it has ever been a defence in the law of our country for a man charged with doing an unlawful act to say that he did it in obedience to a superior officer. I quite recognise that that has been a principle of the military law of some other countries, and it has led them into disastrous consequences, some of which the hon. and gallant Member mentioned, but I would be surprised to learn that it had ever been a principle of law. By putting in the word "lawful" now, it does not seem to me that we are making any change in the law or altering anybody's obligations before it.

The hon. and gallant Member referred to Nuremberg and expressed his view about it. I am not at all sure that that has anything whatever to do with what we are discussing. What we are discussing are the liabilities and obligations of our citizens before our courts.

Commander Maitland

If the hon. Member reads the Report of the Select Committee, he will see that it was admitted that it was because of the idea of Nuremberg that "lawful" was deliberately inserted in the Clause.

Mr. Silverman

This is one of the things about which I think I may say without lack of modesty that I know perhaps a little more than the hon. and gallant Member. I know what was said at Nuremberg. I was there and listened to a great deal of the trials. Since the hon. Member has mentioned it, I shall have a word to say about it presently. What I am saying is that, although the hon. and gallant Member has raised a point about it on which I want to make a comment, I am not quite sure that the word "lawful", although it has some relevance, I have no doubt, is the main purpose to be achieved in the Clause.

The Clause deals with the responsibilities of British citizens before British courts. If it has a bearing upon the exercise of power by victorious nations in international tribunals, that is an indirect result and not a direct result. What we are dealing with here is the responsibilities before our law of our citizens.

Let me say a word about the Nuremberg trials. I have a great deal of sympathy with the view that no principle in which we believe is greatly assisted by the mere exercise of power by a nation because it happens to have won a war against people who happen to have lost it. There is no greater merit in our exercise of mere power of that kind than there would have been if the other side had won and had exercised that kind of power against our citizens.

The hon. and gallant Member, however overlooks the fact that that is only a small part of the story. What he says about people doing things in the heat of battle that they might not have done in other circumstances is very true. What he says about people faced with a difficult and critical decision on which many lives may depend being immune in the minds of most people from criminal consequences if at that moment they happen to make the wrong decision instead of the right one also is very true. A large part of the matters litigated at Nuremberg had nothing whatever to do with the heat of battle. They were things done deliberately, for political reasons, in the coldest of cold blood.

No battle was going on when 6 million Jews were collected in cattle trucks from all over Europe and taken to concentration camps and there massacred in cold blood. This was not a difficult decision that somebody had to make, considering whether to sacrifice a few lives in order to save a great many more. This was not a difficult decision that a commander-in-chief or commander at sea could make as to how best, in a critical situation, he could discharge his professional and patriotic obligations. It was nothing of the kind.

This was a cold-blooded conspiracy, without reason, without cause and without necessity, and for my part I think it was a good thing that we should seek to establish, even though we had to do it as victors in a war, that there is a common conscience of mankind in these matters, that there is a common law of humanity and that whether there was any Act or legislative process on the Statute Book, no man, in the twentieth century, was entitled to say, "I did not know that Auschwitz was wrong and I did what I did at Auschwitz because somebody higher up in the military heirarchy or in the political heirarchy told me to do it."

There are times when a man is bound to stand on his own feet and is bound to say, "This thing is so obviously and plainly wrong that I will not do it, whatever the consequences." If he is not prepared to do that, he is not to complain afterwards if he is held criminally responsible for what were clearly criminal acts. That is all I want to say about the Nuremberg aspect.

I should like to say one word about the domestic aspect. I think it would be very wrong if we changed what has been the basis of our law in these matters for many centuries. The matters that the hon. and gallant Member pleaded against the notion that the word "lawful" should be in the Clause are certainly relevant matters, but to what are they relevant? They are not relevant to the question of whether an offence has been committed. They are not relevant to the question of whether what was done was lawful or was a breach of law. They are relevant, and very relevant, on questions of penalty.

One may well excuse a man for breaking the law when the circumstances were such that it was a difficult decision and one feels that in mercy and in justice he ought to be relieved of the consequences. We can all see that and appreciate it. I am 100 per cent. with the hon. and gallant Member in what he said about that. That, however, is no reason for blinding one's eyes to the plain facts of the situation and the rights and wrongs of it.

