HC Deb 02 May 1957 vol 569 cc446-57

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

Vice-Admiral Hughes Hallett

Clause 54, which deals with the constitution of courts-martial, makes the greatest single change in the laws and customs of the Navy embodied in the present Bill. Also, it is the only Clause which differs very materially from the Clauses recommended by the Select Committee. I am bound to say that I am still not entirely happy about the Clause in the form in which it has appeared in the Bill.

I would remind the Committee that naval courts-martial are not quite the same as courts-martial in the Army and the Air Force. In the first place, they are very much more uncommon, and, in the second place, owing to the seniority of the members who constitute the courts, they have always been held in the very greatest respect. Indeed, a certain awe has surrounded them. I suggest that the reason for the great respect in which they have been held is largely the fact that they are composed of officers who are not nominated and who are officers of considerable experience and responsibility.

The present method by which a naval court-martial is set up, as hon. Members will know, is that the convening authority nominates the president only and the remaining officers—at least in theory—are the requisite number of officers on the General List immediately below him in seniority. In modern times, the custom has arisen of allowing the senior officer present, the commander-in-chief, admiral, or whoever he may be, to make a court-martial signal and do a little naming of officers. When the court has assembled, at an early stage it is explained that those officers not called who would have been called on seniority grounds are absent on duty. It is always open to the defence to challenge that if it is felt that there is a deliberate omission of officers entitled to be called.

In spite of that, under the present system one invariably finds that the members of the court are officers of considerable seniority. One finds one or two captains. The president must be a captain, and there may be one other captain as well as him. Under the seniority rule, one usually finds that the commanders are officers over the zone for promotion. They have a distinctly independent outlook.

One of the changes in the Bill is that the court will no longer be confined to executive officers. In its present form, the Bill goes a great deal beyond what was recommended by the Pilcher Committee, which recommended that for some years to come the majority should be executive officers. The reason why the court is composed of executive officers at the moment is partly that by the nature of their training and past experience, they have had a great deal to do with summary jurisdiction, and partly because in a certain class of case connected with hazarding and stranding of ships the question of negligence in respect of a highly technical matter arises, and they are officers who would be qualified to deal with it.

Be that as it may, the new Bill gives practically unfettered choice to the convening authority as to whom he should call to the court. That choice is fettered to a slight extent by Clause 54 in respect of the seniority of the members in relation to the seniority of the accused, and there is also provision that all the officers must not come from the same ship or establishment. I think that the Committee ought to consider whether the existing rules provide sufficient safeguard against having insufficiently senior officers on the court.

Here, I think the Navy is in a different position from the other two Services because I believe that with the best will in the world, a junior officer would find it very difficulty to disagree with the captain of his own ship, if that captain were the president of the court. It may be wrong that that is so, but I am sure that it is so in practice. I am well aware that the vote is taken from the junior officer first, but, as anyone who has sat as a member of a court—as I have—knows, the question is fully discussed, and no one is in the slightest doubt about the view of the president before the vote is taken.

We also wish to guard against having too many officers from the same ship. It seems to be stretching the provision rather far, if the situation can be avoided, to have all the officers except one from the same ship or establishment which, incidentally, so far as I understand the Bill, can be the ship or establishment of the accused. Similarly, all the officers except one might come from the staff of the officer convening the court, which again would be highly undesirable. There is the final risk, now that specialist officers are eligible, of having officers insufficiently experienced to deal with the type of issues likely to come before the court.

7.30 p.m.

I am familiar, Sir Charles, with the argument sometimes advanced that the members of a court-martial are no different from members of a jury, but I do not accept that argument. They decide the sentence, which a jury does not, and one usually finds that the officiating judge advocate, the prosecuting officer, and the prisoner's friend, know very little more, and often a great deal less, about the law or circumstances of the case than do the members of a court themselves. Those are some of the reasons why the consideration of a case by members of a court-martial cannot, with the best will in the world, be wholly objective, and, in turn, those are reasons why it is important that the members should be men of great experience and great independence of judgment.

I entirely understand the reluctance of the Government and of the Admiralty to accept the Clause originally drafted by the Select Committee. I quite understand that they thought that it was too inflexible, and might sometimes make the holding of a court-martial—or the convening of a court-martial—too difficult. In passing, I must say that I do not think it a bad thing that it should be rather difficult to convene a court-martial because, in the Navy, where commanding officers have considerable summary powers, I think the fewer courts-martial that are held the better.

