STANDING CIVILIAN COURTS (Hansard, 14 October 1976)

§ Mr. Wellbeloved
I beg to move, That this House doth agree with the Lords in the said amendment.

§ Mr. Speaker
With this, we may also discuss the following Lords Amendments 11 to 47.

§ Mr. Wellbeloved
The schedule deals with the procedure of the new standing civilian courts. I should first emphasise that no changes of policy are involved. As I mentioned earlier, this is the area that is the most novel for the Services, and long and careful scrutiny has been given to the practical and legal problems of incorporating the standing civilian courts provisions into the present structure which has been set up under the Army and Air Force Acts. As a result of this scrutiny and of preliminary drafting of the subordinate legislation required, the need for a number of amendments has been revealed.
Many of these amendments—Nos. 10 of 17, 21, 22, 27, 28, 33, 36 and 47—effect a change of terminology to assist users of the Service manuals. "Higher authority" is replaced by the more specific term "directing officer". "Higher authority" is an expression already used in the Army and Air Force Acts 1955 and means an officer in the disciplinary chain of command higher than the commanding officer of a unit. At various levels related to the rank of the person concerned and to the organisation within which he is working, these higher authorities have power to convene courts martial and are then called "convening officers". Now, with the introduction of standing civilian courts, a higher authority will also have power to direct trial 752 by standing civilian court. Since it seemed helpful to give the higher authority in these standing civilian court cases a distinctive label, he is to be called a "directing officer".
The other substantial group within this schedule consists of Lords Amendments Nos. 38 to 45. In view of the structure envisaged for the subordinate legislation, they are designed to specify with greater precision, and more aptly than before, the procedures for initiating an appeal from a standing civilian court or a petition against its finding or sentence. Also included is provision for the time from which a term of imprisonment passed by a court martial on appeal shall be taken to run and the status of such a sentence.
The remaining amendments to this schedule, like the two groups I have just discussed, introduce no changes of policy. Some I have already mentioned in connection with earlier amendments. Others bring the provisions relating to the standing civilian courts more generally into line with those for courts martial or merely make more explicit what was formerly implicit. All are drafting requirements of some nicety and of varying complexity designed to facilitate the operation of these new provisions in the Services. I commend the amendments to the House.

§ Mr. David Walder
The amendments were referred to by Lord Winterbottom in another place as making up a "dog's breakfast". That is about right. I agree with that phrase. Whether it is Pedigree Chum I do not know. When Lord Winterbottom considered the various phrases that have been used—namely, the higher authoriy, the directing authority and the convening authority—he wondered whether it was thought that the higher authority was the Almighty.
I believe that a case has been made out for more uniformity and standardisation in the three codes of law that operate for the three Services. I say that with deference to my hon. and gallant Friend the Member for Winchester (Rear-Admiral Morgan-Giles). In Committee we were constantly coming up against slight differences of phraseology and usage. Surely the very presence of this large number of drafting amendments 753 makes out a case for something approaching a uniform code of law for the three Services.

§ Mr. Ronald Bell
My hon. Friend the Member for Clitheroe (Mr. Walder) left out one word that Lord Winterbottom used in another place when describing the amendments as a "dog's breakfast"—namely, "appalling". After seeking permission to move the amendments he asked more or less the question at which my hon. Friend has hinted. He said: When I move into legal jargon and the law, I tread with great care. With the permission of the noble Baroness, I will in fact give her an exact definition when we come to a later stage of the Bill. I am afraid I cannot help her more at this moment. I think the point she has made is extremely valid. I do not know how he was able to say that in the circumstances. The noble Lord continued: What is a 'higher authority'? I suppose the highest authority is God."—[Official Report, House of Lords, 15th July 1976; Vol. 373, c. 455.] I do not think that Baroness Vickers would have been much assisted by that.
The Under-Secretary of State has told us that "higher authority" is understood in Service phraseology as meaning an authority higher than the commanding officer. However "higher authority" is being omitted. I do not know whether it is enormously valuable for us to know who the person is who is being struck out. It would be more interesting if the person being put in were to be identified—namely, the directing officer. It may be that that is being suggested as a new label for the person who would otherwise have been the higher authority.
Perhaps we should take this matter fairly lightly. It seems that it was taken fairly lightly in another place. I suppose that there is a slight end-of-term atmosphere in this place, but we are being asked to accept a great many amendments.
In another place Lord Winterbottom, speaking for the Government, referred to refining the interpretation that covers a multitude of sins. However, even with reasonable diligence we do not really know what is happening. Is there a definition of "directing officer" in the Armed Forces Act? If not, and if it is merely suggested as a convenient but non-statutory descriptive term for somebody 754 who was a higher authority, is there a statutory definition in the Act of higher authority? We should know what we are doing. This may or may not be very important but we cannot even know that until we know what we are doing. Who is a "directing officer" and what is the significance of the change? Is it the same person under another name? If so, how do we find the definition of that person?
The Minister is later to move that we agree with an amendment which says that anything done under paragraph 11, the punitive provision, which will be done on this authority, is not to give rise to any right of action if a defect is merely technical. I feel, therefore, that we need to know with a little more clarity just where we are going.

§ Mr. Wellbeloved
I accept as valid the point which the hon. and learned Member for Beaconsfield (Mr. Bell) makes, and I shall seek to clarify the position even further. In my opening remarks I dealt with the matter fairly briefly.
At present, as the hon. and learned Gentleman rightly points out, the higher authority is the officer immediately superior to the officer who is involved in the court-martial proceedings.

§ Mr. Ronald Bell
The immediate superior?

§ Mr. Wellbeloved
Immediate—or he could be higher up the chain. But he must be at least one rank superior to the subordinate officer. Because we have this novel situation in terms of the administration of the Army and Air Force Acts, with a standing civilian court, we seek to remove not only any confusion which might arise as a result of officers reading the Service manuals but any confusion which might arise with respect to civilians who are for the first time to become subject to procedures under the standing civilian court.
It was therefore felt that, to avoid such confusion, it was desirable to use the new term "directing officer". I can tell the hon. and learned Member that the directing officer is one and the same person as the higher authority, but to avoid the confusion which could otherwise arise in a fundamental change of 755 this nature these amendments are put to the House.
I have great sympathy with the point which the hon. Member for Clitheroe (Mr. Walder) makes—the Select Committee made it, too—that it is desirable that the three Services should move at a reasonably rapid pace towards unified disciplinary codes and Discipline Acts. Indeed, if my memory is correct, the Select Committee suggested that at the next Select Committee in five years' time one of the main features of its deliberations should be to see whether it is possible to bring the Naval Discipline Act more into line with that of the other two Services. I hope that when the Select Committee sits again it will make real progress on what I think everybody agrees is a desirable aim.