HL Deb 18 January 1944 vol 130 cc422-33

THE DUKE OF BEDFORD rose to call attention to the continuation of cat-and-mouse treatment of conscientious objectors, with special reference to practices which deprive them of the measure of protection which, under the National Service (Armed Forces) Acts of 1939 and 1941, it is intended that they should receive; and to move for Papers. The noble Duke said: My Lords, although I am afraid that previous experience has sometimes tempted me to feel that your Lordships are as indifferent to acts of tyranny and injustice committed by your own Government as you are sensitive to those committed by the Governments of hostile nations, hoping that in this rather harsh judgment I may be mistaken, I wish again to bring to your notice the continued persecution of conscientious objectors, particularly by so-called cat-and-mouse treatment.

With regard to conscientious objection to military service, Section 13 of the National Service (Armed Forces) Act, 1939, lays it down that: If a person who has made application for registration as a conscientious objector but who has nevertheless been called up under this Act for service, is undergoing a sentence of penal servitude or imprisonment for a term of three months or more imposed on him by a Court Martial in respect of an offence which he claims to have been committed by reason of his conscientiously objecting to performing military service …. he may apply to have his case considered by the Appellate Tribunal.

Notwithstanding this regulation, Courts Martial still sometimes award sentences of military detention which do not give to conscientious objectors the right to appear before an Appellate Tribunal. In fairness, I think, I ought to say that this objectionable treatment seems to have decreased considerably during the last month or two, though it is still not completely at an end. It is, I may say, obviously contrary to the spirit of the King's Regulations, paragraph 668 (a) of which states: When passing sentence, a Court Martial will have regard not only to the nature and degree of the offence and the previous character of the accused, as proved in evidence, but also to the nature and amount of any such consequences as, by virtue of any statute, warrant, order or regulation, are involved in their finding, or entailed by their sentence, in addition to the punishment awarded by the court. It is obvious that when the conscientious objector gets a sentence of military detention the nature of that sentence exposes him almost inevitably to a further sentence of detention if he again, for conscientious reasons, disobeys a military command.

When I brought this matter to the attention of the War Office some time ago, they told me that they had no right to direct Courts Martial as to what sentences they should impose. It may be perfectly true that they have no right to give orders to Courts Martial with regard to the sentences that they impose, but, surely, they have both a right and a duty to see that the sentence, whatever it may be, is in accordance with the spirit and intention of the law. There is in this connexion a very important precedent from the last war. It is laid down by Army Order 10 of the 25th May, 1916, concerning offences against discipline: (1) With reference to paragraph 583 (xi) of the King's Regulations, where an offence against discipline has been committed, and the accused soldier represents that the offence was the result of conscientious objection to military service, imprisonment, and not detention, should be awarded. (2) A soldier, who is sentenced to imprisonment for an offence against discipline, which was represented by the soldier at his trial to have been the result of a conscientious objection, will be committed to the nearest public civil prison…. This Order was published officially in The Times of Saturday, May 27, 1916.

There was a full debate about it in another place on May 29, 1916 when ques- tions were asked concerning it by Mr. E. Harvey, Mr. P. Morrell and Mr. Whitehouse. Mr. Whitehouse asked: Has not an Order been issued by the War Office, and published in The Times on Saturday, stating that conscientious objectors who are under sentence will be transferred to civil prisons in this country …? Mr. Tennant admitted the existence of this Order, in his reply, by stating that nothing would be done in contravention of it. Further questions about the Order were asked in another place on various occasions, including July 10, 1916, when Mr. Forster, the Financial Secretary to the War Office, explained the matter very clearly and fully, and stated that there had been no cases of detention of conscientious objectors in the Army since this Order had been fully circulated. All I ask is that this Order should again be put into operation, and I should like to make one further minor request in connexion with it. That further request is that, if possible, in the report of these proceedings, the Order should be circulated, as when one applies for it to His Majesty's Stationery Office one is told, not that it is out of print or that it does not exist, but that it is not available. I may say that I am quite aware that the War Office can, if they choose, after a conscientious objector has served two or more sentences of military detention, discharge Mm as unlikely to become an efficient soldier. That power they would still retain if my suggestion were adopted, and the conscientious objector were turned down by the Tribunal. But my aim is that he should be spared, if possible, all this preliminary persecution.

