Clause 26.—(AMENDMENTS AS TO PERSONS QUALIFIED TO HOLD INQUIRIES.) (Hansard, 26 June 1961)

§ Mr. Wigg
I beg to move, in page 21, line 25, to leave out subsection (1).
The Clause deals with a change in the regulations which, in my judgment, needs to be considered with great care. Until recently it was the practice that courts of inquiry—the term is now obsolete—or, as they are now, boards of inquiry and regimental inquiries should be composed of officers. The Clause proposes that in future it will be possible for civilians to be included in those boards. I have no objection to civilians sitting as members of regimental inquiries. I appreciate the need for it. The Army is being civilianised, and before very long there will be about 50,000 more civilians employed in the Army than there are serving personnel. It follows that in small detachments, for example, small detachments of the R.A.O.C., it may be difficult to find within easy reach officers to serve on inquiries which, after all, may be concerned with minor matters.
When the Select Committee considered the point it thought that they might be trivial matters. One member of the Select Committee suggested that the matters concerned were equivalent to the loss of a pair of field marshal's boots 121 That might be so if the provision were confined to regimental inquiries, but boards of inquiry could deal with matters of great importance. There is a very great difference between a civilian and an officer in these matters. The officer is subject to military law. He has to accept a code which requires him to be personally responsible for the stores placed in his charge. Indeed, he can be held to account in a financial sense for any shortcomings. But the civilian is under no such restriction.
If these powers are granted, therefore, a civilian could sit on a board of inquiry deciding matters which might subsequently be the basis of disciplinary action under the Army Act—and yet the men who comprised the board of inquiry might be actuated and trained in two different ways. We must bear in mind that an officer of the rank of captain, with which these executive officers are said to equate, would have attended courses of instruction in military law. He would have been brought up to understand and to administer military procedure. For that matter, so would the civilian. But there would be a difference; the officer, by the nature of his calling and training, would be required to take responsibility, to welcome the exercise of responsibility and to understand what it involved in taking responsible decisions for which he could afterward be brought to account.
While I accept the civilianisation of the Army, the existence of small detachments and the certainty that petty matters will from time to time arise, when serving officers will not be available, and while I accept that in minor matters such as come before a regimental inquiry civilian membership must be accepted as one of the needs of the times, it ought to stop there. Membership of boards of inquiry concerned with more important matters should be restricted to those who are themselves subject to military law—in other words, to serving officers.
My Amendment is not ideal and I am not sure that it would be acceptable in this form. If the Minister will tell me that, although he cannot accept it in this form, he agrees that there is some force in my argument for restricting civilian members to regimental inquiry, 122 I shall be happy to accept such an assurance and to withdraw the Amendment.

§ Mr. Frederick Mulley (Sheffield, Park)
My hon. Friend the Member for Dudley (Mr. Wigg) has raised a very important point to which we should be given a clear answer. The matter was considered by the Select Committee, and it was understood that by administrative machinery the kind of difficulties which are envisaged would not be allowed to arise. But it raises the point of to what extent we try to provide within the Act itself for the conduct of the Army and the Air Force and to what extent we rely on the Army Council and the officers concerned.
We were never very clear about the exact functions of a board of inquiry as distinct from the much smaller regimental inquiry. While I wish to do nothing to retard the civilianisation of our forces, because it is clearly in the interests of all of us to have work done by civilians wherever possible, before we make what I think is a new departure in this way we should have a clear statement from the Under-Secretary of State about it.
My hon. and learned Friend the Member for Northampton (Mr. Paget) is not able to be present at the moment. However, if the Government are prepared to accept them, I am willing to move the subsequent Amendments standing in his name, in page 21, lines 25 and 26, and his Amendment to leave out lines 28 to 44. They are purely drafting Amendments.

