HL Deb 15 April 1930 vol 77 cc124-51

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Thomson.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DONOUGHMORE in the Chair.]

Clauses 1 to 4 agreed to.

Clause 5:

Abolition of death penalty in certain cases.

5. For the purpose of abolishing death as a penalty for certain offences, the following amendments shall be made in the Army Act,—

(1) In Section four, paragraph (7) (including the word "or" immediately preceding that paragraph) shall be omitted, and in Section five after paragraph (6) the following paragraph shall be inserted:— or (7) Misbehaves or induces others to misbehave before the enemy in such manner as to show cowardice.

(2) In subsection (1) of Section six, paragraphs (b), (h) and (k) (including the word "or" immediately preceding the last mentioned paragraph) shall be omitted, and in subsection (2) of the said section after paragraph (e) the following paragraphs shall be inserted:— or (f) Without orders from his superior officer, leaves his guard, piquet, patrol or post; or (g) By discharging firearms, drawing swords, beating drums, making signals, using words, or by any means whatever, intentionally occasions false alarms in action, on the march, in the field, or elsewhere; or (h) Being a soldier acting as sentinel, leaves his post before he is regularly relieved,

(3) In subsection (1) of Section twelve, for the word "death" there shall be substituted the words "penal servitude."

VISCOUNT FITZALAN OF DERWENT moved to leave out Clause 5. The noble Viscount said: I should not have taken the responsibility of moving this Amendment had I not known that it was strongly desired that I should do so by noble Lords of the highest military rank and (what is much more important than rank) of the greatest military experience, who have had from day to day the grave responsibility of giving decisions on these matters of life and death. I must enter a protest against the action of the Government in compelling us to consider this question at this peculiarly inconvenient season. I do not for a moment suggest that their action in this respect is in the least intentional. I know well the difficulties of arranging public business and of dealing with Bills that have to be passed by a certain date, especially when the Parliamentary situation is further complicated by the imminence of a Recess; but I do say, and I feel strongly, that if, in an Annual Bill of this character, the Government choose to insert momentous changes, it would be only fair to this House and to the Army that they should give adequate time so that those changes could be properly and fully considered.

If your Lordships will turn to page 4 of the Bill, you will see that Clause 5 occupies practically the whole of it, and the points that we have to consider are limited to that one page. You will see that there are three subsections in this clause, of which the first two were in the Bill as originally introduced by the Government. The third subsection was added to the Bill during its passage through another place. It will be convenient, I think, to limit our discussion in the first place to the first two subsections before touching the third subsection, which was put in, so to speak, as an afterthought. The first subsection lays down that anybody subject to military law who misbehaves or induces others to misbehave before the enemy in such manner as to show cowardice— shall, under the present proposals of the Government, no longer be liable to the death penalty. The death penalty is, of course, a terrible thing. There is no doubt that in the late War, owing to its appalling horrors, there were many cases of men who were quite irresponsible for their actions and who lost their nerve power and will power, but I very gravely doubt whether any of those men suffered the death penalty.

With regard to these two subsections, I should like to point out that the Secretary of State, in the course of his speech in Another place, stated very frankly and, if I may say so with all respect, very properly, that in taking the action that he took he was acting contrary to the opinion and the advice of his Army Council. They had tried to instil into him that the death penalty for cowardice acted as A great deterrent, and that in their opinion the mere fact of the death penalty being applicable would not only save men from becoming cowards, but would also save other men from losing their lives owing to the action which they might take. If they had only imprisonment in front of them instead of the death penalty, the temptation to perform an act of cowardice would in many cases be almost irresistible. I do not mean for a moment to suggest that the Secretary of State is not quite entitled to go against the opinion of his Army Council, but I cannot help saying in passing that I wish he had been mindful of his predecessor, the late Mr. Stephen Walsh. Those of us whose privilege it was to be in the House of Commons with that gentleman, and to be, as I was, on terms of friendship with him—and he was a staunch Party man, and an upholder and adherent of the principles and policy of the Labour Party—will remember that he was adamant in refusing, when Secretary of State for War, to allow any change in the death penalty with regard to the subjects which we are now considering.

It is the fashion in some quarters to disparage the Army Council. I do not know why. They are human. They may make mistakes and probably do, like the rest of us, but anyhow they are men of experience, and I think in matters of this kind you want men of experience. I have heard it suggested in some quarters that they are prejudiced. I do not doubt that in time of war they may be prejudiced in favour of killing the enemy, but it is folly, and it is unworthy, to suggest that they are in favour of killing their own men. In the late War there were 282 men shot for desertion and cowardice, and of that number eighteen only were shot for cowardice. I submit that when we consider the enormous number of men employed in that terrible War, these eighteen cases are almost certain to have been very grave and serious cases, and I think we need not trouble ourselves about any grave risk of injustice in the infliction of the death penalty in cases of cowardice proved to be very grave cases indeed. There is no doubt a mass of evidence which shows that if the death penalty is abolished for these offences there will probably be a great increase in acts of cowardice. With the death penalty before a man he nerves himself to resist, but if imprisonment only is before him, the temptation to give way is very great.

There is one other point in connection with this which is not pleasant to talk about, but which I ought to mention. Cowardice, happily, is not popular in the Army. So long as the possibility of the death penalty exists, those who may be endangered by an act of cowardice, knowing that a fair trial is in front of the individual, will probably leave him alone, but cases have been known where men have taken the law into their own hands. Lynch law is a possibility, and I submit that it is a thing to avoid which every precaution should be taken.

