HL Deb 22 April 1952 vol 176 cc253-67

3.0 p.m.

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

THE SECRETARY OF STATE FOR AIR (LORD DE L'ISLE AND DUDLEY)

My Lords, I beg to move that the House do now resolve itself into Committee on the Bill.

Moved, That the House do now resolve itself into Committee.—(Lord De L'Isle and Dudley.)

VISCOUNT STANSGATE

My Lords, I understand that it is possible to speak on this Motion. As, by general consent, we did not speak on this topic on Second Reading but devoted the day then to the discussion of other matters, perhaps I might use this, which is the only general occasion in the debate, to ask the noble Lord in charge of the Bill one or two questions, the answers to which may well much facilitate our proceedings this afternoon. As I remember, this Bill is a very old Bill. No one has looked at it, from the point of view of amendment, for many years. All past Governments alike have been in default in not putting it into proper shape. Now the attempt is being made, and I am sure that everybody applauds it. It was quite apparent during the debates in another place that there was inadequate time for the Bill to be properly considered by the Houses of Parliament.

This is a Bill with a date—it must pass before April 30—and in view of that difficulty it was decided in another place to set up a Select Committee, which I think was the common-sense way to deal with this matter. At the same time, the fact that they made that decision does not in the least absolve this House from its legislative duty to examine the details of the Bill and its effect upon the citizens of this country who may go into the Army under the Act. Therefore, from the earliest time when this Bill was introduced into the House, I have endeavoured to get from the Government an answer to this simple question: Is this House to be joined with the Committee in the examination of this Bill, so that the details can be considered quietly and with all the expert knowledge that we need, or have we to discuss it in Committee, as we shall do shortly, and do the best we can there? If the Government are able to say that the Bill will be considered, either by a Committee of our own House or by a Joint Select Committee, we shall be able to discharge our duty in that way, and I need explain only in a word or two what my Amendments mean. If, on the other hand, we do not have a Select Committee, then I do not know quite what to do. I can point out some of the very serious issues which I consider are raised by this Bill and I shall be absolved of any dereliction of my duty as a member of this House in that matter.

A statement from the noble Lord in charge of the Bill that we are to join with the Committee of another place, or that we are to have our own Committee, would be quite satisfactory and, I believe, would be much the best way of proceeding. If, on the other hand, the noble Lord says "No," then I shall ask the Lord Chairman to call on my Amendments and I shall explain briefly what they mean. If the noble Lord will allow me, let me make this plain—I know something about this because I have served on Select Committees in another place. A Select Committee in another place is very much a matter with which we have nothing to do. Noble Lords are entitled to attend a Select Committee in another place only as "strangers." If any member of the Committee asks the Chairman of the Committee to exclude "strangers," then noble Lords are bundled out into the corridor, together with other strangers from the public, and are excluded from the proceedings of the Committee. It is a very good way of conducting business from the point of view of another place, but from our point of view, unless some joint effort is made, I do not think we are doing the task which we have been set. Therefore, the only I reason why I raise this general question (I understand that I am in order) is to ask the noble Lord in charge of the Bill whether he can give us some information about the opportunity which members of this House will have to deal with the complicated details of this antiquated Bill.

LORD DE L'ISLE AND DUDLEY

My Lords, I think the noble Viscount, Lord Stansgate, has put the position very clearly and fairly. I wish I could immediately give him the assurance for which he asks about a Joint Select Committee. He put the argument for such a Committee with great clarity and force. I find myself in complete agreement with the way in which he has advanced it. But I should be lacking in candour if I said that at this moment there was complete agreement between the two main Parties in the State (I am not talking about this House) upon a Joint Select Committee. I do not know whether it would be improper for me to suggest that the noble Viscount should use his persuasive powers on some of his colleagues in another place, because I quite agree that, if one House sets up a Select Committee on this very important Bill, the other House—in this case, the House of Lords—cannot be bound by the Report of that Committee.

VISCOUNT STANSGATE

It might have its own Committee.