§ Sir O. Prior-Palmer
We had considerable discussion in the Select Committee about this. Like the hon. Member for Dudley (Mr. Wigg), I did not like the idea of civilians serving on boards, particularly boards at a higher level than a regimental inquiry. However, if the hon. Member for Dudley reads the evidence again, he will be convinced, as we were, that today this is essential. The Army Fire Service, for example, is entirely civilianised. It can be argued that the evidence given by witnesses could be adequately assessed by serving soldiers, but because of the technical advance in the Services I am 123 not at all convinced, although I say this reluctantly, that it is not necessary for fairly high level civilians, who know their job inside and out, to be on the board to assist the president and other members of the board to assess the evidence.

§ Mr. Ramsden
The Amendment deals with a change of substance. In reply to the hon. Member for Dudley (Mr. Wigg) and other hon. Members who have drawn attention to this, I should like the opportunity of saying a few words in explanation of what the Government have in mind. Under Section 135 (2) of the Army Act, 1955, and the Air Force Act, 1955, membership of a board of inquiry is at present limited to persons subject to military or Air Force law or to the Naval Discipline Act. The purpose of subsection (1), which the hon. Member seeks to delete, is to supplement these persons with civilians in the service of the Crown, for reasons which have been touched on.
There is more civilianisation going on all the time in the Army. There are certain Army and Air Force units—for example, weekend training centres and married quarters administration units—where civilianisation has resulted in only one or two serving officers being available, the remainder of the senior staff consisting of civilians. There are occasions when boards of inquiry concern such units and have to be manned with officers from outside, as things are at present. This for obvious reasons is undesirable.
Further, there can be cases where civilians have particular qualifications which make it desirable that they be allowed to serve on boards of inquiry, as for example, where their use would relieve part of the heavy administrative burden on military officers, or where they might through specialist knowledge or knowledge of a foreign language assist the board in its work. I have not formed the impression from the speeches made this evening that the general principle of allowing civilians to sit on boards following the Report of the Select Committee is called into question. I realise that the hon. Member for Dudley, and perhaps others who share his apprehensions, feel that as drafted the Clause opens the door rather too wide.
124 However, the Government feel that it is essential to have the new power. I should like to try to persuade the hon. Member for Dudley that to some extent his apprehensions may be unjustified. First, as he knows, but I stress this, a board of inquiry is a purely domestic investigation held to assist authority, by establishing the facts of a case, to determine whether there has been negligence in complying with Service regulations or, for example, whether Service procedure and so forth should be improved. Upon the facts so discovered a decision will be made as to whether to institute judicial proceedings in a disciplinary case.
If the trial is by court martial, the court will probably never see the report or the findings of the board of inquiry. If there is a summary trial, it is true that the commanding officer may be aware of the proceedings, but judicial proceedings of this kind start from scratch and no civilian can take part in them. Civilians will have no opportunity to cause prejudice to the interests of a man who may be concerned later in a disciplinary case. The whole point of this argument is that, as soon as discipline begins to come into question, the civilian element drops out and the military element stands alone. Any action taken as the result of the holding of a board of inquiry will he initiated by a military authority who will invariably have assessed the evidence before initiating his action.
The hon. Member for Dudley said that there was a distinction between civilians and officers. He said that officers, through their training, were used to cases involving discipline and, through long habit, to a sense of responsibility. It is relevant to remind the hon. Gentleman that, even if during the proceedings of a board of inquiry it appears that some injustice may be done to a soldier or an officer, the matter can be put right at once. If the president, who must still be a military officer, begins to think at any time that things are going wrong, or that an injustice may be done to any individual, or that an invidious position may arise because an officer senior to himself is likely to be affected, he can always adjourn the board of inquiry under Rule 9 of the board of inquiry rules and report to the authority who convened the board. If this were to happen and the convening authority were 125 satisfied that there was any substance in the president's fears, he could under Rule 6 (ii, d) revoke the order convening the board and convene a fresh board suitably constituted.
My final point, which from the common sense point of view is the point in which there seems to me to be most substance, is that since a board of inquiry can be convened only by either the Army Council or by a military officer they can be relied on to use their discretion in deciding how a board shall be constituted so as to ensure that justice will be done to any individual concerned. I was satisfied during the Select Committee proceedings, and I find no reason to change my mind, that in practice this will work without injustice to anyone concerned.
However, I recognise that this is a change of substance. I recognise the strength of the feelings of the hon. Member for Dudley. Therefore, I am prepared to give him an undertaking that we will endeavour to issue administrative instructions to the effect that a board of inquiry should, if practicable, be composed of Service personnel, or at least a majority of Service personnel, particularly where it seems likely that its report or opinions on questions of fact may lead to disciplinary or financial consequences for officers or other ranks. We will certainly try to do something along those lines. I hope that that will be satisfactory to the Committee and will at any rate go some way to meet the points made by the hon. Member for Dudley.