I desire to bring to your Lordships' notice one or two particularly bad cases of cat-and-mouse treatment. The first relates to a man named Hately in the Air Force. Hately has been undergoing persecution for about two and a half years. His first Court. Martial sentenced him to six months' detention; his second to nine months' detention; his third to six months' imprisonment; his fourth to one year's detention. During this period he was sent abroad for a considerable time, and, in all, he has suffered nine months' solitary confinement, close confinement for long periods, and a bread and water diet on numerous occasions. It is to be hoped, however, that some consideration is, at last, being shown him as he has now been released from detention, and is to be allowed to go before the Tribunal at the end of the month. Another case is that of Harold Johnson, who was called-up for full military service. His first Court Martial gave him four months' imprisonment, and the Appellate Tribunal dismissed his claim. His second Court Martial gave him twelve months' imprisonment, and the Appellate Tribunal again dismissed his claim. His third Court Martial gave him eighteen months' detention. There was no right of appeal to the Appellate Tribunal, but his continual refusal to obey military orders while in detention gave him another Court Martial, which imposed a sentence of three years' penal servitude. This gave him the right to go before the Appellate Tribunal, and his case was. heard on January 12, 1944, when at last he was conditionally registered as a conscientious objector with a wide range of conditions. G. S. Cooper was called up for military service. His first Court Martial gave him eighteen days' detention, his second fifty-six days and his third one hundred and twelve days, which was suspended after one month. His fourth Court Martial gave him three months' imprisonment. This gave him at last the right to go before the Appellate Tribunal, and he was conditionally registered as a conscientious objector.

There is one other case which I should like to mention because I know the man personally. Although it is not as bad a case as that of some of those who have had cat-and-mouse treatment, it is a particularly stupid case in view of the fact that the man is an ex-miner, and I have every reason to believe would return to the pits if he were released from the Army. Owing to his wife's dangerous illness and one or two other complications, at one period he wavered somewhat in his conscientious objection, and this has been taken by unimaginative persons to indicate that he is not genuine. Personally I am convinced—and so are many other people who know him—that he is a perfectly genuine political conscientious objector. He was first given a sentence of military detention, and whilst serving that sentence he was sent to the military mental hospital at Lanark, where I saw him. He was a perfectly sane individual, with a well-developed sense of humour. I spoke about the case to the medical officer in charge of the place, and he said that one must assume that people who hold minority views, while not necessarily actually insane, were at any rate borderline cases. I am afraid that I went away with the conviction that the medical officer might himself have profited by a period of treatment in his own institution.

As I have just suggested, the fact that a man has the right to appear before an Appellate Tribunal is, unfortunately, no absolute guarantee that he will be recognized as a conscientious objector, even though he be sincere. Owing to the very unfortunate composition of some tribunals, where a great deal of prejudice exists, sincere conscientious objectors are quite frequently turned down. I suggested a remedy for this state of affairs when I last spoke on this matter in this House, but my remedy was turned down. Only the other day another example of unfair and inconsistent treatment by the president of a tribunal came to my notice. Some time ago Judge Burgis, who presides over the North-Western Tribunal, had to deal with two conscientious objectors who were brothers and the sons of pacifist parents. When the elder brother came before him, the Judge appears to have been in a good humour. He gave the young man a patient hearing, and said in his summing up that this young man had evidently been inspired by his parents with pacifist ideals, and gave him unconditional exemption. Some time later, however, the younger brother, who is equally genuine and sincere, came before the same tribunal. The Judge from the beginning of the proceedings appeared to be very irritable, and said in his summing up that the young man had evidently been dominated by a pacifist father and a pacifist mother, and he turned him down, with the result that this young man was later sent to prison. We are asked to believe, therefore, that in the case of one son the parents inspired him with pacifist ideals, while in the case of the other they dominated him with their own ideas, so that he had no genuine convictions of his own at all.

