§ THE DUKE OF NORTHUMBERLAND rose to move, that secretaries of County Territorial Associations who served as such during the war, and were, prior to the war, in receipt of retired pay or pension, thereby performed paid military service within the meaning of the Royal Warrant for Pay and Promotion, as amended by Army Order 324 of 1919.
§ The noble Duke said: My Lords, in order that I may make the matter dealt with in this Resolution quite clear, I think I had better begin by explaining what is the exact point at issue. All officers who had retired on retired pay before the war and who were called up during the war and rendered military service during the war, had their retired pay and pensions reassessed under the Royal Warrant for Pay and Promotion as amended by Army Order 324 of 1919. The question at issue is this. There are thirty-one secretaries of County Territorial Associations who were retired officers on retired pay before the war and who performed the duties of secretaries of associations during the war. It is contended by the Associations that these thirty-one secretaries performed paid military service within the meaning of the Royal Warrant for Pay and Promotion, and, therefore, are entitled to have their pensions reassessed at the higher rate. On the other hand, it is contended by the War Office that they were not rendering paid military, 488 service and are not so entitled. The question is this: Was it paid military service or was it not?
§ Before dealing with the grounds given by the War Office for refusing the claims of these secretaries, I should like to give my reasons for raising the matter before your Lordships, and for doing so in this form. The matter was brought before your Lordships two years ago, on April 28, 1920, by the noble Earl, Lord Dartmouth. Unfortunately, Lord Dartmouth on that occasion obtained no satisfaction from the War Office, but he did obtain a promise from the Under-Secretary of State for War that in view of the very strong expression of opinion that had been received from this House, he would bring most vigorously to the notice of the Secretary of State the great force of authority and weight of opinion existing in your Lordships' House that this interpretation of the Royal Warrant is the one which ought to be followed. That was more than two years ago, and yet I understand that the War Office still persists in its refusal to recognise the claim of these officers to have their pensions re-assessed.
§ In these circumstances it has seemed to us—and I use that word because I think I am expressing the opinion universally held by all members of the Territorial Associations—that the only course open to us was to bring the matter before you Lordships in the shape of a Resolution, in the hope that perhaps the War Office would reconsider the views which it had previously expressed on the matter, or, failing this, that your Lordships would have an opportunity of deciding the merits of the case. I greatly regret that it has been necessary to raise this question. The Territorial Associations are the first to recognise that they have been treated with sympathy and consideration by the War Office ever since the inception of the Territorial scheme. Most cordial relations have always existed between the two, but the fact remains that in these particular circumstances it is felt very strongly that a grave injustice is being inflicted on these officers, who are servants of the Associations, and, although we sympathise with the War Office in its desire to enforce the most rigid economy, we cannot admit that the claims of economy can come before those of elementary justice. So strongly do the Associations feel this injustice, so keenly do these officers feel 489 the unfairness of their treatment, and so Clear does the case seem for granting their claims, that it is simply impossible to allow the matter to rest where it stands at present.
§ I now come to the grounds upon which the War Office have declined to recognise that these officers are entitled to a reassessment of pensions. For the sake of clearness I will take them one by one, and deal with each in turn. The first reason given is that the employment of secretaries of Territorial Force Associations is not military but civilian employment. The reasons given for this assertion are many and various. It has been contended in the first place, that a Territorial Association is not a military body. In regard to this contention I think no better opinion can be given than that of the noble and learned Viscount, Lord Haldane, who was responsible for the formation of these Associations.
In introducing the Territorial and Reserve Forces Act on March 4, 1907, the noble and learned Viscount said:
The Association is essentially a business body. It is in its nature a military committee, incorporated by and acting under the discretion of the Army Council.
In 1918, when the question of the Income Tax payable by these secretaries was before your Lordships' House, he went. on to elaborate the exact status of the Territorial Associations, and he pointed out that they were performing administrative services for the Territorial Army in exactly the same way as the administrative services performed their functions for the Regular Army, and that the Associations are just as much military bodies performing military duties as the Army Ordnance Department, the Army Pay Department, Army Transport, and so on, which perform those duties for the Regular Army. I will not quote all that the noble and learned Viscount said on that occasion. I had intended to do so rather fully, but he is in his place, and I understand that he is going to speak directly after me. As I gather that he has another engagement later I do not wish to delay too long his chance of speaking for himself. I may mention that as at least half the members of Territorial Associations must be military members, it is really absurd to say that the Associations are civilian bodies.
§ Another ground given by the War Office for saying that this employment is civilian 490 is that the possession of military rank is unnecessary for the discharge of a secretary's duties. The noble Viscount, Lord Peel, stated on April 28, 1920, when this question was brought before the House by Lord Dartmouth, that there were actually forty-seven civilians who were secretaries of these County Associations. I have not yet been able to discover what the noble Viscount meant by that assertion. I do not know what his definition of civilian may be, but the fact remains that there are only two cases in which a secretary has been appointed who has not previously held a commission in His Majesty's Forces. The Secretary for Kinross is a civilian, but he has been provided with a military assistant. There is one other case of a secretary who is a civilian, the secretary for Orkney. I may point out that these two Associations between them provide less than the equivalent of one battalion. I am informed that since the war a civilian has been appointed to a large and important Association, but he had had approximately ten years' experience as chief clerk in the secretary's office before he was appointed. How can it be seriously contended that military experience is not essential for the discharge of a secretary's duties, when these are, the only cases in the whole of the British Isles where gentlemen without military experience have been appointed.
§ The best evidence, however, that military rank is essential for the proper performance of these duties is provided by the War Office itself. In a letter sent to the Chairmen of Territorial Force County Associations by the War Office on June 26, 1915, it was pointed out that "the work done in the Association's offices approximates to that carried out in military administrative offices throughout the country," and that "some means should be found of recognising this officially." The letter went on to state that it had been pointed out "that the County Association Office is the centre of military activity in many important cities and towns throughout the United Kingdom, and that the wearing of uniform by the Secretary as the chief permanent official would tend to emphasize the military character of the Association's functions."