§ Mr. Mulley
I take it that the assurance given by the Under-Secretary to my hon. Friend the Member for Dudley (Mr. Wigg) will also cover the Under-Secretary of State for Air. The two Services are equally affected by this point, so the undertaking for the Army will apply also to the Air Force. Will it be possible at a subsequent stage to consider whether something to meet my hon. Friend's point can be written into the Bill? While we have every reason to accept that the administrative arrangements will be as the Under-Secretary said, it is nonsense for there to be a Select Committee of the House of Commons, and so on, if the real substance is to be done afterwards in regulations in which the House of Commons can play no part.

§ Mr. Ramsden
On the first point, I think that I can give that assurance on behalf of my hon. Friend the Under. Secretary of State for Air. As to the second point, my undertaking was really on the lines of a recommendation to be laid down by some form of administrative instruction. I do not think that we could write this principle into the Bill. Had that been possible in any satisfactory way, I think that the Select Committee of which the hon. Member for Sheffield, Park (Mr. Mulley) and I were members, would have devised it, but I hope that in this case he will agree that an administrative instruction is the appropriate means of dealing with this point of difficulty.
Although, formally, it is possible to answer the arguments and doubts expressed by hon. Members, there is need, perhaps, in future practice to emphasise the point that is at the back of their minds, and to make sure that attention is drawn to it in the course of administration. I feel that such an instruction would go a long way to meet the point, and make sure that future practice conformed with the spirit of what I think the whole Committee wishes to see.

§ Mr. Wigg
I am very much obliged to the hon. Gentleman for his undertaking, which meets my point of view. In changing circumstances, this is a difficult matter. The civilianisation of the Army, as it were, forces some such conclusion upon the War Office, and I quite agree with the hon. Gentleman that our rule is common sense. If he will be good enough to give the instructions, the desired result depends on the common sense with which they are carried out.
8.15 p.m.
There is one question of fact, however. By what may have been a slip of the tongue, the Under-Secretary said that a civilian could not be a president of a board of inquiry, but paragraph I of Appendix 3 of the Special Report states: Clause 25 is drafted in broad terms to enable a civilian in the service of the Crown to be a member of a Board of Inquiry and to be a President or member of a Regimental or Unit inquiry. A civilian can, therefore, be president. I do not make a great point of this, but as the hon. Gentleman's words will be on the record I thought we should get it right.

§ Mr. Mulley
My hon. Friend the Member for Dudley (Mr. Wigg) has brought forward a very important point. As I understand it, a civilian cannot be president of a board of inquiry. Subsection (2) makes it clear that A board of inquiry shall consist of a president, who shall he an officer not below the rank of captain or corresponding rank and be subject to military law … On the other hand, a civilian can, of course, be the sole member, if necessary, of a one-man regimental inquiry.

§ Mr. Wigg
A civilian can be a member of a board of inquiry, and as he can be a president or member of a regimental inquiry, he can be president of a regimental inquiry.

§ Mr. Ramsden
I intended to refer to boards of inquiry, of which there must be a military president. If I accidentally brought in regimental or unit inquiries, and said that civilians could not be presidents of those, I was wrong.