But let me hurry on, because we can come back to the general subject later. Let me come to the next offence which it is proposed to exempt from the death penalty:— Without orders from his superior officer, leaves his guard, piquet, patrol or post. I should like to ask your Lordships to picture to yourselves the position of an officer whose duty it is to post a man in a particular place of danger, and for the man to say that he prefers imprisonment to stopping there. What can be the effect on discipline of action of that kind? Yet it is very tempting, if a man knows he is free from the penalty of death, for him to take such action. Then the next offence is— By discharging fire-arms, drawing swords, beating drums, making signals, using words, or by any means whatever, intentionally occasions false alarms in action, on the march, in the field, or elsewhere. I do not attach much importance to that because I do not think it is ever likely to happen. Making signals is common enough no doubt by spies, but by men serving in the Army it is very rare, if not almost unknown. That being so, I do not see that it matters about this penalty of death remaining, because if such a thing should occur, if a man should give signals to the enemy and thus jeopardise his own comrades and his own Army, surely the death penalty cannot be considered as too great.

I come now to the insertion made in the Bill in the House of Commons. Subsection (3) says— In subsection (1) of Section twelve, for the word 'death' there shall be substituted the words penal servitude'. Section 12, subsection (1), of the Army Act is as follows:— Every person subject to military law who commits any of the following offences; that is to say,

  1. (a) Deserts or attempts to desert His Majesty's Service; or
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  3. (b) Persuades, endeavours to persuade, procures or attempts to procure, any person subject to military law to desert from His Majesty's Service, shall on conviction by Court-Martial—
if he committed such offence when on active service or under orders for active service, be liable to suffer death… This Amendment moved in another place has had the effect of abolishing the death penalty for that offence, and I submit to your Lordships that we ought to be very careful before we allow the abolition of that penalty to remain. Desertion may be of various kinds, but no matter how grave a case, if this Amendment made in another place is allowed to remain the highest penalty possible for such a crime is a period of penal servitude.

Assume the case of a man who has received, or who knows he is going to receive, an order to go over the top and be exposed to the gravest possible danger. He says to himself: "Well, if I do not obey this order I can but get a period of imprisonment and I will not only refuse to go myself—I will try to get away, I will try to persuade others to go with me." And in persuading them to go he will remind them that all they can get is a period of imprisonment, with the absolute certainty that when the war is over there will be an amnesty, and they will be left scot free. I suggest that action of that kind is so dangerous—so dangerous for the good of the troops fighting, so dangerous for the loyal and brave comrades remaining at their duty—that it ought to meet with the severest punishment.

I remind your Lordships that the insertion of this Amendment was not intended by the Government. It was an Amendment, moved by Mr. Thurtle, a member of the Labour Party in another place—a gentleman, it is only fair to say, who, I understand, did his bit in the War with credit and distinction. It was left to a free vote of the House—a very proper decision, with which I am sure we all agree, for none of us want to regard this grave matter in any sense from a Party point of view. It was carried by a majority of 84, but only in a comparatively small House, 354 voting out of a possible 615. And it is very significant—I call your Lordships' attention to this—that the Secretary of State himself voted against that Amendment. I remember in that debate reading how a valued friend of mine, a man of many years' standing in the House of Commons, one who took his full share of the dangers and the horrors of the late War, said that though he knew it was a very unpopular thing to say, he had sometimes observed in his experience of the House of Commons that that Assembly was occasionally moved by sentiment. I do not think there need be any surprise that after a great and horrible war like the last sentiment should have considerable play. Personally, I value sentiment in its proper place. I believe there is much good in the world due to sentiment; but I suggest that, while the influence of sentiment may be good, it must not be allowed to govern our actions.

There is another point to consider with reference to these questions. Public opinion at the present time is satisfied that there is going to be no more war. We all hope that that is going to be true; but the very fact that it is generally believed makes people callous, and prevents them from giving real, deep consideration to the grave matter which we are discussing this afternoon. If we are dealing with a question of this kind we have got to assume that there will be war. We all hope there will not, but we have to assume that there will be, otherwise the whole thing is a farce, and there is no use talking about it. And in connection with desertion I should like to call your attention to the fact that the number of men executed during the. War was only 264, out of, I think, close on 9,000,000 men enlisted for the Service. That does not sound a very large number—though quite enough indeed. But I would ask your Lordships to remember that the death penalty can only be awarded, first by a General Court Martial, and then only with the con currence of at least two-thirds of the members of that Court; or, it can also be awarded by a Field General Court Martial, but then the opinion of the Court must be unanimous. And, further, the final decision rests with the revising and confirming officer, and I submit that the figures I have quoted show that there was no abuse in the fixing of the penalty in the recent War.

I want to call your Lordships attention to the Report of the Committee set up by the Government opposite when they were last in office. They appointed a Committee to consider the very questions I have enumerated to you this afternoon. That Committee was set up in 1924. It is true the Government went out before the Report was signed, but I think they had a last meeting within a very few days of the signing of the Report. The terms of reference included what we are discussing this afternoon, that is to say, every one of these offences enumerated in subsections (1), (2) and (3) was considered by that Committee. That Committee examined 'witnesses, and the witnesses were not only officers but civilians, lawyers, and private soldiers. The Committee to a man turned down the proposal that any change be made in the death penalty for the crimes we are considering now. That Committee finished its labours just five years ago. It seems to me a strange thing that in face of that decision come to by a Committee appointed by the same Party as the present. Government, they should now bring in these proposals so soon, and not give proper and full time for the discussion of them.