I hope there will come a time when no nation will be content to have it as part of its law that a man is entitled to say, "What I did was wrong, what I did was unlawful, I knew it was wrong and unlawful, but I am entitled to escape all the consequences because somebody came and ordered me to do it." That has never been the British way, and I hope it never will be, and I feel sure that the hon. and gallant Member himself, on consideration, will feel that his objection to the word "lawful" in the Clause was misconceived.

Vice-Admiral Hughes Hallett

The first of the two points raised by the hon. Member for Nelson and Colne (Mr. S. Silverman) was whether we are, in fact, changing the law. The answer to that is a little doubtful. It has always been the general rule in the Navy, through the Naval Discipline Act, that people are required to obey only lawful orders. The Clause, however, derives from Section 5 of the existing Act, which is now being replaced, which refers to the conduct of people in action and which specifically omitted the word "lawful" and, therefore, gave the impression, whether rightly or wrongly, that it would not be a defence for a person to say that an order was unlawful.

5.30 p.m.

I do not support my hon. and gallant Friend the Member for Horncastle (Commander Maitland), who has raised this matter, because actually I must confess to some responsibility in regard to it. It was I who, in the original proceedings of the Select Committee, drew attention to the omission of the word "unlawful" in the Admiralty draft and suggested that it should be included. I am sure that it is right to include it. I agree with everything that the hon. Member for Nelson and Colne said with regard to the assessment of penalties in extenuating circumstances. That is undoubtedly correct. On the other hand, I dissent from him in his suggestion that there is no connection between this matter and the Nuremburg proceedings.

Mr. S. Silverman

Indirectly.

Vice-Admiral Hughes Hallett

I submit that there is more than an indirect connection; I think there is a direct connection.

The objection to the Act as it is now is that a junior officer who has an order to carry out something which is plainly against the rules of war is in the rather embarrassing situation that if he disobeys the order he is liable to the gravest penalties from his own side, and if he obeys the order and commits something which is recognised as an international crime he is liable at the conclusion of hostilities to penalties of an equally unpleasant nature. I feel, therefore, that the Bill in its present form is correct and that the word "unlawful should remain in the Clause.

Mr. R. T. Paget (Northampton)

I have very great sympathy with the hon. and gallant Member for Horncastle (Commander Maitland), who has raised this matter, because, like him, I have the strongest possible feelings with regard to Nuremburg. I believe that the Nuremburg trials were a tremendous offence against justice. I do not for one moment dissent from what my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) said as to the iniquity and the horror of Jewish liquidation. We all assent to that. I do, however, respectfully say that in the sense in which we are using the word "law" here that was not unlawful.

The law in this sense is the command of the Sovereign. It is neither more nor less than the command of the Sovereign. Domestically, here in England, the Sovereign is the Queen in Parliament which expresses the command of the Sovereign in Acts of Parliament. Outside our frontiers, the Sovereign is the Queen in Council who issues orders in war time through the Cabinet and the High Command. In totalitarian countries, the law is the order and the will of the dictator.

To use the law to punish that which is not unlawful is an offence against the law and an offence against justice. That is my case, and always has been my case against Nuremburg. In the light of the horror of the things which the Germans had done, I believed that we were fully entitled to take vengeance as an executive action. We had no right to do it as a matter of law, because we had to invent a bogus law ex post factoand make it a condition of that law, an aspect and a fact of the crime, that the person accused was a citizen of a defeated country.

Mr. S. Silverman

Surely this is an unnecessarily narrow and unjustified restriction of the meaning of the word "law", at any rate so far as English law is concerned. There is very much in our common law that has never been the law of any Sovereign. A great part of our criminal law rests on no Statute of this House and no edict of Parliament. It is common law—common law crimes. All that meant was that the crimes were so obviously and positively wrong that everybody knew them to be wrong and that they ought to be punished. I say that what happened in Auschwitz and other centres was contrary to what one might call, by extension of the argument, the common law of mankind.

Mr. Paget

My hon. Friend has advanced the arguments advanced by Lord Coke in the sixteenth century, which have been rejected for at least 300 years. We certainly have a common law here, According to Lord Coke, Parliament had no authority to alter the common law because it was fundamental. We established 300 years ago that the common law was there because the Sovereign permitted it. The Sovereign can alter the common law, as we frequently do by our Acts, whenever he so chooses.