§ It went on to say that "many secretaries, by virtue of past service in some branch of His Majesty's Forces," were "entitled to the rank and style of Officers"; 491 that in certain cases they were eligible for appointment to ctive military command, and were only precluded from taking up such appointments by the inability of their own Associations to spare them; and that there was a general, and perhaps not unnatural desire on their part to wear the uniform to which they were entitled, and which would assist them in the proper discharge of their duties. In view of these circumstances the War Office stated that it was desirable that a secretary who was entitled by previous military services to wear uniform should do so, and they granted an outfit allowance of £20 for that purpose. They further stated that where a secretary had not held a commission, or on retirement was not entitled to retain his rank and wear the prescribed uniform, the War Office would be prepared, on the recommendation of the Association, to appoint such secretaries to a commission in the Territorial Force Reserve.
§ The letter also considered the position of the subordinate staffs of the Association. It admitted that some action should be taken to make the essentially military character of the work upon which they were engaged patent to the general public, and in order to do this they sanctioned the wearing of an official badge "On War Service" by the officials of Associations, given a certificate to the effect that they were thoroughly satisfactory officials. In view of this statement it is clear that the War Office did, in fact, admit during the war the position of the military secretary and staffs of Associations which they described as centres of military activity. At a later stage of the war the Army Council were driven even further towards admitting that military rank was essential for the performance of these duties. There were other instances where even assistant secretaries were granted commissions because it was not considered that they were properly qualified to perform their duties unless they did receive commissions.
§ We now come to another ground given by the War Office for contending that the employment of these secretaries was of a civilian nature. They say they were not called up on mobilisation. It is really difficult to take this argument seriously. Of course, they were not called up because they were already at their war posts. They could not be taken for other employment unless the Associations were willing to dispense with their services. The procedure 492 on mobilisation is to order an officer to report for duty at a given place. These officers were at the given place already. They were at their war stations, performing the duties for which they were required in war.
§ But the extremely illogical nature of the position taken up by the War Office in this matter can best be realised when we bear in mind that while they now refuse to regard the duties of a secretary during the war as military service, they have actually authorised such service to count for promotion and precedence. Army Council Instruction No. 1741, 1917, authorises service during the war to count for promotion and precedence for officers who "after retirement from the Regular Army may have served in the Militia, Special Reserve, Volunteer or Territorial Forces, or in any Military appointments, or in positions closely connected with the Army, such as the secretaryships of Territorial Force Associations." Under this Army Council Instruction at least eight secretaries had been promoted to their present rank.
§ How can you, with any regard to logic or justice, say that a man can reckon his service as military service for the purpose of promotion, but as civilian service for the purpose of pension? No one, surely, can doubt that the Army Council has, by its own action in this respect, recognised the employment of secretaries of Associations as military service. It might be worth mentioning, by the way—it is not wholly unimportant—that secretaries who, for their services during the war, were granted the Order of the British Empire received the Order belonging to the military division of that Order. When the Order was first instituted there was no division into civil and military, and they received the Order without any distinction, but when the Order was separated into two divisions these secretaries were transferred to the military division, making it quite clear that when they were rewarded for their services the reward was given for military and not for civilian service.
§ In order that the slightest doubt on this question might be dispelled, this matter has actually been decided by the Courts. From 1915 onwards no doubt had existed in the minds of these secretaries that the Army Council had decided their position beyond any question to be that of performing military services, and accordingly these 493 officers had refused to pay Income Tax except at military rates. In order to decide the point as to the rate of Income Tax which they had to pay, it was agreed that a case should be brought in the High Court, to decide not the question of amount of tax payable but whether these secretaries were by virtue of their position serving as military officers and thereby entitled to be taxed at military rates only. The Surveyor of Taxes who brought the case against these officers lost it, and he appealed. The appeal was heard on June 19, 1919, when he was represented by the Solicitor-General. Judgment and costs were again given against him and from thence forth these secretaries were taxed as military officers. The Solicitor-General did not even argue the case, but admitted at once that it was quite clear that the service was military service.
§ Another reason given by the War Office, in contending that these duties were not military, is that these secretaries were not paid directly out of Army Funds. This is really a quibble. As a matter of fact, the Solicitor-General, on the occasion above referred to, stated that he had ascertained on inquiry that they were paid out of Army funds. The case is clear. The secretaries are, of course, paid by the County Associations, but the appropriation for the County Associations, out of which the secretaries are paid, appears in the Army Estimates like any other appropriation. The salary of the secretary is voted yearly by Parliament out of funds voted for the purpose in such a way as to give Parliament the opportunity of deciding whether these payments are or are not justified. But in this Army Order 329 of 1919, to which I have referred, under which secretaries are paid, paragraph 5, which governs this payment, refers to it as payment being given to persons who have rendered paid military service. It makes no distinction whatever as to the matter in which the money is actually transferred to the recipient, and it is merely a quibble to say that because the money is not given directly by the War Office to the secretary, but is given by the Association to the secretary, therefore he is not paid out of Army funds.
§ Now, I come to one reason given for the War Office refusal which at first sight, but only at first sight, appears to have some little weight. It is said that whatever may have been time nature of the duties performed they were not under military 494 discipline and not under the Army Act. On examination this does not hold water. In view of the services actually performed by most secretaries during the war it cannot be contended that they were not subject to military discipline. Not only did their services count for promotion, not only did they wear uniform, and not only was it admitted that they ought to receive commissions, if they were not already commissioned, but they performed executive duties which could only have been performed by an officer subject to military discipline.
