HC Deb 10 April 1986 vol 95 cc422-30

`(4) After section 89 of the Army Act 1955 there shall be inserted the following section— 89A Notwithstanding the provisions of sections 87, 88 and 89 in the case of a general, district, of field general court martial convened to try a person of below commissioned rank, the defendant shall have the right to insist that at least one member of the court-martial is also a person of below commissioned rank.".

(2) After section 89 of the Air Force Act 1955 there shall be inserted the following section— 89A Notwithstanding the provisions of sections 87, 88 and 89 in the case of a general, district, or field general court martial convened to try a person of below commissioned rank, the defendant shall have the right to insist that at least one member of the court-martial is also a person of below commissioned rank.".

(3) In Section 54 of the Naval Discipline Act 1957, at the end there shall be added the following subsection— (9) In the case of a court martial convened to try a person of below commissioned rank, the defendant shall have the right to insist that at least one member of the court-martial is also a person of below commissioned rank.—[Dr. Godman.]

Brought up, and read the First time.

Dr. Godman

I beg to move, That the clause he read a Second time.

The time has come to change the composition of courts martial where those proceeded against are of noncommissioned rank. In essence, the accused—for example, a sergeant—should have the right if he cares to exercise it to be judged by his peers as well as by his superiors. That is my sincere view and I have subscribed to it for many years.

I should point out that my experience of these matters is severely dated. But I have had the honour as a national service man to serve with that most honourable group of people, the royal military police. Therefore, I have some experience, albeit of a severely dated nature.

9 pm

Mr. Dalyell

I am not entirely happy about this. One does not want to put it frivolously, but are we sure that we want to put the royal military policeman in that position, let alone the regimental sergeant-major because it might be the RSM or the company sergeant-major who was delegated to that task?

Dr. Godman

That is a pertinent question. I take the point that if the accused who was being proceeded against were to be a member of the Corps of Royal Military Police, I would see—as I say, based on my severely dated experience—no objection being made simply because his peer was a senior non-commissioned officer of the corps. But I take my hon. Friend's point. It is a serious matter.

Mr. Bermingham

I hope that my hon. Friend will not think that I am being in any way facetious when I ask him whether he agrees that, just as a civilian can challenge up to three members of a jury, the service man might be allowed to challenge the odd member of the court martial, bearing in mind that they are judges of both fact and law?

Dr. Godman

That would be a useful regulation. I regret that that does not appear in my new clause.

I said that this is my sincere view. I have discussed the idea with a number of former senior non-commissioned officers, principally from the Army, and they expressed sympathy and support for such an innovation. I do not have documentary evidence of that sympathy and support but that has been said to me not 20 yards from where I stand now.

I have no doubt that that view is regarded as an abomination by the hidebound or seemingly hidebound Ministry of Defence, as well as, perhaps, some Conservative Members who are present tonight. I have no doubt that we shall hear once again the classic conservative argument that the moment has not yet arrived; that the moment is not propitious for such radical change. Nevertheless, I shall pursue the argument.

Support for this conservative approach to the composition of the courts martial is often sought from the findings of the Lewis report, which was published in 1946. That committee, under the chairmanship of Mr. Justice Lewis, stated that it would not recommend that other ranks served on courts martial.

However, Mr. Raymond Blackburn, a Labour Member of Parliament, added by way of an addendum a note of dissent to the conclusions and recommendations of the Lewis report. My amendment is in broad sympathy with what he said. Incidentally, Mr. Blackburn served as a captain with that fine county regiment, the East Yorkshire regiment, my late father's regiment. My father was awarded the military medal when he served with, I think, the fourth battalion of that regiment. Mr. Blackburn was also, I believe, the author of a pamphlet entitled "The Soldier's Guide to His Rights and Duties".