It is also noticeable that, as the war goes on, the percentage of claimants for total exemption who receive total exemption becomes less and less. It is not reasonable to suppose that the percentage of genuine claimants for total exemption has altered materially, so that one can only conclude that tribunals, acting under Government pressure, are treating an increasing percentage of claimants for total exemption with injustice. Owing to the obstinate refusal of the Government to recognize conscientious objection to industrial conscription and to fire-watching, the persecution of high-principled men and women by heavy fines and sentences of imprisonment continues. Up to October 31, 1943, 263 men and 20b women claiming conscientious objection have been prosecuted for failure to comply with Ministry of Labour directions to interview or to work, and the great majority have gone to prison. In regard to fire-watching, repeated prosecutions for failure to fire-watch on conscientious grounds include thirty-four men and five women who have been prosecuted twice, thirteen men and one woman who have been prosecuted three times, tour men who have been prosecuted four-times, and one man who has been prosecuted no fewer than seven times. This is the well known case of George Elphick, of Lewes, who is a carpenter, an active member of the Church of England, a Christian Pacifist and local secretary of the Fellow-shop of Reconciliation. He has an excellent character, and many persons have testified to his sincerity, including the bench who convicted him. He is now, I believe, going to be prosecuted for the eighth time.

To mention one or two other cases, Miss Florence Haynes, aged 43, has been imprisoned three times within six months for refusing to fire-watch on conscientious grounds. Councillor Charles Earl, aged 55, of Farncombe, has been twice in prison for a term of two months for refusing to fire-watch. Mr. Lawrence Tarr, of Hornchurch, aged 60, a Quaker and unconditionally registered as a conscientious objector in the last war, has been imprisoned for three months for refusal to fire-watch on conscientious grounds. He was prosecuted three times before this and fined each time, but these fines were paid anonymously.

About the only good thing which has come out of this disgraceful persecution has been that it has revealed the very bad conditions which the Home Office have allowed to exist in a good many of our prisons. When I mentioned this matter in my last speech I was told that everything in the prison garden was lovely, but it has since been abundantly proved that everything in the prison garden was not lovely, and I believe that certain changes have already been made. In some cases the food has been inadequate, badly cooked and extremely dirty. The sanitary accommodation has been disgustingly inadequate and often out of repair. Medical attention has been quite inadequate. Prisoners ringing their bells at night on account of serious illness have been ignored by the warders. The bedding and clothing provided have been dirty and inadequate. In the vast majority of cases, war conditions are no excuse for this state of affairs. It would seem that Government officials, when visiting prisons, see only what they are supposed to see, and if they hear that according to the prison regulations certain things are provided they conclude that they must be provided, whereas in point of fact they are not provided or are provided only on the rarest occasions.

I have no hesitation in saying that as long as this persecution of high-principled men and women is allowed to continue, it is nonsense for the Prime Minister to say that victimization and man-hunting are odious to the British people. It is all too obvious that victimization and man-hunting are very agreeable to a considerable section of the British people, including members of tribunals and Members of Parliament. There is another vice which ought to be odious to the British people, and that is hypocrisy, but unfortunately hypocrisy flourishes in war-time like a stinging nettle growing rankly on a dunghill. We are trying by war to remove the evils of Fascism from continental countries, while all the time these evils grow greater in our own. I beg to move.