§ Take a few instances. The secretary for the West Riding Territorial Force Association—I am only taking him as an instance, and it is not an exceptional case— performed executive duties as a general officer in interviewing scores of candidates for commissions, and he signed on Army Forms certificates which could only be signed by a general officer. His assistant on several occasions was asked to go to the recruiting office to carry out attestations, and actually acted for the recruiting officer. This secretary offered his services to the General Officer in charge of Administration in his Command, as president of a General Court Martial, or of Courts of Inquiry. His services were accepted. I believe that in fact he was not ever employed in that capacity, but his services were accepted and he was thanked for offering them. It is perfectly clear that the General Officer and everybody concerned imagined that he was as much subject to military discipline and under the Army Act as any other officer.
§ Much more important than this, various services were entrusted to associations which would normally have been discharged by Army officers in the administrative services of the Army but which, owing to pressure of work, were thrown upon the associations. For instance, associations were invited to assist the military authorities in the provision of the renewals of clothing and boots for units formerly administered by the military authorities. This was a service which ought to have fallen on the Ordnance Department, but they were unable to cope with it. Another Army Order empowered them to provide clothing, boots, etc., for 2nd line Territorial Force units, and also to purchase saddlery for instruction of recruits, and such non-technical vehicles and harness as was necessary for home service units. 495 This was another service which was thrown upon associations in order to relieve the Ordnance Department. They were further authorised to arrange for the payment of recruits as a temporary measure, pending the introduction of the normal system of payment by company officers. This was a Pay Department service. They were charged with the responsibility of feeding recruits prior to their transfer to all Stations, and providing them with blankets, crockery, etc. The first was an Army Service Corps duty, and the second was a function of the Barrack Department.
§ The duties of associations at the outbreak of the war were, so far as clothing and equipment were concerned, confined to the outfitting of recruits required to complete the force to its full establishment and to replace wastage. With the handing over of the fully-equipped recruit their dray was performed. But, owing to the strain on the Army Ordnance Department, associations were asked to undertake the provision not only of the initial outfits but of renewals of clothing, etc., for their mobilised units for several months after the declaration of war. Here, again, they were doing the work of the Army Ordnance Department, they were required to provide for the renewal of equipment of Territorial Force general hospitals which, owing to circumstances, the Army Ordnance Department could not undertake. In the Northern Command there were two hospitals, and the secretary of the West Riding Association exercised, on behalf of his association, precisely the same control over those hospitals as he did when he was Administrative General in the Northern Command. In the case of all these services they were precisely the same as those undertaken by the regular Ordnance, Army Service Corps, and Pay Departments, and the executive duties were carried out by the Secretaries—executive duties, I may mention, which could only be carried out by trained officers of experience and capacity.
§ To show how much work was thrown upon them, the secretary of the Northumberland Association (and his case is not exceptional) was entrusted with arrangements for mobilisation of ex-warrant and non-commissioned officers for the New Armies, the mobilisation, for the protection of vulnerable points, of National Reservists who had all to be interviewed before being sent up for attestation. It is somewhat unreasonable to throw upon men duties 496 which should have been rendered by the various administrative Departments of the Army—work which could only be performed by fully qualified military officers, and work generally performed by specially trained officers who have technical knowledge—and afterwards turn round and say that the work is not of a military character, and that the officers who performed it were not subject to military discipline. It is unnecessary to point out that all the work is extra work thrown upon associations. It entailed an immense burden, which fell almost wholly on the secretaries, because a great many members of the associations were far too busy at the time to pay much, if any, attention to their duties as members of the associations.
§ The responsibility of secretaries was consequently enormously enhanced. In the case of one association, the Northumberland Association, the expenditure on various services which the Army Council asked the association to carry out for them amounted to no less than £214,000. Taking the whole of the United Kingdom, the amount expended by associations on services wholly outside their province— services which should have been performed by the Army Departments—must have amounted to many millions. Such were the vast sums provided out of Army funds and handled by these secretaries to whom we are now told the War Office were tinder no obligation, on the ground 'that they were not performing military duties, and were not subject to the Army Act.
§ The situation may be summed up thus. What the Government is saying to these secretaries is this: "We regard the loyal and devoted service which you performed during the war as military service for the purpose of awarding you a decoration. The decoration must be a military one, and must be given you for military service. We regard that service as being so distinctly military as to demand the wearing of uniform while performing it. We admit that it could not fittingly be performed by anybody who did not hold a Commission. We regard it as military service for the purpose of your promotion and your precedence in the Army List. We regard it as being military service for the purpose of throwing upon you a lot of extra work and an immense burden of responsibility, which could not have been performed by Service Departments during the war. We regard it as military service 497 for the purpose of assessing your Income Tax, but, when it comes to assessing your claims to a pension, we regard your service us being of a purely civilian nature." I contend that such an attitude is illogical, arbitrary, unjust, and absurd.
§ But this is not all. The anomaly of the situation may be realised by the fact that the Army Council have recognised that officers whose case is not nearly so clear as that of secretaries of Associations are entitled to re-assessment of their pensions. For instance, Royal Engineer officers on retired pay, who were re-employed by the Ordnance Survey during the war, have had their claims recognised, although this Department is under the Board of Agriculture, although these officers were remunerated from Civil Votes at special rates, and although they were not mobilised, and were not under the military authorities. In spite of these facts they were deemed to be in military employment under the terms of Article 102 of the Royal Warrant for Pay. How can it be seriously urged that these officers were engaged in military employment, and the secretaries of County Associations were not?