Let me quote from Mr. Blackburn's note of dissent these long years ago. He said: While subscribing to the Report as a whole, I regret that on one subject I do not wholly agree with my colleagues on the Committee, namely on the composition of the Court in Courts-Martial. I believe:— (a) That a private soldier, lance-corporal, or corporal (or lance-bombardier or bombardier) should have the right to demand that one corporal (or bombardier) should sit on a Court-Martial composed of three persons trying him, or that two corporals (or bombardiers) should sit on a Court-Martial composed of five persons trying him. I make no apologies for quoting liberally from Mr.Blackburn's note of dissent. He went on to say:

  1. "(b) That a serjeant or warrant officer should have right to demand that one serjeant or warrant officer, as the case may be, should sit on a Court-Martial composed of three persons trying him, or that two serjeants or warrant officers should sit on a Court-Martial composed of five persons trying him.
  2. (c) That the remaining members of the Court should be officers and should be the only members of the Court determining sentence."
One can see the gist of his remarks. He is suggesting something which seems to me to be analogous to the civilian jury system. He then said: In civilian life a man charged with a serious offence has in effect the right to demand trial by his peers because a jury is taken at random from all the sections of the community to try him. I have a great deal of sympathy with that. I also sympathise with what Mr. Blackburn said next: In the services, one cannot introduce a similar provision to ensure that a jury is drawn at random from all members of the services, because to do so would conflict with discipline. I would not disagree with Mr. Blackburn there. He continued: The central problem in Courts-Martial is the reconciliation of discipline with justice. But I suggest that an attempt should be made to assimilate Court-Martial procedure to civilian procedure in this important respect, if it can be done without affecting discipline.

Mr. Bermingham

It seems something of an anachronism, for example, that on a Thursday a man is a sergeant-major and is not eligible to sit on a court martial yet he can be promoted the following Thursday to be a lieutenant and he is eligible. Does that make much difference, in my hon. Friend's opinion?

Dr. Godman

As I said in Committee, somebody who is promoted from the rank of regimental sergeant-major to lieutenant in my view would be precisely the same kind of man. It may well be that the Minister of Defence, other Ministers and some Conservative Members would argue that such a man would receive the appropriate training to enable him to perform a useful role when sitting on a court martial. With regard to the proportion of officers who have come up through the ranks, I seem to remember having been told by Ministry of Defence officials that in the Navy the figure was in the region of 20 per cent. and in the Royal Air Force it was about the same proportion, with a percentage not so very different for the Army.

Mr. Peter Viggers (Gosport)

Those figures are correct, but they exclude officers who have been promoted before the age of 30 from the ranks. In other words, the numbers of serving officers who have served in the ranks are higher than the figures mentioned by the hon. Gentleman.

Dr. Godman

I am grateful for that intervention as the hon. Gentleman has considerable experience, I think I am right in saying, in the Royal Navy and in service matters in general. His graceful intervention supports what I was saying in reply to my hon. Friend the Member for St. Helens, South (Mr. Bermingham).

If I may press on with Mr. Blackburn, he went on to say:

But corporals (or bombardiers) are men who have received promotion because they have a sense of responsibility and discipline. If they can be trusted with the lives of their sections in the exacting predicaments of battle, surely they can be trusted to serve as members of a jury. The proposal which I have made would limit their conscience to serving as jury men, as they would not be consulted on sentence. There I part company with Mr. Blackburn, though in general I have a great deal of sympathy for his remarks. His note of dissent stands the test of time.