§ Mr. Mulley
I beg to move, in page 21, line 25, to leave out "subsection" and to insert "subsections".

§ The Temporary Chairman (Dr. Horace King)
I think that it would be for the convenience of the Committee if, with this Amendment, we took those in page 21, line 25, leave Gut "section" and insert "sections"; in line 26, after "1955", to insert: and of the Air Force Act, 1955 and in page 21, to leave out lines 28 to 44 and to insert: (2) A board of inquiry shall consist of a president and not less than two other members who shall be persons in the service of the Crown.

§ Mr. Mulley
Yes, Dr. King.
These are purely drafting Amendments. It seemed to my hon. and learned Friend the Member for Northampton (Mr. Paget), and I agree with him, that they put the necessary requirements in rather simpler language than does the original. I commend them to the Committee

§ Mr. Ramsden
I realised that the Amendment that suggests using the phrase … persons in the service of the Crown 128 was another attempt, presumably devised by the hon. and learned Member for Northampton (Mr. Paget), to shorten the Bill, and that it was designed to attract by its brevity. This phrase is much shorter than the longer and clumsier one we have included in the Bill, but I must advise the Committee that it would have two effects that hon. Members may not have foreseen, and which would prejudice the Bill's intention.
In the first place, we should get a position where the president of a board of inquiry could be a civilian. I cannot think that this would be the intention of the Committee, especially in view of the remarks made in the debate that we have just finished. It is not intended, and I do not think that it has ever been contemplated, that a civilian should act as president of a board of inquiry. For civilians to do so would be to alter the Service character of these boards, and that character is desirable because boards of inquiry will always be concerned with Service matters.
There is the further objection that the suggested phrase does not cover all persons subject to military law. For example, I am advised that under Section 260 of the Army and Air Force Act, Commonwealth officers attached to our forces, whose countries are republics, are subject to military law though they are not in the service of the Crown.
I think that the Committee will agree that there is no real reason for their being made ineligible to sit on boards of inquiry. In fact, on occasion it might be very desirable for a Commonwealth officer to be a member of a board of inquiry where, for instance, the inquiry was into the absence of a soldier or airman from the Commonwealth who was attached to our forces.
Therefore, in spite of the superficial attraction of the more elegant form of words, I must advise the Committee that our own more cumbersome effort is necessary to achieve what we have in mind. I hope that the Committee will, even if regretfully, accept this advice.
Turning now to those Amendments that suggest the form of words "British subject"—

§ The Temporary Chairman
Order. We are not taking those.

§ Mr. Ramsden
In that case, Dr. King, I have concluded my reply, and I hope that hon. Gentlemen will be convinced by it.

§ Mr. Mulley
I am sure that had my hon. and learned Friend the Member for Northampton (Mr. Paget) been present, he would have been convinced as I am, by the argument of the Under-Secretary. I therefore beg to ask leave to withdraw the Amendment.

§ Mr. Willis
I beg to move, in page 21, line 32, to leave out "person" and to insert "British subject".

§ The Temporary Chairman
It would, I think, be obvious common sense to take with this Amendment that in page 21, line 43, leave out "person" and insert "British subject"; that in page 22, line 4, after "persons", insert "being British subjects", and that in line 15, after "persons", insert "being British subjects".

§ Mr. Willis
Yes, Dr. King, that is obviously quite convenient. As the object of the Amendment is quite clear, I do not need to say much about it. Its object is to ensure that the other persons referred to shall be British subjects. I assume from the Under-Secretary's earlier remarks that it is not the Government's intention to accept this Amendment, but we will be glad to hear the reasons why, because it seems to us to be a sensible, reasonable and assuring Amendment.