I should like my hon. Friend to give the Committee an assurance that when the Bill becomes law the section of the Queen's Regulations which contains the instructions to flag officers will include some very clearly worded guidance to them on how they are to exercise their functions as convening authorities. In particular, I should like to see the following points stressed. First, I should like it stressed that the flag officer who orders the court-martial has a personal responsibility for the nomination of the members, and must on no account delegate that duty to some junior officer—and, least of all, to the officer who is to be president of the court.

I may have a suspicious mind, but I have a slight fear that there may be long exchanges of coded signals if the ship in which the case is to be tried happens to be remote from the flag officer convening the court-martial. I have an uneasy feeling that in such a case the flag officer may make a signal to ask the captain of the ship to suggest the court, and will then signal back in plain language naming those officers. I think that the regulations should specifically forbid that.

Secondly, I should like to see an instruction, on fairly general lines, to the effect that the officers selected are to be those who, by virtue of their seniority and qualifications, are most likely to reach a just and independent conclusion on the issues on trial. If something like that was to appear in the regulations, and there was set up a court which was demonstrably badly constituted, I imagine that it would be possible on a point of law to challenge before the court of appeal the way in which the court had been formed.

Finally, I think that there should be a definite warning in the regulations against the nomination of junior officers merely to give them experience of courts-martial and court-martial work. The proper way for a junior officer to learn about courts-martial is to attend as a spectator. I think that it would be most improper to make young officers members of courts-martial just for them to gain experience of what goes on.

I must apologise for detaining the Committee for so long, but I do feel that this Clause is perhaps the most important one in the new Bill.

Mr. Arthur Moyle (Oldbury and Halesowen)

Ina debate which we had a few years ago, when we were asking the Government to introduce this Bill, I had the temerity to speak on the subject of courts-martial, and I expressed some views upon the need to reorganise naval courts-martial. I have listened to the hon. and gallant Member for Croydon, North-East (Vice-Admiral Hughes Hallett), whose experience, of course, is much greater than mine, and, if I may say so, I thought that there was much sense in what he said. I could not, however, go the whole way with him.

As I understand, what we want in a court-martial is a body of people who are possessed of a measure of judgment. That does not always come from experience. I have yet to find in any walk of life that a man's judgment corresponds with his rank. I have never found it work out quite in that way; that is the higher up one goes the sounder the judgment. When serving on a jury or in other walks of life, one has to make a judgment upon certain issues, and it seems to me that the more ordinary a man's judgment is, the more sensible it becomes. For that reason, I cannot share the hon. and gallant Gentleman's views about the need for retaining the practice of selecting the personnel from what he described as the executive officers—

Vice-Admiral Hughes Hallett

If the hon. Gentleman will allow me, I did not advocate that for a moment. He must have misunderstood me. I was pressing that those officers selected should be of sufficient seniority and knowledge to be independent in their judgment.

Mr. Moyle

I was coming to that, and I do not think that I misunderstood the hon. and gallant Gentleman. It seems to me that in this set-up the only person in a court-martial who is likely to be independent is the president himself—and, of course, the prisoner. All the rest are subordinate. Whatever rank they hold—

Mr. George Wigg (Dudley)

Will my hon. Friend be good enough to tell me by what process of logic he arrives at the idea that the prisoner is independent?

Mr. Moyle

Well, he is entitled to say what he likes in his own defence.

The strong point made by the hon. and gallant Gentleman was this need for independence and for an independent judgment. I may be wrong, but I think that the only officer in the set-up who will have, at any rate, independence, if not judgment, is the president of the court-martial. I think, too, that it is an excellent departure from the existing regulation to recruit courts-martial personnel from outside the ship concerned. That will bring in an outside view on what may be essentially a domestic matter confined to that ship.

I had hoped that the Government would have gone a little further and would have broadened the basis of the experience and, indeed, of the judgment available to them. Why not bring in the petty officer? Why not bring in the rating? The judgment of such men is as good as anybody else's. They have had a measure of experience of life in the Navy which is peculiar to them, and they would have a contribution to make, in terms of judgment, as good as that of any officer. They would bring their experience to bear, particularly if the charge was against a petty officer or rating. They would contribute a very valuable experience and a measure of understanding peculiar to them by the very nature of their rank.

The only qualification that is wanted in this matter is an independent judgment. That is the main factor. I can appreciate the point about the junior officer, but not all officers, however subordinate, necessarily follow the judgment of their superior officers, the president or the executive officer. He will be as likely to bring in as much independent judgment as his own peer or his superior officer. It does not always follow that being in a subordinate rank means subordinating one's judgment to someone's superior.