I should have thought it might be possible, considering the circumstances of the moment, for the Government to withdraw these proposals. It would do no harm. We all hope there will be no war at all again at any time. But surely we may hope with considerable confidence that there will be no war during the next year, and that would give ample time for further consideration of this terrific problem upon which so much may depend. I hope the Government will kindly give consideration to this possibility. If they do not, if they do not feel that they can, then I can only say that I see nothing for it but for us to put them to inconvenience. I hope every member of your Lordships' House who is here to-day, quite irrespective of Party will ask himself whether it is not his duty to throw out Clause 5 rather than let it come to be the law of the land without further consideration. I beg to move.

Amendment moved— Page 4, leave out Clause 5.—(Viscount FitzAlan of Derwent.)


As one of the senior officers of the Army as well as one who has had a certain amount of experience in the maintenance of discipline under active service conditions, I wish to endorse whole-heartedly the Amendment that has been moved by the noble Viscount, Lord FitzAlan. I entirely endorse what he has said; but I should like, if I can do so without wearying your Lordships, to put the matter before you from a soldier's point of view. When any Government sends its Army, or part of it, into the field on active service operations it is responsible to the nation that that Army is furnished with the best possible armaments and equipment, that there is a system of supply which will ensure the maintenance of that Army—using the expression in the most comprehensive sense —throughout the campaign, that there are adequate measures for the care and treatment of the sick and wounded, that all possible measures are taken to safeguard the health of the troops, and last, but by no means least, that everything is done to keep up morale.

The morale of an Army must be sustained by the maintenance of a very high standard of discipline. That is generally recognised. Indeed, in the Preamble to the Army Act it is distinctly explained that in order to preserve—the term is rather a peculiar one—exact discipline, it is necessary to prescribe certain severe penalties and punishments many of which are only of real gravity when committed on active service. The commander in the field is responsible for seeing that the operations entrusted to him are carried out in such a way as to give the best possible chance of success and, moreover, with the least possible loss to his own troops. He is fully aware that the success or failure of his operations depends, for the most part, on the morale of his troops, and he is very careful not to do anything himself or to allow anything to be done on his behalf which would lower the morale or the standard of discipline.

It is recognised that in order to support him in his efforts he must be provided with special powers both of a protective and a punitive character. It is essential at the outset that it should be impressd upon all those who serve under the commander in the field that they are for the time being entrusted with the honour of their unit, of their Army and of their country. The honour of the unit means a good deal to soldiers. It should be impressed on them that the success of the operations depends on unity of action and that that unity depends, in turn, on the way in which each man performs the task allotted to him. He should be made to realise that while, on the one hand, gallantry and meritorious service will be duly recognised and rewarded, on the other hand severe penalties are provided for any dereliction of duty, and the severest for those derelictions which either prejudice the success of the operations or endanger the lives of his comrades.

There is general agreement on all those points. Where there is a difference of opinion is, firstly, what are the offences which may prejudice the success of the operations or endanger the lives of comrades, and, secondly, is it necessary as a deterrent to have the death penalty for those crimes and will not penal servitude suffice? My answer to the first question is that in addition to those for which the death penalty already stands, all those offences enumerated or referred to in Clause 5 come under this category. As regards the second question, I say most emphatically that in my opinion penal servitude is not a deterrent. It means safety. The only deterrent for the man who will wilfully behave in such a way as to endanger the lives of his own comrades in order to avoid the risk to his own life is the knowledge that, while his comrades may possibly incur death at the hands of the enemy, which will be a glorious and honourable death, he, if convicted of one of these offences by a Court-Martial and executed, will die a death that is dishonourable and shameful.

May I illustrate what I mean by a picture? Take the case, first of all, of a post or line of posts held by a body of men to which it is generally known that the commander attaches great importance. That post or line of posts is seriously attacked. Casualties begin to occur and two or three men slink away into safety. The others remain at their posts and successfully defend them, but some of them lose their lives. Or, in the case of an attack, when the order to advance is given, the majority go forward. Again, two or three slink away into safety. The others go forward, and the attack is successful, but there are, as there must be, a certain number of casualties. The effect is that those who went forward and did their duty well and gallantly have lost their lives; the shirkers, the men who deserted their comrades in danger, are placed in safety for the remainder of the campaign. What is the reasoning of the rank and file in that kind of situation? They may say truly: "We know that in all campaigns there must be hardships and privations, and we are prepared to undergo them. We know that in all campaigns there must be risk to life and we are prepared to risk it; but what we are not prepared to see is the men who desert us in time of danger because they will not risk their own lives given, certainly penal servitude with all its rigours, but a punishment which gives them safety for the whole campaign. Surely it is almost a premium on misbehaviour, and would it be surprising if, upon such an occasion, the men took the law into their own hands and shot those who were endeavouring to leave them? Happily, cases in which officers and men have had to shoot their comrades in such circumstances are very rare, and it would be lamentable if owing to a mistaken leniency they became common.

In supporting this Amendment I will put before your Lordships three special points. The first is that the measures that provide for the death penalty in the cases to which we are referring are far more protective for the good soldier than punitive to the offender. Secondly, in all those cases, it is only a case of being liable to the death penalty, and taking the most common and, I think, the most important of them, desertion, there are a very great variety of cases in which no Court-Martial would give an award of the death penalty except in cases of extreme gravity. I believe that of the number of cases in the last War for desertion only one per cent. were executed. Thirdly I would point out to you that in any case where the death penalty has been awarded by a Court-Martial the whole proceedings are subjected to a meticulous scrutiny and every possible consideration is given to extenuating circumstances. I can tell your Lordships from personal experience that there is no more painful duty a commander has to carry out, none which he would more gladly avoid, than signing the death warrant for the execution of one of his own men. I would ask you to support this Amendment for the reasons I have given and for those expressed by the noble Viscount, Lord FitzAlan. If the Bill stands as it is now I am quite confident that in the future, far distant as that future may he, the effect will be to prejudice the morale and also the high standard of discipline which hitherto has been a proud tradition of the British Army.