§ Mr. Mulley
We need not take long over the Amendment, but it raises a point of some substance which, the Under-Secretary will recall, was discussed by the Select Committee and also was the subject of an additional document prepared by his Department—Appendix III to the Select Committee's Report.
As I understand the position, it is already the case that persons subject to military law, although they may be aliens, are entitled to be members of a board of inquiry or a regimental inquiry and, in that sense, it seems unreasonable to make a distinction between aliens and British citizens both in the service of the Crown. Considerable attention was given to this matter, because it is the practice in overseas stations for a number of 130 foreign nationals to he recruited into the service of the Crown in a civilian capacity. Doubt was expressed as to whether or not it would be appropriate for them to be called on to be members of a board of inquiry or, even worse, to conduct a regimental inquiry which might have some disciplinary effect on individual British soldiers.
The same point is at stake as in our previous discussion about the element of civilian membership on boards of inquiry. As I understand the reply of the Under-Secretary, the whole object was to deal with rather unusual circumstances and to use civilians where their use was particularly appropriate, but it was not contemplated that this would be a regular practice. I imagine that the Committee would not be too alarmed if the Bill took power to include alien civilians on boards of inquiry, or to use them on regimental inquiries, only in special circumstances. But if it is contemplated that this will become a regular practice, then it ties in with the previous discussion and we should be failing in our duty if we did not require an explanation from the Government as to why the Government are now seeking these additional powers.

§ Mr. Ramsden
I must disappoint the hon. Gentleman the Member for Edinburgh, East (Mr. Willis) because, when he interrupted me before, I was not at the point of saying that I could accept the Amendment but I was beginning an argument to try to convince the Committee why we should allow the Bill to remain as it stands.

§ Mr. Willis
The hon. Gentleman may not have heard what I said. I am not so much disappointed that he has not found it possible to accept this series of Amendments, for I said that I did not expect him to accept them in view of the final words of his previous speech.

§ Mr. Ramsden
In that case, I am glad that the hon. Gentleman will not be disappointed. I believe that these Amendments reflect a certain disquiet which was evident during our proceedings on the Select Committee, when the possibility of people who were not British subjects being members of boards of inquiry arose. My impression, after the Committee had reported, was that, having looked at this question in 131 detail, we were satisfied that what we are proposing reinforces the arguments used before and should satisfy the hon. Member for Edinburgh, East. Incidentally, I believe that as drafted the Amendments do not quite achieve what hon. Gentlemen opposite want, since we should still be left with officers who are not British subjects in the position of being able to convene boards of inquiry and regimental or unit inquiries.

§ Mr. Mulley
That is so at present. That is the case at present with aliens subject to military law under the original 1955 Act, as I understand it.

§ Mr. Ramsden
That is the case at the moment and it would still be the case if the Government were to accept the Amendments as drafted. I am merely drawing attention to this to try to show that the Amendments are technically defective as they stand. No doubt, if the Government accepted them in principle, they could be put right. However, I am afraid that we cannot accept, or are so far unconvinced that it is right to accept, even the principle involved.
Hon. Gentlemen opposite will realise that, for example, Gurkhas serving with the British Army—and this point has been mentioned this afternoon—are technically aliens and it does not sound sensible to exclude them from boards of inquiry which may well be concerned with the affairs of their own units. Secondly there may be—as I have mentioned in another connection—occasions when alien civilians may be employed on boards of inquiry with positive advantage. One can think of cases where experts on some relevant subject might benefit and give valuable help to boards of inquiry, such as in the case of getting over difficulties of language.
There is a third consideration; alien officers may be employed in large numbers in war time—as, indeed, they were during the last war—and it might cause difficulty if they were to be excluded from boards of inquiry which might be concerned with incidents affecting their own nationals. I hope that, on reflection—and bearing in mind the discretion which lies with the convening authority on which a certain amount of reliance must, and can, be rightly placed—the 132 Committee will feel that there are practical reasons why the Clause should be allowed to stand as at present and that, after this explanation, the hon. Gentleman will withdraw the Amendment.