§ It would appear that the real reason—I think I am right in saying this, but I shall be very curious to hear the explanation given by my noble friend opposite—the, real reason for refusing this claim is that the War Office say that, if they allowed it, they would have to admit that many other categories of individuals were also entitled to have their pensions re-assessed. On this I have only two observations to make. First, that even if it were true it would not be a reason for refusing justice to these men. Either they are entitled, or they are not. If they are, you cannot refuse it because certain awkward consequences would be involved. But unless the noble Lord who answers me has any fresh light to throw upon this case I deny entirely that any fresh categories of individuals are involved. The contention is apparently that retired officers who were employed as civilian clerks in the War Office or in the Ministries of Munitions or Pensions would be entitled to the higher rate of pension. There is no parallel whatever between the two cases. War Office clerks are simply clerks having no executive duties, who are part of the civilian branch of the War Office. And as regards retired officers employed in other Ministries they did not receive their emoluments from Army funds. 498 These officers did not count service for promotion, nor were they included in the judgment of the High Court with regard to Income Tax. There is, therefore, no parallel whatever between the two cases.
§ I have stated the grounds on which the War Office declined to recognise the claims of these officers, and I submit that the War Office have no case at all. I submit also that a very great injustice has been inflicted on these officers already n depriving them of the higher rate of pensions for the past three years, and that in the interests of the elementary principles of justice this House should see that their claim is recognised.
§ Moved to resolve, That secretaries of County Territorial Associations who served as such during the war, and were, prior to the war, in receipt of retired pay or pension, thereby performed paid military service within the meaning of the Royal Warrant for Pay and Promotion, as amended by Am y Order 324 of 1919.—(The Duke of Northumberland.)
§ VISCOUNT HALDANE
My Lords, I will ask your Lordships to allow me to say a few words in support of the case made by the noble Duke. The real point is a very short one: was this a military service? I think I can demonstrate that it was a military service, and it I can, then two arguments disappear. One is this: that civilians have performed these functions. There have been cases in which civilians have been secretaries of Associations, but that only means that a civilian has been performing a military function. It does not the less import that when a retired officer has been performing this military service for reward he has been performing a military service as an officer. Therefore, it comes within the case which is here brought forward. I cannot but think that the Army Council have come to a somewhat hasty conclusion at an early stage about this matter and have adhered to it somewhat officially. I have a strong suspicion that the genesis of the decision was some civilian opinion founded on a not very perfect apprehension of what the position of a County Association was, and that opinion having filtered into some kind of official form has been rather too easily adopted and adhered to.
To determine whether this service is military or not you have to look at the 499 substance of the matter. What was the service which a County Association was called into existence to render under the Territorial and Reserve Forces Act of 1907? —because it is a question of an Act of Parliament. It is not a question of some course which might have been followed in one direction or in another. A Statute has prescribed what was to be done. That Act was passed in order to make it possible to form a Territorial Army in this country. Like all armies, the Territorial Army had to be formed on a military pattern, and the military pattern was that which obtained in the case of the Regular Army. As your Lordships know, the Regular Army contains two functions—the fighting function, that of the men who are intended for and actually enter into combat; and that of the administrative services which make it possible for them to do it, which provide for the transport, for the commissariat, and also for the raising of the men. The recruiting and training of the men is part of the work of the administrative services. These are all included under the group name of administrative services with us, though on the Continent they are known by another designation. In the old days, when we were not so precise, these two functions of the Army were not distinguished so clearly as they came to be just before 1907. But by 1907 they were very clearly distinguished, and it was recognised that the administrative side of the Army was just as essential and just as much part of the military organisation as was the fighting part of the Army.
It has been said that an Army fights on its belly. It certainly cannot fight without the administrative services. Your administrative officers and troops—the Army Service Corps, the Quartermaster General's Department, the Department of the Master General of Ordnance—are just as vital to the success of the troops in the field as are the fighting men in the front line. In that state of things it had to be considered how it could be worked out for the Territorial army. The Territorial Army, as your Lordships know, was made out of the Volunteers. The Volunteers were a marvellous body from a military point of view. They had no administrative services at all. They consisted of a certain number of uniformed men, trained to a slight extent and supplied with rifles; but there was no provision for their transport, or their medical service—again a necessary part of the administrative side— 500 or for their commissariat or anything else. That had to be improvised, and it was felt that if the Territorial Army was to be a reality its administrative side must be just as definitely formed and clearly developed as was the case with the Regular Army.
How was that to be done? The Territorials were to be raised in the counties, and it was necessary to find some organisation in the counties which could look after the raising of the troops, and their provisioning, and all those administrative services of which I have spoken. It was finally settled by Parliament and embodied in the Act that there was to be a general officer commanding. They were under the general officers commanding in the Commands, but there was to be a regular general officer commanding the Territorial Forces in the Division, and there were to be regular officers commanding in all the higher commands in the brigade. Sometines they were Territorial officers, but, of course, all those officers were military officers having military rank. Then there was to be the administrative side, and instead of appointing, as you would have done with the Regular Army, a Quartermaster-General, a Master General of the Ordnance, and an Adjutant-General to raise and provide for the troops, the functions of these three were to be put in the hands of the new County Association, a statutory body of which the Lord Lieutenant, himself of a quasi-military order, was to be the head, and a majority upon that body, as the noble Duke has pointed out, were to be military people.
The provision made for the carrying out of these services by the County Associations was a very elaborate one. It has been said that its secretary was not paid out of Army Funds. With great deference to those who say it, that really is nonsense. The whole of the funds for the County Associations were provided from the Army funds. What happened was this. At first it was contended in the House of Commons that the money should be accounted for to Parliament down to the last penny, and audited to the last fraction in the ordinary course, just as was done with accounts in the Regular Army. But it was pointed out that would lead to endless confusion and, consequently, this course was adopted. The Army money was handed over to the County Association to be expended. The accounts, of course, 501 were to be audited, but they were not to come in the form of accounts before Parliament, such as was necessary in the case of the expenditure on the Regular troops. The money was handed over to the Association to be expended for definite administrative purposes, and the accounts were to be audited locally as prescribed in the Regulations. The County Association thus formed an administrative unit, an administrative body comprising in itself all those administrative functions of which I have spoken in time of peace, and in time of war they were to keep the Territorial Forces going.