Paragraph 16 on page ix of the 1981 report of the Select Committee on the Armed Forces Bill says: Various evidence was taken by the Committee on the composition of courts-martial. We asked in particular whether the time had come for those below commissioned rank to be represented on courts-martial. Although it was denied by the Ministry of Defence that there was any identifiable wish for such a change within the Services and argued by them that American and Canadian experience showed a majority of Servicemen preferring to be tried by officers rather than by their peers, we did not feel that these defences of the status quo were wholly satisfactory. The absence of general discontent with the existing system does not necessarily mean the denial of the right of choice to those, even if only a minority, who would prefer to be tried under some closer approximation to the jury system. It is possible that a greater flexibility in administering Service justice might be found which would not undermine the virtues of the present arrangements. Since this issue has not been subjected to a full review since the Lewis Committee and the Pilcher Committee in the 1940s we believe that such a review is now due and ought to be conducted before the introduction of the 1986 Armed Forces Bill. The Select Committee's report which was published yesterday contains a somewhat disingenuous statement.Paragraph 30 on page xiii of the report says: We note that the Ministry of Defence has in every case modified the rules of service discipline as recommended. In two cases where the 1981 Committee recommended a review of the present practice—with regard to the statutory definition of 'the enemy' and to composition of courts martial—the Government carried out such a review but concluded that changes are not practicable or desirable. The Committee accept the validity of the government's arguments in these two cases, and consider that in general the recommendations of the 1981 Committee relating to service discipline have been implemented in a satisfactory manner. I do not accept that slick statement, and it helps to explain why I voted against the report. There is a good case for the change that is proposed in new clause 1.

Mr. Viggers

The hon. Member for Greenock and Port Glasgow (Dr. Godman) made an interesting speech on Second Reading. One of his points related to the constitution of courts martial, and I thought that it would be a very interesting and worthwhile point to pursue. I have made a number of inquiries since then. They confirm the view that I held previously: that it would not be a good idea to change the existing constitution of courts martial.

I say that for two reasons. It is appropriate for officers to sit as members of courts martial. They have had specific training in various matters, including law, which enables them to contribute properly to courts martial. This point is made on page 200 of the committee's report. Paragraph 5 of the 1985–86 report of the Select Committee on the Armed Forces Bill the Ministry of Defence says:

commissioned officers …are selected and specifically prepared through a planned programme of courses and training throughout their Service, to fulfil the responsibilities of commissioned rank. A part of that career planning is progressive training in military law and responsibility for the administration of discipline from the outset of their commissioned Service.

So there is a plus point in having officers serve as members of courts-martial: they have been properly trained.

9.15 pm

Not only is there a plus point—I hope and believe that my feelings about this are as genuine as those of the hon. Member for Greenock and Port Glasgow (Dr. Godman), who gives serious thought to these matters—there is also a minus point if non-commissioned officers are to be included as members of courts-martial. On page 201, our report says:

It was also felt that the Warrant Officer's position with functions in the disciplinary field concerned with prevention, investigation and reporting of offences should continue to remain separated from the judcial role, the responsibility of commissioned officers. It goes on to say:

Firm views were expressed by senior non-commissioned officers, the category from which representation would be obtained, that membership of courts-martial should continue to be confined to commissioned officers who were ultimately responsible for the maintenance of discipline. It is right that the maintenance of discipline should be the responsibility of officers who, let us remember, are separated in a number of carefully graded ways from the non-commissioned officers and other men in the armed forces. That careful separation of officers from men exists not just for some old-fashioned, out-dated social reason but because officers have a specific responsibility for discipline and other matters. There is a real benefit in having officers as members of courts-martial and a disadvantage in not having them. Because of this, I oppose the amendment.

Mr. Bermingham

In 1946 Mr. Justice Lewis was looking at the world of 1946; in 1986 we are supposed to be looking at the world of 1986. I listened with care in Committee—it was one of the stages at which I was present, before the row developed between me and the Committee and I departed, not in high dudgeon but in despair because, once again, the arguments trotted out in Committee were arguments which were as old as time: we have officers and we have others. To a large extent, we have got rid of that kind of concept in the rest of our social structure. There was a time when it was the squire who was the magistrate and the labourer who was always the defendant. In 1986 it is the farm worker, whether he be a manager or a farm labourer, who very often sits by the squire on the magisterial bench. No Member of the House would deny that many of our courts are well manned by people who do ordinary jobs.