I entirely endorse every word that my noble friend Lord Plumer has uttered. I should like to suggest to your Lordships that the behaviour of a soldier in war very largely is the result of his peace training and the moral atmosphere created during his peace training. He will behave well in war—with the exception of the few black sheep which there are in every fold. When a young man enters the Army, whether as a commissioned officer or a private soldier, he is well aware that he is joining a Service in which discipline is strict, even to severity. He always knows that, and he has due reverence for that discipline. When he joins he is well aware of the fact that certain offences in war are liable to the penalty of death. That does not trouble him at all: it causes no alarm in him, because he is young and he does not contemplate the possibility of his committing any of those crimes which would render him liable to that punishment. But the severity of the penalty indicates the enormity of the offence, and it creates a moral atmosphere which causes him to abhor that crime and anything that would affect his honour and duty as a soldier. The moral influence thus created would, I think, be very much lessened if the penalty of death were abolished.

The knowledge that such offences may be visited by the extreme penalty of death very much influences the gravity with which such crimes are regarded, and those crimes are extremely grave, as has been already pointed out. The committal of these offences may endanger the lives of many men, may cause the failure of military operations, and so bring about possibly a national disaster. I hope your Lordships will agree that any action tending to lower in any respect the abhorrence with which those offences have hitherto been regarded will have a very serious effect on discipline. The soldier has been accustomed to look on these provisions as indicating the majesty and the awe of the law, which can enforce these penalties, and the effect on his young mind of any alteration would be that now these offences are to be regarded as less grave than they used to be. That will surely, to my mind, and I hope your Lordships will agree, strike at the foundations of discipline.


It is with great diffidence that I venture to address your Lordships, for I am a newcomer to this House, and I cannot speak with any authority or experience comparable to that of the noble and gallant Lords who have already spoken. But I have had the privilege for some twenty years of occasionally hearing your Lordships' debates from the steps of the Throne, and I know your Lordships will always lend a considerate ear to anyone who endeavours to express his opinions, however lamely, if he says what he believes to be in the public interest. I am only speaking as one who has been an ordinary soldier, and I think, perhaps, that point of view may be of a little value. I have naturally a most profound respect, and a proper respect, for any decision that is arrived at in another place, especially when it is arrived at in the manner in which this decision was reached. But it seems to me that the protection which it was evidently the intention of this change in the law to devise is in fact no protection at all, but is calculated to defeat its own ends. I had hoped the noble and gallant Field-Marshal beside me would have said something and spared me from making this difficult effort, but as it is I feel that somebody on these Benches ought to say a word.

My task, however, is rendered very much easier by what the noble Viscount has already said. He has said in far better words than I could use nearly everything I wished to bring forward, though there is one point which I think is not sufficiently present to the mind of laymen. In battle fear, a most unpleasant emotion, is so strong, so human, so natural, that every possible adventitious aid ought to be employed to resist it. Many of your Lordships must know quite well what it is to be lying down without having any head cover, and with nothing to do, and to be shot at. It is extremely unpleasant, and one needs to be able to draw upon every resource that one has—training, discipline, sense of responsibility and, probably, in the last resort an intelligent anticipation of what will be the result if you do not do what you ought to do. One must have these resources to draw upon, and to take away the deterrent of the death penalty is, I think, a fatal mistake. It is a lowering of the standard. By so much as you diminish the penalty you diminish the stigma upon cowardice, until one arrives at the stage of—what shall I say?—of the older Roman Empire when the poet Horace, no doubt an excellent man, could write an Ode about his running away from the battle of Philippi, which was probably read at all the dinner parties he attended.

No one who knows anything about a Court-Martial can imagine that it ever does anything except exercise the greatest consideration and clemency and careful thought. I was Provost Marshal of the Army at the Dardanelles and I had a good deal to do with Courts-Martial. There is no more human or humane tribunal in the world. Who are the accused? They are the soldiers of the officers sitting on the Court-Martial. They are almost their children. They are the men alongside wham the officers have been fighting and alongside whom they are hoping to fight for the rest of the campaign. Behind them is the confirming authority and in what used to be called a drumhead Court-Martial —a Field General Court-Martial—the necessity of unanimity. Every consideration, as the noble Viscounts upon the Cross Benches have already said, is given.

Those are the only points I wish to put before your Lordships which have not already been advanced in a very much better manner. I believe that you are not going to protect the soldier at all. You are going to jeopardise the lives of his comrades. I could mention, though I will not weary your Lordships with details, several cases from my own experience. I will only give two examples. I remember a case in China many years ago. We were fighting alongside several Allies—the incident does not relate to British soldiers. I remember in an entrenched camp which had been taken at night a piquet being put forward with a couple of sentries. The sentries went to sleep. They wore killed, and the whole piquet was massacred. That is the sort of thing that may happen. I remember a case in the Dardanelles when a line, after a very hard and miserable two days and nights, began to break, leaving the troops on either side in the air. There were two Second Lieutenants just come out from school. They were the only remaining officers. They took the law into their own hands, because it was the only thing they could do. They saved not only their own troops but the troops on either side. You must have these penalties in the last resort. I say again I do not know how this decision has been arrived at, but I do believe that it will defeat its own object and will not in any way promote that policy of peace which it is the wish of every Party in this House to preserve.


