§ In section twenty-four of the Army Act, 1955, and in section twenty-four of the Air Force Act, 1955 (which relate to aiding the enemy), for the words "international usage" there shall he substituted the words "any international convention or rule of law for the time being in force".—[Mr. Elwyn Jones.]
§ Brought up, and read the First time.
§ 9.30 p.m.
§ Mr. Elwyn Jones (West Ham, South)
I beg to move, That the Clause be read a Second time.
I endeavoured to raise the point to which this Clause relates when the 1955 Army Act was being considered in the House, and I think that, now resurrected, it has some substance and, admittedly, a good deal of difficulty, Section 24 of the Army Act, deals with offences relating to aiding the enemy, and specifies five types of such aid. The important thing to realise is that each type of such crime is capable of carrying the death penalty, and this would therefore seem to be a section of the criminal military law needing as much precision as the draftsman cam bring to bear on his task.
151 The matter with which the new Clause deals arises from the words of Section 24 (1) of the 1955 Act, which says:Any person subject to military law who with intent to assist the enemy … (c) having been made a prisoner of war, serves with or aids the enemy in the prosecution of hostilities or of measures calculated to influence morale, or in any other manner whatsoever not authorised by international usage —I submit that those last ten words and, in particular, the words "international usage" are so vague as to be almost meaningless. International usage is not law or international law, and a usage of war, as I understand the authorities on the matter, is in no way legally binding. The laws of war have been defined in the following terms:The laws of war consist … partly of customary rules which have grown up in practice, and partly of written rules, that is to say, rules which have been expressly agreed upon by governments in international treaties and conventions.That is the range of the laws of war, and it is to be noted that that definition does not include international usage.
What I find surprising is that this matter is now dealt with with some precision in Chapter 1 of the Manual of Military Law where, in paragraph 2, there is the following note:Usages of war which exist side by side with the customary and the written law of war, are not legally binding. They can, for sufficient reasons, be disregarded by a belligerent. Usages of war have. however, a tendency to harden into legal rules of warfare; a large part of the modern law of war has grown up in that way.That, of course, is true. Nevertheless, as the authors of Part III of the Manual said—and I think that they have taken the content of their conclusion from Oppenheim, usages of war are not legally binding. It seems, therefore, that to place a prisoner of war in peril of the death penalty for doing something that is not authorised by international usage is subjecting him to considerable danger.
When the words which are to be found in the Army Act were founded—presumably some time in 1955—the draftsman was then in the difficulty that the Government had not at that stage ratified the 1949 Geneva Prisoners of War Convention, which deals in great particularity with the rights and obligations of the prisoner of war. That Convention was made part of the law of this land by the 152 1957 Geneva Conventions Act. That Act has had the effect of making duties of the prisoner of war to be decided in the matter of the work that he can be compelled to do.
Article 50 of the 1949 Prisoner of War Convention deals with the matter explicitly, and states:Besides work connected with camp administration, installation or maintenance, prisoners of war may be compelled to do only such work as is included in the fallowing classes:Then there follow the classes of work: agriculture, certain industries connected with the production or extraction of raw materials, transport and handling of stores, commercial business, arts and crafts, domestic services and public utility services having no military character or purpose. Thus, that article sets out clearly the nature of the work that a prisoner of war may be compelled to do.
It would, therefore, seem to be important for the protection of the prisoner of war, so that he may know what are his rights of refusal and, on the other hand, what are his obligations, that the Army Act should be more precise than it is at present by more than this reference to the "international usage for the time being in force."
I do not claim any very great merit for the words I have suggested. Indeed, since thinking about the matter further, it may be that more specific and satisfactory words could be used. I am glad that the Attorney-General is here, because he will, no doubt, be able to give the Committee some guidance on the matter. I have thought that perhaps words other than those I have suggested in the Amendment might be better, words like "not required by any international convention or other rule of international law for the time being in force." Those words might be a better text than those contained in the Amendment.
I submit, in any event, that the existing words are unsatisfactory. They are dangerously vague in regard to a penal matter which can carry the death penalty. The problems and difficulties of the prisoner of war are likely to be heavy and it is, in all conscience, our duty to qualify this matter to the best of our ability.