I have heard it said that the main argument against the recruitment of personnel for a court-martial from the lower deck is that whatever view he took, or whatever decision he came to in common with the rest of those on the court-martial, he would be subject to severe criticism and possibly "sent to Coventry" by his mates. Why should that assessment be made with regard to any petty officer or any rating? We are living in the twentieth century, not in the sixteenth century, and there has been a measure of general secondary education for many years now. I cannot understand why the Navy does not break a lance with the future and secure a more broadly-based court-martial than even that provided for in the Bill.

I regret that we have not sought the occasion of this Bill to democratise the whole basis of selection for the courts-martial, because it is entirely confined to judging the facts submitted in evidence.

The question of law is not a matter for any of the personnel of the court. It has not to decide on question of law or procedure or on the admissibility of evidence other than the experts. That is the responsibility of the judge-advocate and the clerk of the court.

Therefore, the personnel of a court-martial is in precisely the same category as that of a jury made up of ordinary citizens in our highest courts. I am disappointed that we have not been able to make greater headway in securing democratisation in this matter of the set up of courts-martial in the Navy.

7.45 p.m.

Mr. Wigg

I am loath to disagree with my hon. Friend the Member for Oldbury and Halesowen (Mr. Moyle), but I am afraid that I cannot agree with him that a court-martial in any of the Services is discharging a function similar to that of a jury.

Mr. Moyle

I did not say that. What I meant to imply was that if, for example, a jury drawn from ordinary citizens could determine the fact of whether a person was guilty or not, I should have thought that that was a valid argument for broadening the basis of courts-martial in the Army or the Navy.

Mr. Wigg

I am sorry if I misunderstood or misquoted what my hon. Friend had to say, but I do not think that his intervention affects the point which I want to put to the Committee.

A court-martial in any of the three Services is doing something more than deciding the guilt of the prisoner. It is an instrument of discipline. One has always to remember that the accused is a member of an armed force which exists to fight. Those who sit as members of the court-martial must have independence of judgment not only in order to decide on the facts the guilt or non-guilt of the accused, but also to have regard to the good of the Service of which they are members.

I should have thought that the hon. and gallant Member for Croydon, North-East (Vice-Admiral Hughes Hallett) was absolutely right in striving—I think he did strive very hard—to secure the absolute independence of the members of the court, not only in the interest of the accused but in the interest and well-being of the Service itself.

I am in entire agreement with my hon. Friend the Member for Oldbury and Halesowen in what he said about democratisation. Certainly, so far as the Army was concerned, I did my best to democratise it. But I am not going to be sloppy about this matter. I think that if we want independence we have to be very careful about what are called in the Army "other ranks" being included in the composition of a court-martial. The hon. and gallant Member for Croydon, North-East has mentioned that the opinions of the president of the court get known before the vote is taken. What would be the position of the poor A.B. faced with an officer of senior rank who might hold opposing views? It would require a man of great moral courage to differ from him. What would surprise me in that context would be how it came about that such an outstanding person could still be holding such a lowly rank.

Mr. Moyle

The argument which my hon. Friend is now using is precisely the argument that was used to retain the executive officers for the personnel of courts-martial.

Mr. Wigg

I may be hopelessly reactionary about it but I am not sure about the admission of specialist officers. Specialist officers tend to become "clever devils," people who know a great deal about very little. I can only speak from Army experience, but I am not altogether persuaded about the advisability of members of courts-martial being officers, however senior, of very specialised experience.

I think that there is a great need for breadth of understanding of Service problems and certainly for independence. It may be that the hon. and gallant Member for Croydon, North-East and myself share the same reactionary instincts on this matter. At least, I claim for myself that I am concerned with two points. I am certainly concerned with the wellbeing of the accused but I am also concerned with the well-being of the Service. The test of a good regiment is not what happens on courts-martial, but the number of courts-martial that it does not have.

I have a feeling that my hon. Friend the Member for Oldbury and Halesowen is not as reactionary as myself. He is a progressive, but I have a shrewd idea that if I were charged with an offence before a court-martial I would sooner be tried by a court composed of those people drawn from the experience which the hon. and gallant Member for Croydon, North-East has in mind than of those whom my hon. Friend the Member for Oldbury and Halesowen has in mind. Needless to say, if I were charged before any court-martial I should not be guilty. Therefore, I have a predisposition for those with breadth of vision, and I should feel more confident if I were absolutely sure that the verdict of "not guilty" would be given irrespective of any questions of promotion or of the next grant of leave or of the next grant of privilege.

I think that my hon. Friend the Member for Oldbury and Halesowen should keep pegging away at this. He has an absolute right to do so, but I think that he should keep it until the next time the Naval Discipline Act is reviewed, because I am quite sure he will still be a Member of this House. I feel, however, that in this matter he will be well-advised in the interest of those whom he is so ably seeking to serve to walk rather slowly.