My Lords, the terms of the Motion of the noble Duke are somewhat vague, but in general they bring an accusation that conscientious objectors have been deprived of their rights under what is described by the noble Duke as cat-and-mouse treatment. I think your Lordships will agree that, judged by the actual terms of the Motion, the speech to which we have just listened went far wider and covered more general ground. If the noble Duke had given me notice I should have been only too pleased to look into the various cases to which he has referred, not only those under the War Office but those under other Ministries; but as he gave me no notice that he was raising those particular cases, I of course am quite unable to give your Lordships any information about them. I think it would be more appropriate, perhaps, if I did not attempt to answer what happened in debates in 1914 and 1916, out put before your Lordships what is the present procedure and how it has been arrived at.

No man (or woman) is called up under the National Service Acts without being given an opportunity to register as a conscientious objector. All persons registered as conscientious objectors have to state a case to an independent statutory tribunal from whose decision there is an unrestricted right of appeal to the Appellate Tribunal. These tribunals may register a man as a conscientious objector without conditions or on condition that he undertakes specified useful civilian work under civilian control. The work selected is never closely connected with the military side of the war effort; that is, the individual is not required to undertake work in munitions. On the whole there is little difficulty over these cases. Further, the tribunals may register a man as a conscientious objector with the liability to be called up for the Forces in a non-combatant capacity or they may order that the man's name should be removed from the register of conscientious objectors. Such a man is liable under the National Service Acts to attend for medical examination as a preliminary to being called up into the Forces. If he refuses, he is prosecuted, and magistrates have been found in practice to award substantial sentences of imprisonment in such cases. When such men have served their sentences they are still legally liable to be summoned to attend for medical examination but in practice they are instead directed to do useful civilian work. The Ministry of Labour is not aware that such men, who are liable to be called up under the National Service Acts, have been subjected to anything of the nature of cat-and-mouse treatment either by being summoned repeatedly to be medically examined or by being directed repeatedly to undertake civilian work which they refuse to do. Those who are medically examined and who are found to be lit then enter the Forces, in accordance with the decision reached in each case by the tribunals, either for non-combatant service or for general service.

During the last war numerous cases occurred of such men being repeatedly tried by Court Martial and sentenced for offences which they claimed to have committed on grounds of conscience. It was then that this chain of events came to be known as cat-and-mouse procedure. When in 1939 the need arose once more to provide machinery for dealing with conscientious objectors in connexion with the Military Training Bill a Government Amendment was moved in your Lordships' House on 24th May which eventually took the form of Section 14 of the Military Training Act, 1939. The principle of that section was to provide a right of appeal to the Appellate Tribunal for a person in the Service who had received a sentence of three or more months' imprisonment for an offence which he claimed had been committed on grounds of conscience. The sentence has since come to be known as the "qualifying sentence." At first the term was put at six months, but in course of debate it was reduced to three months. In moving the reduction of the qualifying sentence from six months' to three months' imprisonment the Lord Chancellor said: The main object of the clause was, I think, to prevent a cat-and-mouse arrangement of the sort which was found so unsatisfactory and was objected to so strongly during the last war. The same provision was inserted in Section 13 of the National Service (Armed Forces) Act, 1939, and has been in operation during the war in relation to men called up under that Act.

It was clear from the outset that there were two possibilities which would make the arrangement ineffective as a certain check on cat-and-mouse procedure in all cases. One was the possibility that Courts Martial would award sentences which failed to qualify for an appeal, either because the term of imprisonment was less than the qualifying period of three months, or because the kind of punishment (detention) failed to qualify. Secondly, if a qualifying sentence were awarded, there was the possibility that the man would repeatedly fail to convince the Appellate Tribunal and that the tribunal would repeatedly reject his appeal. Experience during the war has shown that both these possibilities have materialized, sometimes in combination in the history of an individual case. But, it should be emphasized, the proportion of such cases has been very small indeed.