§ Mr. Mulley
I hesitate to interpose myself between my distinguished hon. 153 and learned Friend the Member for West Ham, South (Mr. Elwyn Jones) and the Attorney-General, but I thought that it might be of some advantage to give the consumer's point of view. Having been a prisoner of war myself during the last war I certainly would have been alarmed if I had known that I was liable to so wide a provision as this.
In 1939, no doubt, the law was very different. I think it is typical that, here and there, there creeps into the Army and Air Force Acts the idea that having got fifteen different ways in which to catch an offender, nevertheless, it is thought that there may be some way in which he may slip out of the net, and, therefore, some additional words of an all-embracing character are included.
As we all know, there is a good deal of international discussion on the assumption that there is a war of ideologies, and that to use a phrase like "international usage" is to assume that all the people with whom we might be having hostilities subscribe to the same doctrines, whereas, I believe, a considerable number of countries have not become parties to any of the prisoner of war conventions.
It seems to me that the words in the Act, that a prisoner of war whoserves with or aids the enemy in the prosecution of hostilities or of measures calculated to influence morale …".are all-embracing in themselves. Having been a prisoner of war, I cannot think of anything that anyone could have done that would not have been caught by the first part of subsection (1, c). Therefore, it seems to me that there is no need for these additional words.
If, however, it is thought that something further is required, I strongly support the attempt of my hon. and learned Friend the Member for West Ham, South to get it in a more precise form. Since the whole of the international law concerning the conduct, custody and treatment of prisoners of war is the subject of international convention, it would seem much more logical and fairer to use words of this sort. It may be that my hon. and learned Friend has not got the precise phrase of the Attorney-General would approve, but I hope that he will not resist the Clause. At least, if he is not 154 prepared to accept it at the moment, I trust that he will accept the principle, and will be prepared at a subsequent stage to meet this point, because it seems to me to be going far beyond what is recognised as reasonable to use vague and all-embracing words of this sort.
§ The Attorney-General (Sir Reginald Manningham-Buller)
I have listened with interest to the observations of the hon. and learned Member for West Ham, South (Mr. Elwyn Jones) and the hon. Member for Sheffield Park (Mr. Mulley). I think that they have misunderstood this Section and in particular the effect of the words which they have criticised. If we were to accept either of the formulae put forward, it would enlarge the penal scope of this provision and perhaps bring within it some soldiers who would not be within it as the Section now stands.
If the hon. and learned Gentleman will look at the Section again, he will see that it is really a matter of defence which the last few words of Section 24 (1, c) provide. That is to say, if his act is authorised by international usage, the person who has been charged with an offence under Section 24 (1, c) should not be convicted.
The hon. and learned Gentleman emphasised quite rightly the distinction between international usage, international law and conventions, and rules of law. He made it quite clear that international law is a more precise conception than international usage and so, of course, are conventions. But international usages go beyond international law and conventions. Therefore, to adopt either of the formulae which he put forward would be to enlarge the scope of this Section by reducing the grounds of defence which could be advanced by an accused person. It would, in fact, operate in a way exactly opposite to that which the hon. and learned Member would desire.
I know that the phrase "international usage" lacks a certain precision. I think that there is no formula which can give the same protection to the defence, which is what we want to give, and at the same time give more precision.
The hon. and learned Member said that he endeavoured to raise the matter in 1955. He gave notice of it then and serious consideration was given to it in 155 an endeavour to meet his wishes, if that could be done. Serious consideration has again been given to it since he tabled the new Clause. However, the conclusion we have come to is that, if one put more precision into the Section by adopting a formula such as he suggests, one would be reducing the opportunities of defence of an accused person under the Section, because international law and rules of law and rights under conventions are included in international usage but are of less scope than international usage.
I hope that I have made that clear to the hon. and learned Member and his hon. Friend and I hope also that I have made clear that, although I have dealt with the matter quite shortly now, we have considered it very carefully. The hon. and learned Gentleman spoke of these words in the subsection as exposing an accused soldier to considerable danger. I think that that is a complete misconception of how the wording operates. It really would not do to provide as an alternative to a "convention". For instance, the convention of which he spoke, which had not been ratified when the Acts were passed in 1955, does not do much in the way of saying what a prisoner may or may not lawfully do. What it does is to say what the detaining power may lawfully do. It may be said that that implies that it is lawful for the prisoner to do what he can be compelled to do; but we want the Section to go further than that for the protection of the accused soldier and give a defence not only in respect of what he may be compelled by virtue of a convention to do but also in respect of any acts which are authorised by recognised international usage. By keeping the words as they are we enlarge the area of defence.