Sir P. Spens

I want to say a few words on this matter. I am glad that the Admiralty has worded the Clause as it has done, although it is contrary to what we in the Select Committee recommended. It may be of interest to know that this is the only Clause, in all the three Bills with which we dealt, in respect of which a majority of the Committee, under the influence of the great eloquence and experience of my hon. and gallant Friend the Member for Croydon, North-East (Vice-Admiral Hughes Hallett) took a view contrary to that which the Chairman recommended.

I am bound to say that, once the General List of the Navy has been introduced, I find it very difficult to see how the composition of courts-martial can be limited to certain members of that General List. That seems to me to be creating a class of officers who ought no longer to be allowed to be regarded as a special class of their own. In one sense there is a danger in expanding, as broadly as the Admiralty has, the list from which officers can be selected, but if hon. Members will realise the way in which the Admiralty commits itself in the selection of officers for courts-martial in the immediate future, I do not think that they will find any cause for real anxiety.

Some hon. Members rightly say that it might be that in certain cases only non-executive officers would be the right persons to serve, and in a highly technical service of specialists I can understand that an officer on the executive list would find himself—as I should in certain spheres—completely ignorant of the issue that had to be tried. It therefore seems to me to be right that the field of choice should be made as broad as possible.

Then comes the question of the responsibility of making the selection. That must be left to the Admiralty. The Admiralty has more or less committed itself to saying that it will issue instructions how officers shall be chosen for courts-martial. Unless we can trust our Board of Admiralty the whole matter is hopeless and it does not matter what we put into a Bill or an Act of Parliament. I am certain from the evidence given and the Memorandum supplied to us that the Admiralty is aware of the requirements, and I think that we can safely accept the Clause as it stands.

Mr. T. G. D. Galbraith

I think that my right hon. and learned Friend the Member for Kensington, South (Sir P. Spens) put his finger on the heart of the matter when he said that, in the end, we have to trust the Board of Admiralty to send out the correct instructions. Nevertheless, I do not think that the Committee can help feeling impressed by anyone with the experience of my hon. and gallant Friend the Member for Croydon, North-East (Vice-Admiral Hughes Hallett). I think that his fears are exaggerated. however, and that the width of choice available to the Admiralty will strengthen rather than weaken the composition of courts-martial.

The suggestion made by the hon. Member for Oldbury and Halesowen (Mr. Moyle) was very interesting, but it has already been considered and turned down by the Pilcher Committee. It may be that the advice of the hon. Member for Dudley (Mr. Wigg) is the best advice that I can give the hon. Member for Oldbury and Halesowen.

I undertake to consider the three points made by my hon. and gallant Friend, and to have drafted a suitably amended section of the Queen's Regulations and Admiralty Instructions. I cannot say that it will be exactly along the lines he suggested, but something along those lines will be incorporated in Admiralty Instructions.

Mr. Moyle

Will the Civil Lord bear in mind the basis of the point made by the right hon. and learned Member for Kensington, South (Sir P. Spens) concerning the selection being governed by the type of case to be considered? Would it not be a good thing in certain cases, where petty officers or ratings are involved, to select members of courts-martial upon a broader basis?

Mr. Galbraith

The suggestion that ratings should serve on courts-martial was examined and turned down by the Pilcher Committee, and we do not intend going back upon that, but we certainly intend to issue Queen's Regulations and Admiralty instructions to convening authorities in order that they may nominate officers particularly suitable to try particular types of case.

Mr. W. Wells

I was one of the members of the Select Committee who was impressed and convinced by the eloquence, force and experience with which the hon. and gallant Member for Croydon, North-East (Vice-Admiral Hughes Hallett) argued his point. I believe that the true answer to this question is that at which the Government and the Admiralty have now arrived. There is a proper sphere for legislation and a proper sphere for administration, and we may go very wrong if we allow one to overlap the other.

We probably all welcome the creation of the new General List and the assimilation of one kind of officer with another; the breaking down of what we outside—in my case speaking as an ex-Army officer —may regard as the rather exclusive caste spirit within certain types of rank. We welcome what the Admiralty is doing in this direction. It would be a step backwards to preserve the Clause in the shape in which it left the Select Committee, but I hope that the Government and the Admiralty will consider very carefully the various points raised, including those raised by my hon. Friend the Member for Oldbury and Halesowen (Mr. Moyle), when they draft the appropriate instructions giving effect to the Clause.

Question put and agreed to.

Clause ordered to stand part of the Bill.

Clauses 55 to 57 ordered to stand part of the Bill.