The County Association had, of course, to act through somebody, and somebody of very considerable capacity. The result was that the secretary became a very important person. The War Office could make a suggestion in the matter, and the War Office sometimes did, but we encouraged the Lord Lieutenant to choose the secretary of the Association, and almost always he chose somebody with military training and experience. But that secretary was exactly like a Quartermaster-General; he was exactly like the regular officer who functioned in the Regular Army in a like capacity, and certainly his responsibilities and his duties were not less, and they were clearly equally of a military character. To sum it up, what have you got under these conditions? You have the County Association forming the administrative organ in the Territorial Army. You have the secretary, who is the chief functionary under those who direct and control him—the Lord Lieutenant and the Association itself—and the duties which he discharged were exactly the same as the Army duties discharged by the Quartermaster-General and the Master General of Ordnance in the Regular Army. How anyone in the face of that can say the duties of these gentlemen were not military duties and the service they were performing was not a military service, it puzzles me to understand.
I do not wonder that the King's Bench Division laughed the case out of Court when it was brought up under the Income Tax Act, and my difficulty is to see the smallest distinction between the question raised under the Income Tax Act and the question we have before us to-day. It seems to me that those who, I thought, were rather hostile to this decision forget the provisions and principle of the Territorial 502 and Reserve Forces Act of 1907. I venture to say that if the distinguished soldiers by whom it was my privilege to be surrounded when that Act was planned, when it was drawn up, and when it was passed through Parliament, had had to consider this question they would have come to a very different decision from that which appears to have been come to to-day.
§ THE EARL OF DARTMOUTH
My Lords, before the noble Lord answers I should like to say a word or two on this question. I happen to be a Chairman of the Council of a Territorial Association, and have myself raised this question in one form or another on three separate occasions. I may say, as far as the Council of the Territorial Association is concerned, that whenever we have had the subject before us we have been absolutely unanimous in agreeing with the opinion that is contained in this Resolution. I was perhaps a little too optimistic in hoping that the unanswerable character of the arguments I put forward on the three previous occasions would be sufficient, and I did not take the trouble to put your Lordships to a Division; but if the noble Duke is going to Division to-day I shall most certainly support him, and if he wants a Teller I shall be glad to act with him.
There is only one thing in the admirable speech that the noble Duke made in which I do not think he was quite accurate. He referred to the case respecting the Income Tax of territorial secretaries. That case was originally taken up by an individual secretary on his own account. The Council supported him, but he had already gone forward, and when we wrote a letter to endeavour to strengthen his case the answer we got was: "You have appealed to Cæsar and therefore unto Cæsar you must go." As the noble Duke has told your Lordships, we went to Cæsar, and Cæsar settled the question in two minutes.
So far as my recollection goes, in the first Army Council Instruction the definition was "service of a military character." That has been strengthened since into "paid military service." The letter of the War Office, written under date March 8, goes a step further. The decision of the War Office was based on the ground that employment as secretary of a Territorial Force Association was "civilian employment." That goes much further than 503 "service of a military character," or "paid military service." Wherever you turn you find reasons and arguments to show how absolutely futile the assumption is that it is "civilian service." Take the case of Deputy Lieutenants. Some little time ago I endeavoured to obtain recognition of the civilian work of those who reside in my county by introducing a civilian side to the Deputy Lieutenancy. I was told that if that was done it would involve an Act of Parliament. The letter written to me at that time went on to say that "the qualifications for Deputy Lieutenants are of a military character," and the persons specially mentioned as being qualified for the Deputy Lieutenancy were menbers of the county association. Surely no one is going to argue that if a member of a county association which is largely composed of civilians is qualified for the post of Deputy Lieutenant—a military honour—that the secretary, who is probably the oldest soldier of all, is not qualified to come under the head of "military service."
I should like to utter a word of recognition of the great services rendered by the secretaries of Territorial Associations. I have been chairman of my own County Association from the start. I have always felt that I was rather a good chairman, but I honestly confess I should not have been half so good a chairman if it were not for the invaluable assistance always given to me by my secretary. The noble Duke referred to one or too special associations, and reminded your Lordships that secretaries were not called up on mobilisation.
I have a case which I quoted once before, and to which I think it is worth while to call your Lordships' attention once more, because it shows what these county associations have been called upon to do. This is a case of one of the largest associations. It had to raise, during 1916, three lines of the old Territorial Force. There were 12,600 recruits. They had to be provided with clothing, and partly with equipment, and the association at the same time had to provide for the allotment of 2,750,000 separation allowances. Of this particular Association the president, the chairman, and the vice-chairman were all military representatives but one, and three out of the five representative members were away on service. If the secretary and staff had gone too—and they all wanted to go, or most of them did—what would have 504 happened to the association, to the recruits, to the clothing for the recruits, and to the separation allowances? The whole scheme would have broken down. The matter was regarded by the Association as being so important that it was referred to the G.O.C.-in-Chief, and his reply was that "the services of the secretary and staff are more valuable during the present crisis in their present employment than in any other capacity." Fortified by that opinion the secretary remained.
I do not desire to detain your Lordships but I feel very strongly on this subject, and that we owe a great debt of gratitude to these secretaries all over the country. They have had a difficult time, and the assistance that they have given to those in responsible positions is such that I am desirous it should be recognised. I support as strongly as I can the Resolution which has been moved.