§ Mr. Mulley
I do not want to make a lot of this point, but I think that the Under-Secretary must not be allowed to answer the Amendments of my hon. Friend by reading into them words which are not there. They are not, as he conceded, meant to deal with aliens who are actually subject to military law, and there is considerable distinction between them. This was recognised in 1955 because, I understand, without any amendment to the present law, a person who is an alien subject to military law can be a member of a board of inquiry and there is no need for an Amendment to deal with that.
There is a difference, however, with regard to an alien who has the Queen's Commission and who is a member of the Armed Forces. If an alien has a commission in the Services he is obviously considered to be a suitable person to administer discipline. It was, therefore, irrelevant for the Under-Secretary to have brought in the position of Gurkhas, for this subject is very much tied up with the use of civilians. It is, I imagine, much more likely that foreign nationals will be employed in the service of the Crown in a civilian capacity than they will be subject to military law. We are not talking about aliens who may be in the Armed Forces, but civilian aliens. We therefore wanted a much better explanation for the reasons for this proviso.
Finally, I am a little alarmed by the Under-Secretary's repetition of the argument that it may be necessary to have someone on the board who can assist with the language. That seems to me to be a very odd way of conducting an inquiry, to have a board of inquiry consisting of three persons, where evidence will be taken in a foreign language and where only one member of the board will be able to follow the language. If there is a board of inquiry at which witnesses give evidence in a language which is not understood by all the members of the board, surely it should not be left to a member of the board to act as interpreter. It has been said that it might be desirable to have alien civilians on the board because of their knowledge 133 of the language, but surely one would not want them to be on a board of this sort merely to act as interpreters.

§ Mr. Willis
My hon. Friend the Member for Sheffield, Park (Mr. Mulley) has said some of the things that I wanted to say. The Under-Secretary did not convince me of his case. He said that the Amendments might be technically defective, but that is never a good argument to apply against an Amendment. We are considering the principle of the matter, and not the wording. Provided the Government accept the principle, they can always incorporate the Amendment on Report.
Then the Under-Secretary referred to the Gurkhas. As my hon. Friend pointed out, we are surely dealing with officers who are already subject to military law.

§ Mr. Ramsden
I am advised that as it stands, the Amendment covers military aliens—aliens who are subject to military discipline. That is why, in replying to the hon. Gentleman. I felt obliged to introduce the point about the Gurkhas.

§ Mr. Willis
If that is the case, it eliminates two of the reasons that the hon. Gentleman gave for not accepting the Amendment. The first dealt with the Gurkhas and the second dealt with the fact that during a war we might have working with us a number of aliens, most of whom I should have thought would have been subject to military law, and as such could already be included in such boards of inquiry by the present wording.
That left only one reason, which was a very poor reason, namely, that these people might be helpful as interpreters. In the memorandum submitted on behalf of the Secretary of State for War to the Select Committee we are told that there may be occasions when the circumstances of an inquiry would be such as to make it undesirable for an alien to be associated with it. The undesirability on a number of occasions is recognised. If it is undesirable for aliens to sit on a board of inquiry, I should have thought that we ought to have taken cognisance of that fact and put it in the Bill. But on the question of language, surely the point is that one 134 should engage an interpreter. As my hon. Friend says, if only one person on the board knows the language we should think in terms of an inquiry being conducted with the aid of an interpreter, and if that is so, the interpreter should be present as an interpreter and not as a member of the board.
Therefore, I can find very little substance in any of the reasons that the hon. Gentleman gave for resisting this Amendment. We have already discussed the Gurkhas and the fact that they are already subject to military law. That eliminates two of the reasons.
The third reason seemed pretty poor. I should have thought it would have been a good thing to have incorporated this Amendment, or an Amendment with a similar purpose, in the Bill. Certainly anybody whose conduct was being inquired into would like this Amendment to be incorporated. It would give a certain assurance and would make the innovation which is introduced in this Clause much more acceptable.

§ Mr. Emrys Hughes
One reason for the Government not accepting the Amendment, so it was said, was that the Gurkhas should be included. Is it not covered by the words who is in the service of the Crown"? If the Gurkhas are here, they will be in the service of the Crown.