The noble Viscount, Lord FitzAlan, in a speech of great force and moderation put the case for restoring to the Army Act certain provisions which were taken out in another place. He urged the Government to reconsider their attitude in this matter. I am afraid that I must make it clear from the very beginning that that is quite impossible. No one has more respect than I have for the views of the noble Viscount or for the way in which he expresses them. I have no complaint of that, but it is quite impossible to follow his suggestion. The noble Viscount made certain references to the conduct and procedure of my right hon. friend the Secretary of State for War. If the House will bear with me I should like to explain my own position. I also acted against the advice of the Air Council. I very seldom do so, and I do so with the very greatest reluctance and with misgivings, because I find they are nearly always right. But I claim that it is part of one's responsibility to follow one's own policy and I agree with the Secretary of State for War in the line which he took with regard to the first three offences for which the death penalty was deleted. In regard to desertion I will say a few words later.

My attitude was not based on any speeches I had made in the country or on any Amendments I had moved in another place in the days of Opposition. Nor was it based on sentiment, nor do I in any way impugn the great authority of the Army Council and the Air Council. None of these feelings moved me. Having been on many Courts-Martial myself, having served for twenty-six years in the Regular Army, I should be the very last man in the world to suggest that those tribunals are not the fairest in the world. My attitude with regard to the first three offences—cowardice and those allied to it—was based upon what I conceive to be the very great difference between a modern army, and especially a modern volunteer army such as our own, and those armies for which this dreadful code of punishments was drawn up, a code of punishments which has been mitigated through the centuries. It was drawn up either for mercenary troops or for men who so nearly bordered on the criminal classes that the most stringent measures had to be employed to maintain even a semblance of order. But I submit that the difference between the class of man who sacked Badajos and the young men in our Army to-day is so great that you cannot apply the same code of laws to those two types.

I would say, I think without exaggeration, that the ordinary private soldier in the Army to-day is ten times as sensitive a human being as those soldiers were. I think I may claim that there are many aircraftsmen in the Air Force who are better educated to-day than the majority of officers were at the time of Waterloo, and I think that many of them are just as well educated as young officers were when I was a young officer. In fact I am certain that I could not pass the examinations that are being passed by aircraftsmen to-day, nor could I have done so at any time of my life. We are dealing with a totally different set of human beings. I submit that it would be impossible, unwise and, I am inclined to think, impracticable, especially if you enrol these men as a nation in arms, as conscripts in your citizen Army, to expose them to a code of laws totally different from that to which they are accustomed in private life and punish them for offences that are not really crimes of violence, just as you would mulish them for murder in a civilian State.

I propose now to deal with some of the points raised by the noble Viscount, Lord FitzAlan, and by other noble Lords who have spoken. I yield to no one in my desire to maintain a high morale in the Services and to protect soldiers from cowardly comrades, from treacherous comrades and from bad comrades. We are all agreed on that. It is an essential thing and it has to be done in one way or another. How does the situation stand with regard to these particular crimes? The noble Viscount himself drew a distinction between several of the crimes in this category. He said that there were many cases where, though technically speaking a man had been guilty of cowardice or of one crime or another, he was not really punishable with death. It was only the bad crimes that were punished with death. I hope I am quoting the noble Viscount correctly, but I am doing so entirely from memory. I think that was the sense of what he said.


My point was that in the milder cases they were not sentenced. Only the very severe cases were met with the penalty of death.


The noble Viscount says that there are mild cases and serious cases. He draws that distinction. Let me deal with the first category of crime in terms of the Army Act. That Act is a very full document. Even after we have deleted the death penalty for the crimes mentioned by the noble Viscount, there remain at the disposal of the Commander-in-Chief and the officers of his department other sections which enable very severe punishment to be dealt out to people who commit the more serious crimes in the categories mentioned. Section 7 (2) of the Army Act says that any man who— endeavours to seduce any person in any of His Majesty's military, naval, or air Forces from allegiance to His Majesty, or to persuade any person in any of His Majesty's military, naval, or air Forces to join in any mutiny or sedition —I am dealing with the first part of the section only—is still liable to the sentence of death. That covers, if I am not mistaken, the crimes mentioned in the first category and some of the more serious crimes for which generally the punishment of death used to be awarded.

I submit that, if one can catch the perpetrator of a very serious crime in any one of these cases, under any clause in the Act, it is far preferable to leave the matter there and not to enact anything under cover of which it might be possible to mete out this dreadful punishment to some poor feckless creature who had lost his head in terror but who, technically speaking, had been covered by one of the clauses that have been deleted. The noble Viscount and the noble and gallant Viscount, Lord Plumer, both spoke of the extreme leniency of Courts-Martial. I quite agree that Courts-Martial are lenient as a rule but, if I may with all respect correct the noble and gallant Viscount, if I heard him aright, I think he said that only 1 per cent. of the total sentences passed by Courts-Martial were carried out.


I said that I believed—I may not be quite correct—that in the cases of desertion that were tried by Court-Martial only 1 per cent. mere executed.