LORD DE L'ISLE AND DUDLEY

There are disadvantages in having separate Committees, as anybody will see; but, of course, if the other House set up their Select Committee, we should not be inhibited thereby from setting up our own. I have hopes that what I call reason will prevail and that it will be possible to have a Joint Select Committee, but I should be misleading the noble Viscount if I invited him not to move his Amendments to-day in the certainty that such a Committee would come about, although, of course, I hope it will. Therefore I must leave it to the noble Viscount's discretion to decide whether he will move his Amendments. I can assure him that my colleagues and I will, to the best of our ability, answer the points he makes. There are matters which ought to be considered by a Joint Select Committee, who ought to go into the Bill in detail, as we all agree; but, again I must not mislead the noble Viscount into withdrawing his Amendments without giving him a corresponding guarantee, which I cannot at this moment give.

VISCOUNT BRIDGEMAN

My Lords. I should like to say that I am in full agreement with the arguments used by the noble Viscount, Lord Stansgate, as they apply to a Joint Select Committee. I confess that I feel that the appointment of two separate Committees would have all the disadvantages which my noble friend has pointed out. I hope that the argument in favour of a Joint Select Committee of both Houses will in the end prevail.

VISCOUNT STANSGATE

My Lords I have no right to speak again. I was merely speaking on the Question the Chair.

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DROGHEDA in the Chair]

Clause 1 [Short Title]:

On Question, Whether Clause 1 shall stand part of the Bill?

VISCOUNT STANSGATE

Perhaps this is the right point for me to raise a question I had in mind. Is it correct to describe this as an "Annual Bill" when it is to last for fifteen months?

LORD DE L'ISLE AND DUDLEY

Noble Lords will notice that, purely and logically, the noble Viscount is possibly right, that it should, for this year, be called whatever is the Latin name for "fifteen months"—which at the moment I do not know. I think I am in order in speaking on it. My noble and learned friend the Lord Chancellor points out, I am sure very justly, that an Annual Bill is a Bill which comes in once a year and not necessarily once every twelve months within the calendar year—so perhaps that absolves me from my difficulty. On Clause 2 we shall be discussing an Amendment on that point, and, further, I have an Amendment down amending the title of the Bill, if the noble Viscount would like to discuss the point on those two Amendments.

VISCOUNT STANSGATE

No, I have not the least desire to debate the point. I am rather afraid of a debate on this point. It is not an Annual Bill. Mr. Asquith once said in rebutting an argument: "What I cannot face is the incurable sloppiness of the argument." I think that is a very fair description of this Bill, which was described in the title, first of all, as an annual Bill, although its duration was to be fifteen months. Then the noble Lord himself introduced an Amendment to line 36 which would have given no discipline at all to any of the Services between March and July. Then, during the Easter holidays, he discovered what he had done and put down a second Amendment. I have no comment to make on that. I have no doubt that at some time some draftsman somewhere, will put it in order. I just put that forward as some justification for watchfulness on the part of Opposition members of the House.

On Question, Clause 1 agreed to.

Clause 2:

Army Act and Air Force Act to be in force

for specified times

2.—(1) The Army Act and the Air Fore Act shall be and remain in force during the periods hereinafter mentioned, and no longer, unless otherwise provided by Parliament, that is to say:— (a) within Great Britain and Northern Ireland, the Channel Islands and the Isle of Man, from the thirtieth day of April, nineteen hundred and fifty-two, to the thirtieth day of April, nineteen hundred and fifty-three, both inclusive; and

3.11 p.m.

LORD DE L'ISLE AND DUDLEY moved, in subsection (1) (a) to leave out "thirtieth day of April" and insert "thirty-first day of July." The noble Lord said: I beg to move this Amendment, which in some measure we have already discussed. It has been said that the fact that Vote A must be agreed to by March 31, and that the present Army and Air Force (Annual) Bill must be passed by April 30 means that not long enough time is allowed for discussion. Therefore, with the object in view of extending the possible time for discussion, it is proposed to substitute for the "thirtieth day of April" the "thirty-first day of July." I hope that I shall have the concurrence of noble Lords opposite in this Amendment. I beg to move.

