Lords Amendment: No. 4, in page 10, line 23, at end insert new Clause "B":
Without prejudice to section 99(1) of the Army Act 1955 or of the Air Force Act 1955 (application to proceedings before courts-martial of civil rules as to the admissibility of evidence) and to any power to make rules or orders for the procedure of, and otherwise for the trial of offences by, courts-martial, the three last foregoing sections shall apply to such proceedings as they apply to proceedings on indictment subject, however, to such modifications as may be prescribed by regulations made by the Secretary of State, being modifications which appear to him to be necessary or proper for the purpose of the operation of those sections in relation to proceedings before courts-martial.
§ Mr. Taverne
I beg to move, That this House doth agree with the Lords in the said Amendment.
Would it meet with the concurrence of the House if I were to suggest that we discuss Amendment No. 247 at the same time—page 118, line 42, at end insert:
"3 & 4 Eliz. 2. c. 18. The Army Act 1955 Section 99(2). 3 & 4 Eliz. 2. c.19. The Air Force Act 1955 Section 99(2)."
§ Mr. Taverne
The object of this Clause is to apply the provisions of Clauses 8, 9 and 10 to courts-martial. Clauses 8 and 9 which deal with proof by written statement and formal admission, would, in the absence of specific 760 provision in the Bill, apply to Army and Air Force courts-martial, but modifications are needed to adapt these Clauses to the circumstances of courts-martial.
It is also considered desirable that Clause 10 should apply to courts-martial, but again modifications are needed. These are similar in nature to those required for Clauses 8 and 9, but in addition the "prescribed period" within which notice has to be given under subsection (1) will need to be extended since the accused is not normally given legal aid until after investigation proceedings.
§ Mr. Richard Sharples (Sutton and Cheam)
The new Clause refers only to the Army Act, 1955, and the Air Force Act, 1955. What I do not understand is why it does not apply equally to court-martial proceedings under the Naval Discipline Act, 1957. I can see that there is no equivalent to Section 99(1) of the Army Act or of the Air Force Act in the Naval Discipline Act, but I should have thought that the powers to make rules or orders would apply equally to the Naval Discipline Act. I think that perhaps we should have an explanation on this point.
§ Sir D. Renton
The Secretary of State referred to in the Lords Amendment is, presumably, the Home Secretary and not the Secretary of State for Defence. I would be glad of confirmation of this. The matter is rather important because one finds that the Secretary of State will be allowed to make modifications by regulation in the application of Clauses 8, 9 and 10 to courts-martial. Those are important Clauses, which both Houses have discussed at great length, involving important matters of principle. One would hope that great caution would be exercised before modifications are made even in the application of those Clauses by means of regulations made by the Secretary of State.
§ Mr. Hogg
It is by no means self-evident that the notice of abili provisions should apply to courts-martial. To begin with, the tribunal is not a jury and, secondly, the law comes from a judge advocate and not a judge. If this is to be done, the right hon. Gentleman who is in charge of the Bill should communicate with his right hon. Friend the Secretary of State for Defence asking him to try to incorporate in the Manual 761 of Military Law and in the Manual of Air Force Law a strong warning against refusing leave in appropriate cases.
If one hands it to a court-martial—I have had some experience of courts-martial when serving in the Forces—to refuse leave to a defendant to produce an alibi, it will very likely use its discretion against a defendant in circumstances when it is quite inappropriate to do so. It is a great mistake to think that we can translate from a civil code into a court-martial the same regulations, because the atmosphere, I must tell the right hon. Gentleman, is utterly different.
§ Mr. Taverne
I was asked, first, why the Lords Amendment does not refer to the Naval Discipline Act. The answer is that there is no need for it to do so, because powers to make these modifications exist under that Act. Different powers exist under that Act from those under the Army Act and the Air Force Act.
I was asked which Secretary of State is referred to in the Clause. "Secretary of State" covers any Secretary of State, but I understand that in practice it would be the Secretary of State for Defence.
§ Sir John Hobson (Warwick and Leamington)
Am I right in assuming that when the Secretary of State makes the regulations, they would not be prayable against or subject to the supervision of the House of Commons in any way?
§ Mr. Taverne
I am sorry, I do not have the answer to that question. Accordingly it must remain unanswered.
There are two questions concerning the modifications, the first being whether the principles of Clauses 8 to 10 should be applied. I hope that the answer of the House would be "Yes", although it may well be desirable in certain cases that consultation should take place and appropriate advice should be given on the lines suggested by the right hon. and learned Member for St. Marylebone (Mr. Hogg).
Secondly, what modifications have to be made? It is envisaged that they would be purely formal. For example, there would have to be different references from those under the existing Clause to magistrates, judges, chairmen of quarter 762 sessions and the like. Subject, however, to this technical modification, it is envisaged that, broadly speaking, the principles of Clauses 8, 9 and 10 should be the same.
§ Question put and agreed to.