I did not understand that. As a matter of fact, 11 per cent. of the death sentences were carried out. Then I think it was the noble and gallant Viscount, Lord Plumer, who said that penal servitude means safety to the coward. I think he must have overlooked to some extent the Act that was passed during the War, the Army (Suspension of Sentences) Act. Men did not get back to safety because they had been sentenced to penal servitude for any of the crimes mentioned by Lord FitzAlan. On the contrary, some of the men who had been sentenced to death had their sentences commuted to penal servitude and were sent up to the front again. Cases occurred of men going back two and three times. They did not get back to safety because they were cowards and abandoned their comrades. They did not get back to safety if they were sentenced to penal servitude for any of the crimes mentioned by the noble Viscount. That is not what happened to them after the Army (Suspension of Sentences) Act was passed during the late War. Accordingly the deterrent existed.


Would the noble Lord say whether that Act is now in operation?


That is certainly a matter for consideration, and I will find out. Yes, I am told that the Act is still in operation. It puts a distinctly different complexion on the whole matter. I confess candidly that if, by merely committing one of these crimes, a man could get back to safety, I should take a very different view of the matter, but in point of fact he does not. As regards the deterrent effect of fear, I think it was the noble Viscount, Lord Mersey, who said that you had to do everything you could to get rid of fear on bile part of soldiers. I imagine that the noble Viscount is of opinion that fear casts out fear, because we put fear of death upon them in order that they shall not be fearful in the presence of the enemy. I do not know that I quite agree that this is a very considerable deterrent. I submit that, as regards the first three categories of offences that were deleted by the Government's own action as offences punishable by death, the morale of the Army is protected. The soldier is shielded from cowardly or treacherous comrades by the laws which you will find still remaining in the Army Act. The real effect of what was done the other day by the Government was merely to safeguard, as far as possible, the poor feckless creature, the terrified boy who behaved like a coward because he did not know what he was doing. Your real offender or bad man will be caught today in the vast majority of cases under the Army Act as it stands.

Now I come to the last offence, that of desertion. The history of the Amendment made in another place was described to us by the noble Viscount—namely, that the abolition of the death penalty for desertion was moved by a private Member and voted upon by a free vote of the House. He also pointed out that my right hon. friend the. Secretary of State for War voted for the retention of the death penalty for this offence. My right hon. friend behaved with his customary loyalty to his advisers, and I confess that in the circumstances, had been placed as he was, I should have done so too. I ask your Lordships to analyse that free vote in another place. The noble Viscount gave us the figures. Ayes, 219; Noes, 135. There were a large number of political deserters on that occasion. I do not know what penalty they should be exposed to from the Party machine, but it is certainly significant that in a free vote of the House only 135 Members of Parliament out of 615 voted for the retention of the death penalty. I admit that that has changed my view of the matter very considerably, because I submit that we cannot disregard a vote like that in this House—a free vote—no Whips put on—a very remarkable manifestation of, I will not say mawky sentiment, but a free expression of widespread feeling. Only 135 voted against the Amendment. I am not talking Party politics, because it is not a party question, but there are more than 235 Conservatives in the other House.

I am the first to admit that the offence of desertion can in certain circumstances be one of the meanest. It often is due to a man being selfish or opinionated — without that honour which should exist even among thieves — and without the spirit of comradeship he leaves his friends in the lurch. He is certainly the most contemptible of human beings, but whether that sort of moral obliquity should be punished with death seems to be an open question. I admit that soldiers ought to be protected against that, but are they entirely without protection when you remove Section 12, subsection (1), from the Army Act? I do not think so. If I may refer your Lordships again to the Army Act, I would refer you to Section 4, paragraph (6), where you will find that a man who acts like that—the really bad case, the cool, calculating, selfish person, who of malice aforethought deserts his comrades for his own advantage—is still liable to the death penalty.

The case which I have in mind is the case of a man who sat up all night playing cards, won a great deal of money, and cleared out in the morning in order to enjoy it. It is a matter of legal opinion, but I believe I am safe in saying that in the vast majority of serious, bad cases—the case of the cool, calculating, selfish man—you would get the offender under Section 4, which says that:— Every person subject to military law who commits any of the following offences; that is to say, (6) Knowingly does when on active service any act calculated to imperil the success of His Majesty's forces or any part thereof, is liable to the death penalty, if convicted. You have your deterrent there, and I fail to see why it should be so important to insist upon Section 12, subsection 1, which may cause very severe punishment, the supreme punishment, to be inflicted on a foolish person, when your really bad man is caught already under a section of the Army Act which still remains.

I have spoken at some length for the Committee stage, but I feel strongly on this subject. I know it will not have the least influence upon your Lordships if I have not reached you by any sort of argument—I have done my best to argue the case—but Lord FitzAlan knows that if he goes to a Division he will not only put the Government to inconvenience—that may be a small matter—but he might imperil the Bill, and he knows the consequences of that. I have tried to make a case to show that really the heart of the question is preserved—the vital thing that no man shall suffer because of the infamy of his comrades, if that can be avoided; it cannot always be avoided—and I have got to assure your Lordships of this, that if there is anything certain in this world it is that if your Lordships' House send the Bill back to another place this evening it will come back to you on Thursday with all these peccant sections reinserted. The noble Viscount's purpose will not have been achieved, but great inconvenience will have been caused, and if we persist in our obstinacy here we may lose the Bill, and by the 1st of next month there will be, legally speaking, no Army or Air Force in existence. It is for these reasons that I appeal to your Lordships not to vote for the Amendment.