Of course, they are taught the law. We teach magistrates the law. Why can we not teach the senior noncommissioned officers in the armed services the appropriate amount of law? In any case, courts-martial have a judge advocate in attendance to advise. A court-martial is a court of fact. If we broaden the group of people who are to judge the facts, we may on occasion bring to its deliberations a degree of common sense. There is an old doctrine: it is called the doctrine of common sense. The ability to use it is found in the private as well as in the general.

In what is supposed to be an intelligent and increasingly better educated society, I cannot understand why we have to retain in our courts-martial system principles and prejudices more suited to the 17th and 18th centuries, when only members of the officer class were taught to read and write. All that we have sought to do in this Committee in 1986, and all that my hon. Friend has sought to do, is to bring to the court-martial a touch of the 20th century, a touch of trial by one's peers. One's peers are not just one's commanding officer but also one's compatriots, one's friends, fellow members of one's regiment or ship or squadron, people who understand the various aspects of day-to-day life. If we fail on this one in 1986, those of us who are still here in 1991 will have to come back to the same argument. I have done my arithmetic and that is when the legislation will come before us again.

We cannot stop the passage of time and the development of social awareness. The Government cannot retreat for ever, as the Ministry did so often when answering questions from myself and others in the Select Committee, behind the barricades of history by using the defence, "We have always done it this way." For the second time tonight I ask the Minister to accept that when my hon. Friends and I move amendments we are not trying to upset the constitution or to pull down the pillars of the establishment. All we are trying to do is to move the Ministry into the 20th century before we get to the 21st.

Mr. Wallace

The Select Committee did not give sufficient attention to this important matter. Clearly the world of 1946 was very different from the world of 1986, as the hon. Member for St. Helens, South (Mr. Bermingham) has said. The days of the rich man in his castle and the poor man at his gate have gone out of the window.

I have given careful thought to the new clause. Various factors do not persuade me to support it. Not least of them is the amount of training which is part of an officer's career scheme. It is doubtful whether a panel of senior NCOs with the necessary training would be available to participate in a court-martial when required. Many of us were not entirely satisfied about the amount of consultation on some points. Sometimes we felt that if something was not mentioned it was assumed that everyone was happy with it. Since the passage of the previous legislation there has been a review with this specifically in mind. From the evidence presented to the Committee about the Army, it seemed to have gone into the matter in considerable detail. There was confidence in the system, and confidence in a judicial system is important.

The hon. Member for Gosport (Mr. Viggers) might have continued to read from the report and to give the view of some service men that there might be representation on a court martial by warrant officers. Although in some cases they might not be suitable because of their functions in regard to discipline, it was felt that they might have something to contribute because their understanding of a soldier's motivation or background experience might be different from that of a commissioned officer. There might be a good case for giving further consideration to whether those of the rank of warrant officer might be suitable to sit on a court martial. Because the new clause goes further than that, I cannot support it.

Mr. Stanley

Hon. Members have largely covered all the essential points of argument on both sides. I merely want to stress to the Committee that the Government took seriously the recommendation of the 1981 Select Committee. We were asked to consider the issue again. It is an issue about which my colleagues and I in the Department did not have any preconceived notions and which we approached with an open mind.

The study was carried out very carefully. The hon. Member for Orkney and Shetland (Mr. Wallace) referred to the extensive work which was done by all three services and that is detailed in memorandum No. 18, which starts on page 200. Very careful consultation took place and in the light of that consultation and the advice that we received from the services we came to the conclusion that there was no basic case for departing from the initial conclusion that goes back to the Lewis report that the present system works thoroughly satisfactorily.

We are undoubtedly influenced by the fact that, having carried out an extensive consultation within the three services, in our view there is no doubt at all that there is no evidence of any material desire within the noncommissioned ranks of the armed forces for the composition of courts-martial to be altered.

I was most interested by the observations of my hon. Friend the Member for Gosport (Mr. Viggers). Clearly, he has made his own independent soundings in the constituency he represents, which has one of the highest concentrations of service men in the country, and the feedback to him was the same.