Mr. S. Silverman

That is not quite what my hon. and learned Friend said before. No one today, whatever Lord Coke may have thought 300 years ago, denies the right of Parliament, that is to say, of the Sovereign, to amend common law. What he was saying before was that there was no law without the command of the Sovereign. He now says that our common law remains law because it is permitted by the Sovereign. That is a very different story.

Mr. Paget

I feel that there is not very much distinction in that. Communities form together, communities make rules, communities create Sovereigns. The law then becomes the will of the Sovereign.

That is what the law is. As I understand the law here, this is the law of this country, for international law is not something to which any individual is subject. International law is a compact between princes and between Sovereigns. It is binding as between Sovereigns, but it is no concern of individuals saving in so far as in particular instances Sovereigns command their citizens to observe individually a particular international law. That is the position here.

That is where one has the confusion, because here, where it is said that it is a lawful order, that is an order lawful by our law. I have particularly in mind what I regard as one of the worst of the war crime trials. That was the trial of a submarine commander and an ordinary seaman—on his first voyage—for firing on survivors somewhere south of the Cape. That submarine commander had orders that the success of his mission and that of another submarine which was operating with him depended entirely upon our being unaware that there was submarine activity in the Indian Ocean. He therefore had specific orders, which he queried and had confirmed by the German Admiralty, that he was not to leave survivors.

That is a very grim order to receive, hut, in my submission. if it were given to a British submarine commander in time of war it would be a lawful order within the meaning of the Clause, because outside the jurisdiction of this country the law is the command of the Queen in Council. That is delivered in wartime by the Supreme Command and, just as Somerville's orders to sink, at Oran, the fleet of a nation with whom we were not at war, in flagrant breach of international law, was none the less a lawful order because it came from the Sovereign, so would that submarine commander's order have been lawful.

But what does one say, not of the submarine commander but of the ordinary seaman, aged 18, standing by the gun with his captain at his elbow, who was directed when to fire and where to fire, when that ordinary seaman was sentenced to twelve years' imprisonment? I think that that was an outrage.

In a discussion of this Bill, I do not think that we need concern ourselves with those sorts of things. The word "lawful" might serve as some embarrassment if we lost another war and our commanders were tried by the enemy, but I have little doubt that any embarrassment which occurred would be overcome. War crimes trials when we were the defeated nation, just as when we were the victors, would be acts of vengeance which ignored the law—as they were at Nuremburg and elsewhere.

Let it go out from Parliament, however, and let the sailors know, that outside the jurisdiction of this island the law is the command of the Queen in Council, and that that command is expressed through the High Command—the Commission of the Admiralty.

Sir P. Spens

I want to add only a very few words to the extremely interesting discussion which has arisen out of what my hon. and gallant Friend the Member for Horncastle (Commander Maitland) has said. It is extremely interesting to discuss what is meant by "law" in its various phases. Here, I agree that we are dealing with our own domestic law. The simple question is whether or not it would be possible for anybody to plead, as a defence, merely that he had been ordered to do something. It has never been a defence in this country to plead orders by a superior in cases where one is accused of a crime.

As the hon. and learned Member for Northampton (Mr. Paget) will remember, this discussion first arose some years ago, when we were dealing with the Army Act. The question then was whether, throughout that Act and the Air Force Act, we should insert the word "lawful" before the word "orders" where it had not been inserted before. It is quite true that we decided to insert the word because of what had happened at Nuremburg. We thought it possible that someone would say that the law in this country was the same as the law in some others, and that if a person were ordered by a superior officer to commit a crime that would be a defence, whether or not the person given the order knew that it was a crime.

It was really in order to bring this Clause in the Naval Discipline Bill into conformity with similar Sections in the Army and Air Force Acts that the Committee decided to insert the word "lawful" against the protests of my hon. and gallant Friend and one or two other members of the Committee. I felt that in its working the Bill should be as close to the new Army and Air Force Acts as was possible, and I think that it is almost more important than the word "lawful" should be put in in the Naval Discipline Act than in the others.

The Clause creates a very serious offence, for which, under certain circumstances, the penalty may be death. Added to that, strong disciplinary powers are given to Her Majesty's officers commanding ships, and it is very important that if a man were to say, "I did not do this because I thought that it was unlawful," there should be an express word in the Measure which would make either the commanding officer or a court martial hesitate before dealing with the matter. Although I fully appreciate the feelings of my hon. and gallant Friend and others who support him, I am absolutely certain that the word should be inserted.

5.45 p.m.