As regards the first possibility I have mentioned the offender in such a case appears before the Court Martial as an ordinary soldier who has committed an ordinary military offence, usually disobeying a lawful command. In order that the effect of the sentence on a man's right of appeal to the Tribunal might not be overlooked, the War Office issued instructions as early as December, 1939, making it clear that in cases of the kind in question Courts Martial need not hesitate to pass qualifying sentences. Since then these instructions have been repeated and supplemented and there is very little evidence to-day of any tendency to award non-qualifying sentences. But it must be borne in mind that the War Office cannot completely fetter the judicial discretion of the Courts Martial and other military authorities concerned. As regards the second possibility, that of repeated rejections of appeals by the Appellate Tribunal, that is entirely a matter for that Tribunal, and its discretion also obviously could not be fettered. Here I may say that I regret that an attack should have been made upon the Appellate Tribunals and that even one name was mentioned in the course of debate. That seems to me to be most unfortunate as these tribunals have been set up by Parliament and have, as we all know, given enormous pains and care to this prolonged work, to the general satisfaction, I think it may be said, of the nation.

To illustrate the generally lenient attitude which has been adopted by the administrative authorities in this war towards men claiming conscientious objection, two important concessions have been made which are not provided for by law. First, the National Service Act provides that a man serving a sentence awarded by Court Martial who is recommended for discharge by a Tribunal shall be discharged "as soon as may be after serving the sentence imposed on him." But in practice such a man is discharged at once, and any unexpired part of the sentence is remitted. Secondly, there are men who become conscientious objectors while they are in the Forces and who receive a sentence of over three months' imprisonment for, say, refusing to obey a military order. They have no statutory right of appeal to a tribunal. The Appellate Tribunal, however, declared itself ready to consider these cases in an advisory capacity and the men concerned have been permitted to appeal to it in that capacity. If the Tribunal advises the Service Department concerned that had the man applied under Section 13 of the National Service Act before joining the Service he would not have been called up into the Armed Forces, he is invariably discharged.

The National Service Acts and these measures which have supplemented the provisions of those Acts have on the whole been successful and there is now no real problem awaiting a solution. The number of men now in custody for offences claimed to have been committed on grounds of conscience who have failed to obtain any right of appeal at all under Section 13 of the National Service Act is very small, if there are any such cases at all.

A further measure which has been suggested is that a sentence of three months' or more detention should be made a qualifying sentence in the same way as three or more months' imprisonment. This would not have any considerable effect, unless there was evidence that sentences of three or more months' detention were being frequently awarded instead of imprisonment, in order to prevent rights of appeal under Section 13 as it stands. As I have already pointed out, there is no evidence to-day of any such tendency. Further, the remedy would almost certainly have undesirable results. If, as is in practice most unlikely, a Court Martial were minded to defeat a man's right of appeal, it could still award a non-qualifying sentence of less than three months' imprisonment or detention, with a resulting increased frequency of Courts Martial and punishment in a given case. If, on the other hand, the Court Martial were inclined to clemency, it would probably award a qualifying sentence of detention as being less severe than a qualifying sentence of imprisonment. The result would be an increase in the number of men sent to detention barracks instead of civil prisons. This would be unpalatable to most, if not all, of the men concerned, as well as to the military authorities. Thirdly, though there might be slightly greater certainty of earning a right of application, that is not to say that the Appellate Tribunal would necessarily recognize the man to be a conscientious objector. The tribunals have been set up by Parliament to judge the sincerity of these men and very liberal rights of approach to them have been provided. Their discretion in dealing with these cases cannot be fettered and it is clear that they may not reach the same conclusions on a given case as the noble Duke, the Duke of Bedford, or any individual concerned.

I think I have said enough to show that the whole case of the conscientious objector was given every support by Parliament when the matter came up again at the beginning of this war, and your Lordships will agree that under the Act of 1939, and also that of 1941, we have done everything possible. I am surprised that there should be any attack on the administration. because, I feel sure, there is no country in the world where such wide steps have been taken to see that every fairness under the law is given to those concerned.

On Question, Motion for Papers negatived.