I believe that, as the hon. Member for Orkney and Shetland quite rightly said, the crucial factor is whether the existing composition of courts-martial commands the confidence of service men of all ranks and at all levels. I think that without any question the answer to that is an emphatic yes. Given that we have a system at present which is working well and satisfactorily and that there is no material desire for a change, I believe that the Committee's conclusion that the present system should be kept was the right one, and I must ask the Committee to reject the new clause.

Mr. McNamara

I believe that in looking at this clause the Government, the hon. Member for Gosport (Mr. Viggers) and the hon. Member for Orkney and Shetland (Mr. Wallace) omitted to notice one important thing—that it contains an option. It is not mandatory. It would meet the point that was raised by some hon. Gentlemen that they would not want to have on their court-martial a regimental sergeant-major or senior warrant officers. It would also meet another very important point, that there should be felt to be within the court martial a degree of experience and understanding particularly of the position of the private soldier which the officer, for all his legal training and concern for his soldiers, sailors or airmen, might not have.

When the Lewis committee was looking at this back in 1946 the reason why it rejected the suggestion of having non-commissioned officers on the committee—and I am not now talking about Mr. Blackburn's amendment, a note of dissent which my hon. Friend mentioned—was that today, when nearly all officers have to graduate from the ranks, the danger in question is a remote risk". The danger in question was that officers would not have experience of the problems of the ordinary soldier and sailor.

But, if the majority of officers at that time did come through the ranks because of what was happening in the war, that is not the case on this occasion. When we sought information on this from the Ministry, we found that in the Royal Navy 22 per cent., in the Royal Marines 24 per cent., in the Army, male officers, 22 per cent. and in the RAF 21 per cent.—barely one fifth, certainly not a majority—of serving officers had come through the ranks. That is proved if one looks at the footnote to which the hon. Member for Gosport referred in the supplementary note from the Ministry of Defence.

I put it to the Committee that there is room for experimentation here. I accept that no great dissatisfaction has been expressed with the present system. But it seems to have been part of the Panglossian attitude of the Ministry of Defence throughout that if there have been no grumbles the situation is not capable of being improved. The Opposition do not believe that the court-martial system as it exists at present is necessarily the best possible system.

9.30 pm

If the defendant had the option of having someone there who had experienced his society and his type of life, it would help. It would not be impossible to ensure that the necessary training was given to non-commissioned officers. No wonderful sleight of hand can make a regimental sergeant-major into a commissioned subaltern with sufficient experience to sit immediately on a court-martial.

Thus the argument does not stand up and the dependence on Lewis does not stand up, because the facts have changed. There is room to make this alteration. Accordingly, we shall seek to divide the Committee.

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 50, Noes 127.