Amendment moved—

Page 2, line 37, leave out ("thirtieth day of April") and insert ("thirty-first day of July").—(Lord De L'Isle and Dudley.)

LORD OGMORE

There has been some slight confusion because two separate Amendments were put on the Order Paper, and now we have only one. As I understand it, the object is to make the period alike under Clause 2 (1) (a) and Clause 2 (1) (b). If I am right in that assumption, I have no objection at all to the Amendment now moved.

VISCOUNT STANSGATE

I should like to ask a question in regard to subsection (3). It may be common form and I have not had an opportunity of checking it, but what is the meaning of the words A person subject to military law … shall not be exempted … by reason only that the number of the forces for the time being… is either greater or less than the numbers hereinbefore mentioned."? Those numbers are mentioned in the preamble.

THE CHAIRMAN OF COMMITTEES

I think we ought first to dispose of the Amendment before the Committee. Then perhaps the noble Viscount would raise his point when I put the Question, that the clause stand part of the Bill.

On Question, Amendment agreed to.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

VISCOUNT STANSGATE

Now is the correct time to ask this question. It may be common form (I do nit know, and there are much greater experts in this House than I), but it appeared to me that the control exercised by the public over the Armed Forces took two forms. First, there is Vote A and Vote 1 which are controlled by another place and which, of course, are the outcome of civil war. Then there is the Army and Air Force (Annual) Bill, which I suppose derives from the Bill of Rights, and which, I understand, imposes discipline for one year upon a number of men who have been voted an amount of money by another place. Then, on reading the Bill, I observe that, even though the Army is greater than the number for which provision has been made, the discipline is to be the same. I do not understand what the words mean. It seems to be a provision inserted by legal experts to be on the safe side. No doubt the noble Lord can explain. It may well he that it is in accord with precedent.

LORD DE L'ISLE AND DUDLEY

This is well in accord with precedent, and I have no doubt that the noble Viscount is right in saying that it was put in by legal experts to be on the safe side. The number of men who are kept under arms is stated precisely as 550,000. If, as sometimes happens, the number recruited actually exceeds that figure before the Supplementary Estimate is brought in under Vote A, we shall still want the Forces to be disciplined. It seems to me that this is a reasonable provision, and I do not think noble Lords opposite who have served in the Service Ministries will have any recollection that it has been abused.

Clause 2, as amended, agreed to.

Clause 3 [Amendment of definition of "active service"]:

On Question, Whether Clause 3 shall part of the Bill?

VISCOUNT STANSGATE

This, of course, is the most difficult of all the clauses in this Bill. I have put down an Amendment to Clause 6 dealing with punishment for offences on active service. I am not really qualified to explain it; it requires great legal skill. But I think this House should take it carefully into consideration. In the first place, we now have many more people in the Army. Practically the whole of the nation passes through the Army. I was surprised when I was told by a Member of another place that at public meetings taking place now, the keenest interest is being displayed in regard to the conditions and the possible punishments which may fall upon these boys who are being drawn in as National Service recruits. Therefore it behoves us to be extremely careful that we revise this Bill in a way suitable to modern conditions.

Here, of course, I am speaking purely as a layman. The most important difference in punishment is that between the man who is on "active service," as we always understood it—meaning "in the face of the enemy," and the man who is serving before the war emergency, or whatever the right legal term is, has occurred. All this has become extremely obscure in Clause 3. On reading that clause in conjunction with Section 189 of the Army Act, I think most noble Lords would join with me in begging the Lord Chancellor to give us a clear exposition of the whole position. Suppose a man on active service is drunk, or asleep as a sentry, that is a very serious offence, and is actually punishable by death. But if a man is asleep when he happens to be on duty somewhere else, it is a slight offence. Equally, if a man is drunk in those circumstances it is comparatively a slight offence. Therefore it is of tremendous importance that we should be careful in putting forward a definition of what is and what is not "active service." After all, the Bill is brought here for examination, and each of us has a duty to examine it to the best of his ability. I understand that under Section 189 of the Army Act there is a definition of "active service," and then three sorts of active service are given. It deals with a person who: forms part of a force which is engaged in operations against the enemy. That is quite simple. It then goes on, as we used to say in the war or is engaged in military operations in a country wholly or partly occupied by the enemy. That is comprehensible. Then, we have the third part: or is in military occupation of a foreign country. That, also, is quite simple. But now this Bill amends that definition. It leaves in the part referring to a man being part of a force engaged in operations against the enemy; it leaves in the part regarding military occupation of a foreign country; but it takes out the central clause, and puts in these words: With a force … which is engaged in a foreign country in operations for the protection of life or property … That is the definition of "active service," and we must have a clear exposition of it.