THE UNDER-SECRETARY OF STATE FOR AIR (LORD GORELL)
My Lords, I feel that on this matter I walk in the midst of many difficulties, not only because it is impossible for me to speak with the authority of the three noble Lords who have spoken, but also because I suffer under the disability of replying to a Motion which in fact raises exactly the same point as that which was raised by the noble Earl, Lord Dartmouth, in April, 1920. Though I have listened very carefully to all three speeches I do not think that any new point has been made that was not made in that debate, and, indeed, the position since that time has not changed in any respect, so that there is nothing new that can be said on the part of the War Office. The three noble Lords who have spoken have, therefore, been enabled to take all the arguments of the War Office and dissect and answer them before they have been made again on this occasion. I should like to express my appreciation of the words of the noble Duke as to the cordial sympathy which has existed, and which still exists, between the War Office and the Territorial Force Associations, except on this one question.
The whole of the noble Duke's speech was devoted to the assumption that, after having made the fullest possible use in a military sense of the work of these secretaries, the War Office has now turned round and taken up a different attitude 505 from that which they held during the war. That is an unfounded assumption. The attitude taken up by the War Office has not varied at all during the whole time. It was, I think, the noble and learned Viscount who said that on this question the War Office had come to a hasty conclusion. It is a matter of surprise to me to note the attitude taken by the noble and learned Viscount, for I am under the impression that whilst he was at the head of the War Office he maintained, energetically, the non-military character of the Associations.
The three noble Lords who have spoken this afternoon have uttered many eloquent and weighty words as to the great work done by these secretaries. Nothing that I say is intended in any way to detract from that appreciation. However much controversy there may be on this question, everyone can be agreed in paying the most heartfelt tribute to the work done by the Associations and by the secretaries. This is a question which has been thoroughly explored. After the debate, initiated by the Earl of Dartmouth, the present Secretary of State for India, who was then Under-Secretary of State for War, brought the matter, with all the arguments used in that debate, to the attention of the Secretary of State. Most of your Lordships will agree that it could not have been in more sympathetic hands, and the arguments on the other side, though they have been regarded by noble Lords as folly or as quibbles, were held to outweigh the arguments advanced in the debate.
Most of those arguments have been already stated by one or other of the three noble Lords who have, naturally, put their own interpretation upon them, and your Lordships, therefore, must forgive me if I briefly recapitulate them. The noble and learned Viscount dwelt again, as he did two years ago, upon the great value of the administrative work of the Territorial Force Associations, and developed the argument that the work of these secretaries was exactly the same as that of a D.A.Q.M.G. in the Regular Army. On the other hand, the contention of the War Office is that this cannot be regarded as other than a civilian appointment. It is distinguished in its nature in several respects from an administrative appointment in the Regular Army. For example, it cannot be held by an officer on full pay, 506 and one must draw a distinction between the nature of the appointment and the character of the work performed. It was, and still is, in certain cases held by civilians. Moreover, even during the war one secretary appointed was a civilian.
The Motion to-day is really on behalf of thirty-one retired officers out of a total of seventy-seven secretaries. The distinction made by the noble Duke is that the War Office, having got all they required out of these secretaries during the war, have entirely changed round. He quoted from a letter of June 26, 1915, but he omitted to quote certain paragraphs, to which I must draw the attention of your Lordships in support of my contention that the attitude of the War Office has been the same from first to last. In paragraph 3 of that letter the Army Council say:—Further, the duties of Associations though connected entirely with matters relating to the military forces of the Crown, are not in the Council's opinion such as to require the exercise by members of Associations or their staffs of the disciplinary powers which the grant of military rank confers upon its possessor, and though these duties have increased in volume and altered to some extent in character since the outbreak of the war, the Council are still unable to admit that the possession of military rank is necessary for their effective discharge.Another argument which the noble Duke endeavoured to meet in advance was the contention of the War Office that these secretaries are not under military discipline. He expressed the view that they were; and we have, therefore, a clash of statement, as to which one would think that the balance of judgment must remain with the Army Council. They have taken the view throughout that neither the Associations, as such, nor these officials are under the military orders of the General Officer Commanding. These secretaries—I think the noble Duke actually used the very words in his speech—are the servants of the Associations.
Some ridicule was poured in advance upon the argument that they are paid out of Territorial Force Associations' funds and not out of Army funds. The facts are that they are paid out of a commuted grant given to the Territorial Force Associations in order to meet their expenditure. That was described by the noble Duke as a quibble, but one has to look a little further than that. It is expressly laid down that 507 the Associations' funds are not public funds, the special object being to relieve these secretaries of the Associations who had military retired pay from certain disabilities which they would otherwise have suffered under Section 6 of the Superannuation Act, 1887, and allow them, without any restriction as to their emoluments or employment, to serve in this capacity. Therefore it may be contended, without the use of such a word as "quibble," that there is a definite distinction between the payment they receive and those which regular officers receive.
Both the noble Duke and the noble and learned Viscount dealt with the military character of the Territorial Force Associations. There, again, it is suggested that there has been an alteration of attitude, and I have therefore to draw your Lordships' attention to the paragraph in the War Office letter of June 26, 1915, immediately preceding the paragraph with which I have already troubled the House, where the Army Council say:—They have always attached the greatest importance to the maintenance unimpaired of the special position enjoyed by Associations under the provisions of the Territorial Reserve Forces Act, holding that the introduction into their offices of any system of military organisation would tend to prejudice that position and weaken their independence, and would moreover be opposed to the spirit of the Act and the principles on which it is based.I cannot help thinking that the noble and learned Viscount was forgetful of the attitude therein expressed.
The noble Duke further laid great stress upon the grant of uniform in 1915. He said it had been found that the duties demanded the grant of uniform. That is a slight misinterpretation of the facts, for, while the concession is made in this letter, it is not made from the point of view that the work demanded the wearing of uniform, for it is expressly stated that the grant of rank with the wearing of uniform would be entirely optional, and further that no charges whatever could be incurred upon public funds apart from the initial outfit grant. It was a concession to the feeling of the time.
Two other concessions were made, both of which were referred to by the noble Duke—namely, that in grants of the Order of the British Empire, secretaries of Associations were, given the Military Division, and further, under Army Council Instruction 1741 of 1917, that they might 508 count work and time as secretaries of Territorial Force Associations towards promotion and precedence. The argument that is founded upon this fact by the noble Duke seems to me to be in excess of the facts. Because a concession is granted, is that any reason for building upon this concession and using it as an argument in favour of further concessions? They were distinctly concessions to feeling, and were so expressed at the time. It must not be forgotten that, if it is now held that the work of the secretaries was paid military service within the meaning of the Army Order, it would then seem that, if justice is to be satisfied, it would be difficult not to go far beyond the terms of the Motion and to refuse to give these officers the rank of their pay and gratuity.
I notice in the terms of the noble Duke's Motion the inclusion of a line the reason of which is obvious for the purpose which he has in mind but which nevertheless does not seem really to add to the interpretation of the Royal Warrant. I refer to the wordsand were, prior to the war, in receipt of retired pay or pension.I cannot see how the fact that a secretary of a County Territorial Association was, prior to the war, in receipt of retired pay or pension has any bearing at all upon the interpretation of the extent of his services under the Army Order. That is a question by itself and is not affected by what he was prior to the war.
The noble Duke referred, as he was almost bound to refer, to the decision in the High Court with regard to Income Tax, and I think it was the noble and learned Viscount who sought to raise the dilemma that one must say either that the High Court was wrong or that the Army Council are wrong in their interpretation. But the decision of the High Court in that case referred only to Income Tax. It was not a decision as to any interpretation of that particular Army Order. It decided that this work was of a military character. That is almost admitted in the words of the letter of June 26, where it is frankly stated that the duties of the Associations are entirely connected with matters relating to the military forces. To argue that the decision of the Court is an interpretation of this Order is to apply it to something which is very much wider. It will be remembered that that decision of the 509 Court was applied also to the case of purely civilian acting paymasters, and I think it would hardly be contended that this Army Order applied to them.
The whole point is the interpretation of paragraph 5 of table 16 in the Army Order referred to—where these officers have given paid military service to the satisfaction of the Army Council during the war.And I think the next words are not at all unimportant, for the Army Order goes on to include:Officers who, having retired on retired pay before the war, have been re-employed as officers during the war, and have thereafter reverted to retirement.I think it is not denied that the conditions under which retired officers could be employed on military services within the meaning of the Pay Warrant of 1914, paragraph 496 and following paragraphs, were not followed, no doubt for perfectly good reasons, in the case of these officers, and I think, therefore, it is a misuse of words to sweep aside as of no account at all the argument that these secretaries were not employed within the meaning of that Army Order.
The case has been brought up of those who, if this Motion were to be carried and put into operation, would be affected by it. There is the case of the pensioner clerks. The noble Duke swept them aside altogether, but their case is precisely parallel. They were not re-enlisted, and their claim to reassessment of pension has therefore had to be put on one side. The noble Duke said that there were no other analogous cases, but I think it is the view of the Army Council, at any rate, that were this door to be opened by the grant of reassessment to these secretaries, the claim would immediately be advanced, and with good cause, by many other classes, and this would reopen the very difficult question of the reassessment of the pensions of many classes of pensioners who have done services that might be deemed military; there are innumerable people to whom that might apply.
I can only assure your Lordships that this is not a case in which any hasty decision has been reached. It has been considered and re-considered. The whole strength of the argument developed by your Lordships two years ago and repeated to-day has been considered by the War 510 Office and has been laid before high quarters. I think your Lordships perhaps hardly appreciate the financial burden that will be laid upon the country if this Motion is put into operation; and, when one says that, one must not be taken as not expressing the very fullest appreciation of the work that has been done throughout a long and difficult time by these officers.
§ THE MARQUESS OF LANSDOWNE
My Lords, I do not desire to prolong this discussion, but I feel bound to say two or three words before it comes to an end. Many of your Lordships must, I think, have listened with some disappointment to the speech delivered by the noble Lord who so well represents the War Office in this Houe. It was, like all his speeches, admirable in temper and statement, but it seemed to me that he failed altogether to touch the essence of the case which your Lordships are debating. The noble Lord began by telling the House that in his view this matter had been finally disposed of in the debate which took place in the year 1920. I heard that debate, and I have since referred to it. Far from disposing finally of the question, that debate seemed to me, on the contrary, to leave it to the War Office to make some attempt to meet the weighty arguments which had been addressed to the matter in this House. Lord Peel, indeed, at the close of his speech, evidently impressed by what had been said here, undertook to bring the matter vigorously to the attention of the Secretary of State for War. It is a great disappointment to find that nothing has since been done to meet the difficulty.
The general argument, the argument based upon common sense and common justice, seems to me to be absolutely unanswerable. Nobody can lay his hand on his heart and say that, in the common acceptation of the word, the work done by these secretaries was not military work, and not only military work but military work of the most invaluable description, and work which could not be adequately performed without great qualities of energy and tact, and powers of organisation. What we are confronted with is not so much the argument founded upon common sense as the technical argument. I am not going to say anything disrespectful about technical arguments. I am not going to call them "quibbles"—we old officials know that 511 very often the technical argument cannot be ignored—but what I will say is that the noble Duke by his speech, being apparently in possession of the whole of the technical case, rent it to pieces in the most complete and effectual manner. I do not know that I ever listened to a speech in this House in which a case was more completely and luminously made out than by the speech of the noble Duke.