Division No. 133] [9.30 pm
Archer, Rt Hon Peter Lamond, James
Atkinson, N. (Tottenham) Lloyd, Tony (Stretford)
Bennett, A. (Dent'n & Red'sh) Loyden, Edward
Bermingham, Gerald McNamara, Kevin
Brown, Hugh D. (Provan) Madden, Max
Caborn, Richard Marshall, David (Shettleston)
Carter-Jones, Lewis Maxton, John
Clarke, Thomas Michie, William
Clay, Robert Millan, Rt Hon Bruce
Cocks, Rt Hon M. (Bristol S) Nellist, David
Cook, Robin F. (Livingston) Park, George
Corbyn, Jeremy Parry, Robert
Craigen, J. M. Patchett, Terry
Dalyell, Tam Pike, Peter
Deakins, Eric Powell, Raymond (Ogmore)
Dewar, Donald Redmond, Martin
Dixon, Donald Richardson, Ms Jo
Dormand, Jack Skinner, Dennis
Eastham, Ken Smith, C.(Isl'ton S & F'bury)
Edwards, Bob (W'h'mpt'n SE) Wardell, Gareth (Gower)
Fields, T. (L'pool Broad Gn) Wigley, Dafydd
Foster, Derek Winnick, David
Freeson, Rt Hon Reginald Young, David (Bolton SE)
Godman, Dr Norman
Gould, Bryan Tellers for the Ayes:
Hardy, Peter Mr. Norman Hogg and
Haynes, Frank Mr. John McWilliam.
Alexander, Richard Body, Sir Richard
Alton, David Bottomley, Peter
Amess, David Bowden, Gerald (Dulwich)
Ashby, David Braine, Rt Hon Sir Bernard
Atkins, Robert (South Ribble) Brinton, Tim
Atkinson, David (B'm'th E) Brittan, Rt Hon Leon
Baker, Nicholas (Dorset N) Buck, Sir Antony
Batiste, Spencer Carlile, Alexander (Montg'y)
Bellingham, Henry Carlisle, John (Luton N)
Bevan, David Gilroy Carttiss, Michael
Biggs-Davison, Sir John Chapman, Sydney
Blaker, Rt Hon Sir Peter Chope, Christopher
Conway, Derek Marland, Paul
Coombs, Simon Mather, Carol
Cope, John Maude, Hon Francis
Couchman, James Meadowcroft, Michael
Currie, Mrs Edwina Merchant, Piers
Dicks, Terry Miller, Hal (B'grove)
Dunn, Robert Newton, Tony
Eggar, Tim Penhaligon, David
Eyre, Sir Reginald Pollock, Alexander
Fairbairn, Nicholas Powell, William (Corby)
Favell, Anthony Powley, John
Forth, Eric Raffan, Keith
Fowler, Rt Hon Norman Rhys Williams, Sir Brandon
Fraser, Peter (Angus East) Rifkind, Rt Hon Malcolm
Freeman, Roger Roe, Mrs Marion
Galley, Roy Rowe, Andrew
Gregory, Conal Ryder, Richard
Griffiths, Sir Eldon Shaw, Sir Michael (Scarb')
Griffiths, Peter (Portsm'th N) Sims, Roger
Ground, Patrick Speed, Keith
Gummer, Rt Hon John S Spencer, Derek
Hamilton, Hon A. (Epsom) Stanbrook, Ivor
Hampson, Dr Keith Stanley, Rt Hon John
Hargreaves, Kenneth Stern, Michael
Harris, David Stevens, Lewis (Nuneaton)
Haselhurst, Alan Stewart, Andrew (Sherwood)
Hawkins, C. (High Peak) Stradling Thomas, Sir John
Hawksley, Warren Sumberg, David
Henderson, Barry Taylor, John (Solihull)
Hind, Kenneth Tebbit, Rt Hon Norman
Holt, Richard Temple-Morris, Peter
Howarth, Alan (Stratf'd-on-A) Thompson, Donald (Calder V)
Howarth, Gerald (Cannock) Thompson, Patrick (N'ich N)
Howells, Geraint Thorne, Neil (Ilford S)
Hubbard-Miles, Peter Thurnham, Peter
Hunter, Andrew Tracey, Richard
Jessel, Toby van Straubenzee, Sir W.
Jones, Gwilym (Cardiff N) Viggers, Peter
King, Roger (B'ham N'field) Waddington, David
King, Rt Hon Tom Wakeham, Rt Hon John
Kirkwood, Archy Walden, George
Knight, Greg (Derby N) Wallace, James
Knight, Dame Jill (Edgbaston) Waller, Gary
Lang, Ian Wardle, C. (Bexhill)
Lennox-Boyd, Hon Mark Watts, John
Lilley, Peter Whitfield, John
Livsey, Richard Wilkinson, John
Lloyd, Peter (Fareham) Wolfson, Mark
Lyell, Nicholas Wood, Timothy
McCurley, Mrs Anna
MacKay, John (Argyll & Bute) Tellers for the Noes:
McNair-Wilson, M. (N'bury) Mr. Tim Sainsbury and
Major, John Mr. Tony Durant.
Malone, Gerald

Question accordingly negatived.

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