Take the critical case of Egypt. The Treaty of Egypt explicitly declared that the troops in the Canal Zone did not in any way constitute an occcupation force. Then circumstances became more difficult; we were subjected to violence and we replied with violence. I understand—I do not know—that in some way we have passed from the condition of not being in military occupation into a condition of being on active service. I suppose the troops engaged, for example, in the recent operations at Ismailia were to be treated as troops on active service, because they were with a force which engaged in a foreign country in operations for the protection of life and property. I must present myself to the Lord Chancellor with some humility. I am not asking for information merely for the benefit of noble Lords on this side; I am asking for information which concerns young people of this country. If a man is stationed at Suez and is put as a sentry on the gangway of a ship that goes into the Suez at Port Said, he is part of the Egyptian forces. If he is at Tel-el-Kebir or Ismailia he is part of the Egyptian forces. He may at Tel-el-Kebir have had to deal with people trying to burn stores, or at Ismailia he may have met with the volunteer police when trying to attack. In these circumstances, is he or is he not on active service?

According to the Treaty of 1936, which reaffirmed the Condominium Agreement of 1899, certainly British troops in the Sudan were on the same footing as British troops in Egypt. Is a man in Khartoum to-day on active service? He is in a force part of which undoubtedly is engaged in protecting stores in the Egyptian desert from terrorist attack. I am not putting this point in order to make difficulties, but because many young men are being sent to these places, and what their parents want to know is whether or not their boys are being sent on active service, because the conditions of control and discipline are much harsher in such circumstances. That is the sort of question that arises. If the Lord Chancellor can give us an authoritative statement of the position, I shall be grateful. I should like to know whether this is a definition which stands as a definition. Suppose a man is brought up at a court-martial for being drunk on active service. He can put in a defence that he was not drunk, or he can put in a defence that he was not on active service. How is the court-martial to decide? Must it just read the statement referred to and say he was with a force "engaged in a foreign country in operations for the protection of life and property," or can it refer to something like the provisions of the second part of Section 189 of the Army Act, which lays it down that a commanding officer may put in orders that active service conditions prevail?

I am told—and here again I am in great difficulty, but it is an important point and I think a Committee ought to consider it—that before this amendment was made, unless a commanding officer had declared that active service did exist there was no active service, except, of course, in the other condition—that is, that fighting was actually going on. The commanding officer could declare this state of affairs to exist under subsections (2), (3) and (4) of Section 189 of the Army Act. I am told that the Amendment has been made so that active service shall become a question of fact as defined in the Statute; therefore the commanding officer will not be concerned in the matter at all. In that case, one is bound to ask how long active service lasts. There was this instance at Ismailia. At one time the state of affairs in Ismailia constituted active service conditions, but now things are much quieter. But does a man out there remain on active service? Is a man going with a convoy to Alexandria to-day on active service, or is there some defined limit? These are questions which are very obscure. If the Lord Chancellor can give us some exposition, I think it would be very useful. If we cannot have a Committee to go into these matters—and, as I have said, I think they are essentially matters which we ought to have a Committee to examine—we must do the best we can here. Now, if the Lord Chancellor could give a simple exposition, bearing in mind that this is not asked for to satisfy critics on this side but in order that parents of young men who are being sent out into the Forces may know exactly the disciplinary conditions under which they are to serve, I am sure his statement will have great value.

3.26 p.m.

LORD OGMORE

On the Second Reading I raised a question with regard to this clause, and I am asking merely for elucidation from Her Majesty's Government—perhaps the noble and learned Lord Chancellor will reply—with regard to the third case in which active service applies. I would have raised no comment upon it had it not been for the statement of the Minister in another place which, I think, has thrown confusion upon this very clear section. As I see it, there are three cases in which active service applies. It applies when a person or a force is engaged in operations against an enemy—in Korea, for instance. In the second place, it applies if a person or a force is engaged in a foreign country in operations for the protection of life or property. That means, I take it, that if we had gone into Persia, that would have been a case where this section would have applied. The third instance covers any military occupation of a foreign country. That seems to me to be perfectly clear, and I hope that the Lord Chancellor will confirm that my reading is correct.

As I mentioned on Second Reading in dealing with this particular point, the Secretary of State for War in another place said (OFFICIAL REPORT, Commons; Vol. 498, Col. 1611): I undertook to give—I could not do it last time because of the closure"— So it was not a statement made on the spur of the moment; it was a considered statement, and this comes under all the rules of debate as being quotable—even in another place, where their rules are somewhat stricter than ours. The Secretary of State went on: … the areas as they stand at present, that is to say under normal conditions—not under military occupation—are Cyprus, Gibraltar, Malta, Hong Kong, Aden, Jamaica and Bermuda. Most of those, of course, are British Colonies, so one would assume that to be the case. The Secretary of State continued: Under military occupation therefore—under active service—are Austria, Germany, Malaya, Korea, Trieste and the Canal Zone. On Second Reading, I emphasised this point once more. I objected to Malaya and the Canal Zone being included with Austria, Germany, Korea and Trieste. Malaya, so far as Singapore is concerned, is a Crown Colony, and has been since it was founded by Stamford Raffles in 1819. For different periods, in some cases over a hundred years, but in no case since 1911, has any part of the peninsula of Malaya been other than under the protection of Her Majesty's Government or its predecessors. I think it is entirely wrong to regard our position there as military occupation.

The Secretary of State was attempting to define "military occupation of a foreign country." Incidentally, that is the only case in which the term "military occupation" is used. I have turned up Chapter 14 of the Manual of Military Law, and in Section VIII I found this, under the heading, "Occupation of Enemy Territory": The military occupation of enemy territory initiates a special relationship between the occupant and the population involving on each side certain rights and duties. Later on this passage occurs: According to these Rules 'Territory is considered occupied when actually placed under the authority of the hostile army. The occupation extends only to the territories where such authority has been established and is in a position to assert itself'. Section 346 says: It has been proposed as a test of occupation that two conditions should be satisfied: firstly, that the legitimate Government should, by the act of the invader, be rendered incapable of publicly exercising its authority; secondly, that the invader should be in a position to substitute his own authority for that of the legitimate Government. I think your Lordships would agree that my concern that neither Malaya nor the Canal Zone should be regarded as having been invaded by Her Majesty's Forces in accordance with the definition of the Manual of Military Law is sound. I am sure that any statement of the noble and learned Lord the Lord Chancellor will be much welcomed and appreciated.

THE LORD CHANCELLOR (LORD SIMONDS)

The noble Viscount has asked me to make an exposition of the law on this subject. I think that is rather a difficult task, but I will try, so far as I can, to answer some of the questions he has put to me. So far as the earlier part of his speech is concerned, I venture to think that he has been answered completely by the noble Lord, Lord Ogmore. Under Section 189 of the Army Act as it now stands "active service" is thus defined: In this Act, if not inconsistent with the context, the expression 'on active service' as applied to a person subject to military law means whenever he is attached to or forms part of a force which is engaged in operations against the enemy"— I will come back in a moment to that expression, "the enemy" because it is important— or is engaged in military operations in a country or place wholly or partly occupied by an enemy, or is in military occupation of any foreign country. Of course, there must always be marginal cases where there is difficulty. Definition can never be so complete as to cover every conceivable case, unless it is made so complex and tortuous that eventually you defeat your own ends. I venture to think that the definition I have read is reasonably clear. The Amendment proposed by the new Bill is that 'active service,' in relation to a person subject to military law, means service in or with a force which is engaged in operations against an enemy. … I said that I would come back to the words "an enemy," and it is convenient to do so now. In the Act as it stands, the expression "enemy" is defined thus: The expression 'enemy' includes"— that means in addition to those persons whom one would normally regard as enemies— all armed mutineers, armed rebels, armed rioters and pirates. Therefore, there is a wide scope for the first of these categories of persons engaged in operations against an enemy.