The noble and gallant Lord who has just spoken was very anxious to put a correct picture before you of how the matter stands, and I venture to trespass upon your time for a few moments. At the outset of his speech he told us that the death penalty was a relic of the past, when soldiers were drawn, under very different circumstances, from a body politic very differently educated from that of the present day. The Army and Air Force (Annual) Act has not its roots far back in the past. It does not belong to the Napoleonic period; it does not belong to the time of the press gang. I have good authority for telling your Lordships that up to the year 1879 what was then called the Mutiny Act was passed annually, and therefore received the consideration of both Houses of Parliament year by year; and if the death penalty was preserved it was preserved because time and again, year by year, decade by decade, it was considered necessary to maintain it. It was not until 1879 that an Army Discipline (Regulation) Act was passed, and the present Act, which is brought into force by the Army and Air Force (Annual) Act each year, is the Act of 1881.


I did not say these Army Acts existed in the Napoleonic war period. What I did say was that these punishments existed. They were codified later on.


I quite agree with the noble Lord; it is exactly that which I have got up to refute. The point he made was that these punishments were started and have been maintained from a long distant past and that they have been a survival during a long period of years. My point is that year by year—each year and every year—these punishments have been reconsidered by both Houses of Parliament, and each year enforced; and the difference between the noble Lord and myself is plain. He regards this punishment as archaic and long-standing—one that may and ought now to be removed because the circumstances are so completely different from those At the time when it was originally imposed, and apparently by inadvertence left standing. My object is to explain that both Houses of Parliament have in successive years reconsidered this penalty and left it standing, and that as recently as 1881 the Army Act was passed, which is brought into force year by year by the passing of the Army and Air Force (Annual) Act.

There is one more point I want to make plain. The noble Lord said your Lordships might rely upon Section 4 (6), relating to a person subject to military law who knowingly does when on active service any act calculated to imperil the success of His Majesty's Forces or any part thereof. If I remember rightly he gave us a picture of a mean contemptible man on whom the death penalty might be deservedly imposed—a man who sat up late at night taking by his skill money from his associates, and desiring to have an opportunity of spending it for his own enjoyment, while the others went forward at a subsequent command—let us say given in the early morning of the next day—to fight for their country and offer their lives to the enemy. Let us see whether that mean and contemptible man would be a man who "knowingly does on active service an act calculated to imperil the success of His Majesty's Forces or any part thereof." I feel myself that if any one appeared as the prisoner's friend he would have very little difficulty indeed in showing that the mere absence of this one man bent on self-enjoyment did not in any way imperil the success of His Majesty's Forces who might be asked to advance over a long line against the enemy. Your Lordships may do what you like with your eyes open, but I feel bound to advise you that if you rely on paragraph (6) you are relying upon a paragraph which is valuable no doubt when there has been a word of command given, and when you can bring home to a soldier that he has done something which will imperil the success of His Majesty's Forces, but it is a very difficult thing to bring that home to an individual unit in the circumstances suggested.

The noble Lord appealed, not once, nor twice, to your Lordships' feelings when he asked you to consider the case of a poor boy who, not being a hardened soldier, has perhaps shown some cowardice when his common sense and stability have hardly had time to mature. Are we not to accept the advice of the Field-Marshals who have spoken to your Lordships to-day? Is it in a case of that sort that the extreme penalty is imposed and carried out? I had thought we had had from the noble Viscount, Lord Plumer, a statement that in every Court-Marshal mercy was not absent, that there was the greatest reluctance, first of all, to convict, and finally, by those who have the responsibility, the greatest reluctance to carry out the sentence; and that it was not in the case of some unripe, ill-conditioned boy who had failed to exercise the highest qualities of a soldier that the death penalty was imposed. It was only in those cases where the revising officer felt it impossible to find an excuse. In that case, and that case only, was the death penalty actually carried into effect.


I am quite certain that every one of your Lordships approaches this subject under a great feeling of responsibility. The infliction of death is horrible. Every one of us must feel that. And yet those of us who have lived through the Great War must realise that any Ministers who advise a great war, or indeed any war, have contemplated that there must be, and are, reasons which justify the infliction of death, otherwise war would be impossible. Therefore although, as I say, we must all of us feel reluctant to vote in favour in any circumstances of the infliction of the punishment of death, yet we must steel ourselves not to be misled by any feeling of sentiment which is not justified.

I confess I was not very much struck by the arguments used by the noble Lord the Secretary of State for Air. As I understood him, he did not contest the fact that there were certain offences for which the penalty of death ought to be inflicted. On the contrary, what he sought to show was that, notwithstanding the existence of Clause 5 in the Bill, for all offences for which the death penalty ought to be inflicted it could still be inflicted under the Army Act. I do not know whether that point of view was brought prominently before the House of Commons. I certainly had not gathered that they had passed the Bill in the belief that for all justifiable reasons the punishment of death in respect of these offences was still maintained. Really it is better not to be misled, if I may use the phrase, by such refinements. We have a simple issue. Certain offences are recited in the clauses of the Army Act. Are we to say that they are still to be punishable by death or are we not? The fact that the obvious intention can be got round by calling in aid some other clauses of the Army Act appears to me not to be a reasonable argument to use.

Let us approach the thing quite straight and direct. Do we want it or do we not want it? Do we think it ought to be or do we think it ought not to be? The fact that it can be manœuvred by some other clause in the Army Act is not one which ought, I think, to detain your Lordships. Then the issue is simple. We have it from my noble friend who moved this Amendment, and that, of course, was confirmed by others of great authority, that in point of fact the penalty of death is not inflicted except in heinous cases. We may rely upon that, surely. Why should we doubt it? The noble Lord the Secretary of State for Air seemed to think that there was some point in making the thing verbally impossible. That is not the way. We trust those who carry out great authority as servants of this country, and when we are told by officers in high command that this terrible penalty is not inflicted except in heinous cases we believe them, and we ask your Lordships to act accordingly. I have said "authority," and that really is the greatest argument to submit to your Lordships.