What I want to say, and the only thing that I am going to say, is that I do wish His Majesty's Government would make us some proposal for having this matter thoroughly and carefully investigated. I do not care what tribunal you set up, whether it be a lay tribunal, or a judicial tribunal, or a military tribunal, but I say that I believe that any tribunal of honest experienced men, ready to weigh the evidence and listen to both sides of the case, would find a verdict in favour of the plea put forward by the noble Duke. Surely, it is not too much to ask that the case should be referred to some such Inquiry as I suggest—an Inquiry on which you may, if you like, put representatives of the Treasury—who would listen carefully to the whole of the argument and give a finding which would command the confidence of all concerned.
§ VISCOUNT NOVAR
My Lords, there is little that can be added to the speeches that have been made in support of the justice of the case brought forward by the noble Duke, and that ease seems unanswerable and not to have been answered. I would, however, like to place a concrete case before the Government, the result of the attitude taken up by the War Office. The Fife County Association had, as its secretary, Colonel Marshall, V.C., an officer with a highly distinguished career in the Cavalry and at military headquarters, Aldershot and elsewhere. He wished, at the outset of the war, to get military employment, but was persuaded by the Territorial Association not to take it. He died in the course of the war after invaluable services to the Association and the county. He was one of those secretaries who made the Territorial system a success. His widow is left with a pension of £70 a year. That might be compared with the pensions given to the widows of other officers who had not performed greater services during the war.
§ EARL FORTESCUE
My Lords, I will not intervene for more than a minute 512 between you and the Division which you desire, but I should attach greater weight to the argument of Lord Gorell if, in addition merely to contending that the appointment of these secretaries was a civilian appointment, he had given us a single instance of any other so-called civilian employment, service in which was allowed to count for promotion or rank, or any other civilian employment, the emolument of which was assessable for Income Tax at military and not civilian rates, or any other civilian service which was rewarded by a military and not a civil decoration, and also, if possible, any other civilian appointment the holder of which cannot be dismissed except with the consent of the War Office.
§ LORD TREOWEN
My Lords, my object in rising is to say a few words in support of the suggestion that fell from the noble Marquess, Lord Lansdowne. It seemed to me to be one full of the wisdom of great experience. As president of a Territorial Association for some years, having previously had experience of several staff appointments and military commands as a general officer, I have never been able to see that it was possible to maintain the position that the secretary of a Territorial Association was a person performing military duties in the sense that a staff officer was, and I was very much surprised to hear the views put forward to-day by the noble and learned Viscount, Lord Haldane, which seemed to me to be wholly opposed to those which he held at the time when he introduced the Territorial Forces Act as Secretary of State for War. Therefore, on the abstract question raised by the noble Duke, I should be against him, but I am perfectly certain that the special case of these officers is one that requires to be dealt with in a very special manner. For that reason I welcome the suggestion, and I hope that possibly we may hear something from the representative of the Government to the effect that they will consider that suggestion and refer the case of these officers for special consideration.
It would be mischievous to the whole Territorial system if a secretary of a territorial county association were placed in the position of a military staff officer. What would at once occur? He would then, as an officer performing military duties, be subject to the whole military hierarchy of the Command in which he is situated. He would be the servant of the 513 General Officer Commanding, of the brigadier commanding the brigade and so on, whereas it has been pointed out here by Lord Gorell that he is the servant of the Territorial Association, and he is not the servant of any military authority whatever. And that, I think, is a very important point to maintain. It certainly is one, I know, which would affect very materially the Territorial Association with which I have been most connected, and in many cases there would be a feeling of resentment were it to be felt that a person whom they appoint and select, whom they look upon as their servant, should be under the orders of the military commander, as apart from themselves. For that reason; much as I sympathise with the position of the officers who have been referred to, I should hesitate very much to support the noble Duke in the Division Lobby, because I feel that the terms of this Motion, if carried into effect, would be injurious to the Territorial Associations.
THE FIRST COMMISSIONER OF WORKS (The EARL OF CRAWFORD)
My Lords, I have been very forcibly impressed by the unanimity with which you support the Motion on the Paper. Personally, I am convinced by what was said by my noble friend, Lord Gorell, but it is obvious to me that, the sentiment of your Lordships being entirely in favour of the Duke of Northumberland, it would be nugatory on my part to invite my friends to challenge the Motion in the Division Lobby. In making that expression of view, however, I should like at least to be sure that the House generally is fully conscious of the implication which this Motion involves. The noble Marquess has just asked that further investigation should take place. The matter has been investigated time after time since it was discussed in this House, I think nearly two years ago. Whenever a fresh application has reached the War Office from one association or another, as has been frequently the case, that the emolument of an individual secretary should be raised, the question has been gone into, not, merely by the War Office and by the Army Council, but by the Treasury as well—the Treasury, which is the Department which gets much blame, but which at the present moment is doing its utmost to effect every economy that it can.
I say, therefore, that the two great branches of the Government concerned having examined the question again and 514 again, I cannot see very much profit in asking them to reopen the subject. Their views I believe to be settled after two years' consideration. It is probably better that the Motion should be accepted as it is than that further inquiry should take place. Only thirty-one officers are concerned directly, I think. The reactions, of course, may be very far-reaching by analogy—very far-reaching indeed. In the case of these thirty-one officers a reassessment of pensions is asked for; in other words, your Lordships are singling out thirty-one people in the public service for an increase of emolument. No money is on the Army Votes for that purpose. Consequently, to adhere to your Lordships' decision means the presentation of a Supplementary Estimate in the House of Commons. We shall, in effect, be asking the House of Commons to pass such a Vote in respect of these officials. Your Lordships evidently, intend to do it, but I am quite sure that many of your Lordships will share my opinion that we have no strong cause to be very confident of the result.
§ On Question, Motion agreed to.