POWERS OF ARREST BY MEMBERS OF HER MAJESTY'S FORCES (Hansard, 8 April 1987)

§ Mr. Archer
I beg to move, That the clause be read a Second time.
In this debate we continue to grapple with the problems that arise from the various powers to stop and search, their proper construction, the conditions to which they are subject and their relationship to one another.
In paragraph 384, when discussing section 18, Sir George Baker related some of the problems of construction which arise, and he commented : Why should a soldier know what he can do if a lawyer does not? He was appealing for the powers to be clarified. That appeal was echoed by the right hon. Member for South Down (Mr. Powell). Sir George Baker claimed that they should be clarified in the interests of those who must operate them.
In Committee, my hon. Friend the Member for Blaydon (Mr. McWilliam) commented that the power should be in a form which enabled instructions to be given to soldiers simply and clearly. They have neither the training nor the time to engage in academic speculation about problems of construction.
Reflecting on that, after the Committee stage, it struck the Opposition that a member of the armed forces of whatever rank, including a recently enlisted private, would be personally liable in civil proceedings for any restraint that he might place on a member of the public if it transpired that that restraint was not authorised by some statutory power. That would be the case even if he were acting on orders, if those orders were not authorised.
378 It may be said that that is a traditional way of dealing with such situations in the United Kingdom. Anyone who purports to act in pursuance of a power is personally answerable if that power does not exist. If we were dealing with a criminal offence, I would not seek to argue otherwise; but where we are concerned with actions for damages, the victim probably would not be troubled who paid the damages provided they were paid. It seems hard that a junior member of the forces, acting on orders, should be personally liable to an order for damages. It would impose a heavy obligation on a private to say that he should have recognised that the instructions that he received from a major were unlawful and that he should have refused to carry them out. I do not think that that would be realistic and I am not sure that it would be in the interests of good discipline if he were encouraged to speculate on such matters.
Any superior officer who gives an order which he is not authorised to give would be responsible to the victim since he would have made his subordinate his agent for that purpose. For the avoidance of doubt, we have sought in the new clause to declare that that should be the effect. The victim will not lose his remedy and justice will be done. The unfortunate individual at the receiving end of the unlawful order will be protected. That is the purpose of the new clause.

Mr. J. Enoch Powell
I found the new clause a most fascinating one to study, partly because the rank of sergeant seems to be the only one between private and brigadier that I did not occupy during the late hostilities. It is inherently strange that one should stop at the rank of sergeant in this business of transferring upwards through the ranks whatever liability is caught by the new clause. The distinction between a private and a lance corporal is one of the biggest chasms in the class systems which it is possible to cross, ought at least to have been recognised, if only in passing, by the right hon. and learned Member for Warley, West (Mr. Archer).
There is another difficulty. When the ball comes to rest with the sergeant, it is the member of superior rank who is to be held responsible. But what if it was a staff sergeant or a company sergeant major or a regimental sergeant major who gave the order? Will that be satisfactory? I noticed that a commissioned officer seemed to be in the right hon. and learned Gentleman's mind.
I am not sure whether the clause, in its present form, whatever might be the excellence of its intentions, is either fair in itself or likely to achieve its object. I imagine that in that respect I am at one with the Government Front Bench.

§ Mr. Scott
If the main object here is to protect the position of any victim of an action to ensure that proper recompense can be made, I can set at rest the mind of the right hon. and learned Member for Warley, West (Mr. Archer) by saying that, if any civil action were taken, the Ministry of Defence would be vicariously liable, not officers of non-commissioned or commissioned rank. I hope that that will satisfy the right hon. and learned Gentleman and that there will be no need for him to pursue the new clause.

§ Mr. Archer
I am not sure that I am wholly convinced but I beg to ask leave to withdraw the motion.