I must remind your Lordships that this Bill also amends the definition of "enemy" by adding to the definition in paragraph 20 of Section 190 of the Army Act and paragraph 20 of Section 190 of the Air Force Act the words: all persons engaged in armed operations against any of Her Majesty's Forces. I think that puts it beyond doubt that, while in such a case as Malaya there is no question of military occupation, within the scope of that definition the forces engaged in Malaya are engaged against an enemy. These are the three categories, and I venture to think that no difficulty can really arise. I fully share the view of the noble Viscount, Lord Stansgate, that people should be in no doubt whether they are on active service or not, but I doubt whether it has occurred to anybody to wonder whether he is on active service or not. It must be as clear as a pikestaff to any soldier as soon as he joins his unit, and if there is any doubt about it, I am quite sure that he is told by the sergeant-major or by the appropriate non-commissioned officer.

Subsection (1) of Section 189, which I read, does not stand alone. I think the noble Viscount also referred to subsection (2). Indeed, it has been necessary also (the necessity is obvious) to include among persons who are under military law those who are or may be brought within the category by subsection (2). If I am not wearying the Committee, I should like to read subsection (2), and your Lordships will see how necessary it is. It is proposed to be preserved by the new Bill. The relevant words are as follows: Where the governor of a colony in which any of His Majesty's forces are serving, or it the forces are serving in a Dominion or out of His Majesty's dominions, the general officer or brigadier commanding such forces, declares at any time or times that, by reason of the imminence of active service or of the recent existence of active service, it is necessary for the public service that the Forces in the colony or under his command, as the case may be, should be temporarily subject to this Act, as if they were on active service, … As the noble Lord, Lord Ogmore, said, that is a subsection which has been used quite recently in different areas.

The noble Lord referred to Egypt. I wonder whether he will allow me to say this. I venture to think that at this moment, when most delicate negotiations are going on in regard to Egypt, it would be wiser not to say too much about the subject of why our Forces are in Egypt. At least we know that they have been engaged in active service. Anybody who has seen, as I have seen, the evidence of the incidents in various parts of Egypt, including the Canal Zone, in which warlike operations have taken place, will have no doubt that our forces have been on active service against an enemy, however we choose to define "enemy." May we leave it at that at the moment? There is no doubt that our troops there are on active service and subject to military law as on active service, and it would be a great pity if in this House any doubt were cast on their position in that regard. I should be very willing to help in any way on any aspect of this question. I repeat that we are endeavouring to make this as clear as we possibly can for the benefit of all concerned, but no doubt there will be certain cases which are borderline cases. If such a case arises, I have no doubt it will be soon cleared up. I am not sure whether I have answered all that the noble Lord said about military occupation. We are in military occupation of Trieste and of Germany, and we may be in military occupation of parts of Korea, although I am not sure about that. But if this is regarded as a practical matter, for the application of plain commonsense to each case, I do not think there will be any real doubt as to whether a soldier is on active service or not.

LORD OGMORE

I should be the last to wish to raise the case of Egypt or of Malaya. It was not we who raised it, but the Secretary of State for War. All I wanted to do was to make sure that the Bill means what it says. I think that what the noble and learned Lord, the Lord Chancellor, has said is perfectly clear, and I should have no doubt about it were it not for the red herring drawn across the trail by the Secretary of State for War in another place. I quite understand that the noble and learned Lord does not wish to cast his Commons colleague overboard. I will leave it at that and assume that the matter is now clear.

VISCOUNT SWINTON

I beg to move that the House be resumed for a few minutes, in order that I may make a Statement similar to that being made in another place.

Moved, That the House do now resume.—(Viscount Swinton.)

On Question, Motion agreed to, and House resumed accordingly.