The Civil Lord of the Admiralty (Mr. T. G. D. Galbraith)

I can well understand the feelings of my hon. and gallant Friend the Member for Horncastle (Commander Maitland), who initiated this very interesting debate, which, surprisingly enough, has occurred in the middle of our discussion of this uncontroversial Bill. I think that everyone is conscious that in any Army or Navy worthy of the name a soldier or sailor must obey orders at once and without hesitation when he is given them, and it seems unfair that when he does so he may find himself liable to punishment if those orders cause him to commit a breach of the laws of war.

I would point out, however. that the introduction of the word "lawful" does not alter the law. It is the same as it was before, and although, as my hon. and gallant Friend pointed out, it was not included in this Section of the old Act, it was included in another Section. I do not think that he should draw any conclusions from that fact. It has always been recognised that certain actions are unlawful. As long ago as 1921, in the case of the "Llandovery Castle", a German court held that war criminals who attacked a hospital ship should not have done so and that it was no defence to claim that they had been under orders.

I understand that in the most recent edition of Oppenheim on International Law this is the case, and although this is a nautical subject, I think the Committee would be interested if I quoted from the British Manual of Military Law, which says: The fact that a rule of warfare has been violated in pursuance of an order of a belligerent Government or of an individual belligerent commander does not deprive the act in question of its character as a war crime, nor does it confer in principle on the perpetrator immunity from punishment by the injured belligerent. Undoubtedly a court confronted with the plea of superior orders adduced in justification of a war crime is bound to take into consideration the fact that obedience to military orders not obviously unlawful "— I think that that is the important part— is the duty of every member of the armed forces and that the latter cannot in conditions of war discipline be expected to weigh scrupulously the legal merits of the order received. That means that although the act would be unlawful the sentence would not be extreme, as it would if there had been a proper opportunity to weigh the matter. The question, however, is governed by the major principle that members of the armed forces are bound to obey lawful orders only and that they cannot therefore escape liability if, in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiments of humanity. The crux of the matter is whether they outrage the general sentiments of humanity.

Most people are quite well aware when an order is a lawful order and when it is not. I can give one example from our own history. After the Battle of Culloden, General Wolfe—who was not then a general, but a battalion commander—was riding beside the Duke of Cumberland, who saw a Highlander lying wounded and ordered Wolfe to kill him. Wolfe replied, "My commission is at your Royal Highness's service, but I refuse to carry out the order." My hon. and gallant Friend the Member for Horn-castle would probably have acted in exactly the same way as Wolfe. I am sure that that is the spirit which we want.

Commander Maitland

I ought to point out that, being of Scottish descent, I should have been on the other side.

Mr. Galbraith

Perhaps that is an unfortunate example. As my right hon. and learned Friend the Member for Kensington, South (Sir P. Spens) has said, some protection is required in the case of junior officers who are given orders by theft superior officers, so that if they refuse to do something which they think unlawful they may claim the protection of the Clause. It is for that reason that the Government feel that the word "lawful" should remain, and I hope that the Committee will agree to the Clause as it is.

Mr. W. Wells

This has been a very wide-ranging debate, and I am glad that the Civil Lord has replied to it in the way that he has. My hon. and learned Friend the Member for Northampton (Mr. Paget) begged a number of rather difficult questions in approaching the matter as he did. I do not feel called upon to enter into a controversy upon that aspect of the matter now, and I would simply refer the Committee to the words of the Clause, which are as follows: Every person subject to this Act who, not being in command of any of Her Majesty's ships, vessels, aircraft or naval establishments, fails when ordered to prepare for action by or against the enemy, or during any such action, to use his utmost exertions to carry the lawful orders of his superior officers into execution shall be liable, if the offence is committed with intent to assist the enemy, to death or any less punishment authorised by this Act, and in any other case, to imprisonment for any term or any less punishment so authorised. The sole issue before the Committee at the moment is whether an officer or rating, charged with a crime for which he may be liable to death or to imprisonment for life for disobeying an order, has the right to argue that the order was an unlawful one.

I have no doubt that the Civil Lord is quite right when he says that the Clause introduces no alternation into our law, but that in view of what happened at Nuremberg, whether it happened rightly or not, it was most essential to insert the word in the Clause for the protection of accused persons.

Question put and agreed to.

Clause ordered to stand part of the Bill

Clauses 4 to 11 ordered to stand part of the Bill.