For that reason, I ask the Committee to reject the new Clause.
§ Mr. Elwyn Jones
I appreciate the difficulties, but I am still impenitent at least about the wholly unsatisfactory meaning and significance of the phrase "international usage". I can see very great difficulties occurring at some future time—which I hope may never arise— 156 when the construction of those words may call for decision in a court martial. I think that the learned Attorney-General might yet have another look at the matter. However, I appreciate the difficulty and, if my hon. Friend the Member for Sheffield, Park (Mr. Mulley) agrees with me, I am sufficiently aware of them not to press the matter to a Division now.
§ Mr. Mulley
Will my hon. and learned Friend assist me? I am unconvinced by both his argument and the argument of the Attorney-General to this extent, that I do not see why the words are required at all. Speaking for myself, as someone who for five years was a prisoner of war, I cannot think of anything I could have done which would have been detrimental to this country which would not have been caught by the preceding words. First, we haveserves with or aids the enemy in the prosecution of hostilities".That is a very wide provision to begin with. To that one addsor measures calculated to influence morale".The word is "influence" morale, not change morale.
Can the Attorney-General, who is quite rightly concerned with the scope of the defence which a prisoner of war can offer and how best his defence can be conducted, explain why it need be taken any further? Can he give us any instance where the third phrase would need to be brought in, from the point of view of defence? Can he tell us if any crime could be committed by a prisoner which would not have fallen within the two preceding phrases?
§ The Attorney-General
My imagination does not enable me to answer that question, but that is not any reason for not including these words. I think that the addition of these words provides ground for defence which, if this particular passage was left out, would not be open to the accused person.
§ Mr. Mulley
These words can only have been included for the purpose of the prosecution having a wider field in which to base a charge, but that does not apply, as I understand it, to the other case at all. The words "international usage" do not get people out of a charge of "serving with or aiding the enemy". It is wholly for the benefit of 157 charging people, and not for permitting them to defend themselves.
§ Question put and negatived.
§ Schedules 1 to 3 agreed to.
§ Bill reported, with Amendments; as amended (in the Select Committee and on recommittal), considered.
§ Motion made, and Question proposed, That the Bill be now read the Third time.
§ 9.52 p.m.
§ Sir O. Prior-Palmer
I will not detain the House for more than one minute, but as Chairman of the Select Committee I want to say that I think the Bill as we now see it is a tribute to the Committee and the work which it did. I believe that the alterations which we have seen fit to introduce will reinforce the dis. cipline of the Army, without which no Army can be a fighting machine; in other words, to enable a man to control his body with his mind in exceptional and difficult circumstances.
To refer to wastage, as we all know, there is no such thing as a bad regiment, but only bad officers. I ask my right hon. Friend to have a good look at the officers, particularly the commanding officers, of some of these units with a high wastage record, and particularly the Green Jackets Brigade.
Finally, I should like to express my thanks to the members of the Select Committee for their co-operation and help in getting the Bill through.
§ 9.53 p.m.
§ Mr. Cronin
I believe that the Bill will be extremely helpful, and will improve recruitment. I think that we ought to express our gratitude to the members of the Select Committee and to the hon. Member for Worthing (Sir O. Prior-Palmer), who so admirably presided over its labours.
I am sorry that the Secretary of State for War and the Under-Secretary could not find themselves able to accept more of the very helpful Amendments and new Clauses which we have put forward. Perhaps, in some ways, the Bill has some blemishes on it, rather like a wart on the Mona Lisa's nose. Nevertheless, as it is at present, it is a quite praiseworthy piece of prospective legislation and we wish it godspeed.
§ 9.54 p.m.
§ Mr. Profumo
I find myself in the happy position of being able to associate myself with the remarks of my hon. and gallant Friend the Member for Worthing (Sir O. Prior-Palmer) and, to a great extent, with those of the hon. Member for Loughborough (Mr. Cronin), without the Mona Lisa smile which he had on his face. My right hon. Friend the Secretary of State for Air and myself wish the Bill well and thank very much those who took part in the proceedings of the Select Committee. I am sure that the Bill will be for the benefit of the Armed Forces, which is what we all have in mind.
§ Question put and agreed to.
§ Bill accordingly read the Third time and passed.