Many of us have no technical opinion upon this subject worthy of the name; but we have the great advantage in your Lordships' House, an advantage not possessed in another place, of having to advise us officers of the greatest distinction, who have all the experience of the Great War and of high command in the Great War and have been put into your Lordships' House, if I may say so, for the essential purpose of advising us upon these particular questions. It would be indeed a very strong measure if, upon a matter of this kind, Parliament were to ignore the authority of the Army Council and of the Air Council too, as I understand. But I do not think that the reasons of the Army Council were given in another place. They have no audience in Parliament. But we are different. The great commanders are actually members of our House. We can hear them and see them, and hear the conviction with which they tell us that without these particular provisions of the law the maintenance of the morale and the discipline of the Army would be impossible. Without treating this as a Party question for a moment, I would ask your Lordships how we can refuse to accept the authority of these distinguished officers. The noble Lord says: "Just think what the House of Commons say"—


I did not say that.


No. To be quite frank he said how striking it was that the House of Commons by a large majority had inserted subsection (3) in the clause. Yes, but the House of Commons had not the opportunity that we have had of hearing these officers in high command, and speaking almost judicially, if I may venture to assume such a rôle for a moment, I do not see how we can refuse to accept the weight of authority which is put before us. Therefore, though not in any Party sense or with any intention of making a Party point or asking for a Party Division, I must say for my part that I can do nothing else but advise your Lordships to accept the advice which has been tendered by those who are qualified by great authority and great experience to pronounce an opinion.


I am sure we all feel the great responsibility to which the noble Marquess has referred. I only rise to say a word or two because I think that the noble and learned Lord, Lord Hanworth, and the noble Marquess have really not understood the weight and importance of the arguments addressed to your Lordships by the Secretary of State for Air. First of all, with regard to what was said by Lord Han worth, I will not argue in this House a mere legal question as to how far the other provisions of the Army (Annual) Bill may extend to matters which are wilful desertion, though I think they go very far in that direction. I think the noble and learned Lord entirely misunderstood the argument of my noble friend Lord Thomson. What the noble Lord said was that punishments which were fairly applicable in the old days of a 'standing Army—I think he went back to Napoleonic times—could not properly be administered in a citizen conscript Army, having regard to the different character of the soldier in the two cases. There is no doubt that the punishments we are dealing with to-day are a survival of the punishments of old times. It is not a matter as to whether you have an Army Act or not, although I hope from time to time that, as we are doing to-day, the question may be considered. That is not the question. These punishments are, in truth and in fact, a survival of the punishments applicable to the old-time soldier to whom my noble friend has referred, and are quite inapplicable to the modern volunteer or conscript, such as took a great part in the late War and are likely to take the greatest part in any future war.

With regard to what the noble Marquess said, I should like to say that I really cannot understand the logic of his argument. If we are to have the death penalty—and there is no question that for certain purposes the death penalty is preserved—surely the condition should be that the times and occasions on which that death penalty could be imposed should be very clearly defined, and his argument comes to this, that because in some cases the death penalty may be the right penalty, therefore let us preserve it in the case of what is called here and was called in the House of Commons simple desertion. It is not a question as to whether, under the conditions to which the noble Lord referred, the offender should be tried or not, but whether having regard to modern conditions, in the case of what has been called a feckless youth he ought not to be subject to the possibility of being charged with such an offence. It is a monstrous thing to my mind that such a penalty should be asked for in such cases. It may be quite true—I am not questioning that—that such a person as the noble and gallant Viscount, Lord Allenby, may be presiding over a Court-Martial, but I contend that such a case ought not to be before the Court-Martial at all on the question of a death penalty. I want the noble Marquess to consider this. With the great responsibility of the death penalty for an offence, surely the nature of that offence ought to be clearly defined, and if the noble Marquess thinks, as I understood he did, or at any rate partially so, that the death penalty for desertion is not a penalty which, under what I call these modern conditions, should be employed, then the only way in which you can make certain of that view being carried out is by introducing the Amendments which are at present in the Army Bill.


I do not know whether the noble and learned Lord thinks I said so, but I did not say desertion was one of the offences for which the death penalty ought not to be inflicted. On the contrary it may be of such a heinous character that it ought to be inflicted.


That surely is the difference between us and is the very point which the noble Lord, Lord Thom son, argued with so much ability. Certainly in heinous offences I do not deny that, but what you are doing in this Amendment is to preserve the death penalty in all cases of simple desertion and to make the deserter subject to be condemned to it by a particular Court-Martial. As to the other point which my noble friend Lord Thomson made, it is quite clear that for a number of offences the death penalty will remain in the Army Act. I should think that it covers all the cases which the noble Marquess had in his mind. It is retained for offences under the head of treachery or assisting the enemy; offences calculated to imperil the success of His Majesty's Forces; mutiny or incitement to mutiny, whether on active service or not. Those matters were all discussed in the other House. I do not want to get into a legal discussion because, after all, each case depends upon its particular facts, but so long as you have some desertion which may come from nervousness or fecklessness, or ether motive of that kind, which is in

Resolved in the negative and Amendment agreed to accordingly. Remaining clauses agreed to.

First Schedule agreed to.

Second Schedule: