HL Deb 22 April 1952 vol 176 cc271-96

3.50 p.m.

House again in Committee.

THE CHAIRMAN OF COMMITTEES

Before the House resumed the Question before the Committee was that Clause 3 stand part.

VISCOUNT STANSGATE

I should be less than grateful if I did not thank the noble and learned Lord the Lord Chancellor for his remarks, although he left a great many obscurities in my mind. I should like to ask the Lord Chancellor this. Section 189 of the Army Act lays upon the General Officer Commanding the necessity to proclaim in General Orders the state of active service. Does that apply to subsection (3) or does subsection (3) make an independent definition of "active service"?

THE LORD CHANCELLOR

I should not care to give an authoritative opinion upon so short a scrutiny. It appears to be a continuation of the period, and no more. Under subsection (2) the General Officer Commanding may make a declaration or publication in General Orders, and by subsection (3) he can continue it for a further period. That is how the matter appears to me, but it is a very serious question and I should like to look at it more closely.

VISCOUNT STANSGATE

He cannot continue something which does not exist. My point was: What brings the state of active service into existence? Is it a declaration in General Orders, or some definition in subsection (3) of the new Act? That was my point.

On Question, Clause 3 agreed to.

Clause 4 [Amendment of definition of "enemy"]:

On Question, Whether Clause 4 shall stand part of the Bill?

LORD OGMORE

The query I had on Clause 4 has already been answered by the noble and learned Lord the Lord Chancellor, in his reply on Clause 3. I think we can describe it colloquially as being necessitated by the queer times in which we live—a cold war; neither a hot war nor peace—and I think it is a very wise precaution.

VISCOUNT STANSGATE

I have had the advantage of consulting a legal adviser on this point, by whose views I am not necessarily bound. What is the reason for altering the definition of the word "pirates"? The amendment refers to … all persons engaged in armed operations against any of Her Majesty's Forces. I may be quite wrong, but would these words affect soldiers called out on the reading of the Riot Act? Would they be engaged with "persons engaged in armed operations"? The words may apply to something like the Malayan rebels.

THE LORD CHANCELLOR

It certainly would apply to the Malayan rebels. The words are clear: … and all persons engaged in armed operations against any of Her Majesty's Forces wherever they may be. Again, there is no doubt room for saying that there may be borderline cases. It is impossible to be absolutely precise and to cover every case, but I think a common-sense application of the law would cover it. I doubt whether there would be any real difficulty in determining whether persons were "engaged in armed operations." I cannot make the matter more clear.

VISCOUNT STANSGATE

One bows with real sincerity to great authority, but the question in my mind is this—as I say, it is a lay question. The Riot Act is read and the troops are brought out. One of the rioters has a revolver. In quelling that riot, are the troops on active service and liable to the disciplinary punishments which prevail when people are on active service?

THE LORD CHANCELLOR

It is so difficult to cover every case. I doubt whether one man with a revolver would be a person "engaged in armed operations." On the other hand, the present Act, as I think I read, does include armed mutineers, armed rebels, armed rioters and pirates.

VISCOUNT STANSGATE

Then it seems unnecessary to add further words.

On Question, Clause 4 agreed to.

Clause 5 agreed to.

Clause 6 [Substitution of references to the Queen]:

On Question, Whether Clause 6 shall stand part of the Bill?

VISCOUNT STANSGATE

I should like to ask the Lord Chancellor this question, because one requires a literary expert and someone with a knowledge of statutory law. I see these interesting words: … alterations of pronouns as are, in consequence of the substitutions effected by the foregoing provisions of this section, required by the rules of grammar. To what Statute do we turn for a definition of the rules of grammar? It is a lighter part, but our Acts of Parliament might as well be literature, so far as possible.

THE LORD CHANCELLOR

I will leave that one to the Secretary of State!

LORD DE L'ISLE AND DUDLEY

I do not know whether I shall enlighten the noble Viscount a great deal on this matter. I cannot help, except to say that it is also a matter of common sense in our ordinary scholastic training.

VISCOUNT STANSGATE

With respect, I think the common-sense argument is wearing a bit thin. After all, the Lord Chancellor is head of the law. Could he tell us whether there are any Statutes which he has read which include these words? It is rather a matter of research. It may be just a little jewel of its kind.

THE LORD CHANCELLOR

I am sorry, I cannot.

On Question, Clause 6 agreed to.

VISCOUNT STANSGATE had given notice of an Amendment, after Clause 6 to insert the following new clause:

Amendment of Section 4 of Army Act and Air Force Act

". In section four of the Army Act and of the Air Force Act (which specifies offences in relation to the enemy punishable by death) the words 'on active service and in war' shall be inserted between the words 'who' and 'commits'."

The noble Viscount said: I need not pursue this Amendment, which was put down to soften the penalties because of the new definition of "active service." Inasmuch as the question of active service has been fully dealt with by the Lord Chancellor, I will not move the Amendment

3.58 p.m.

VISCOUNT STANSGATE moved, after Clause 6 to insert the following new clause:

Amendment of Section 9 of Army Act and Air Force Act

". In subsection (1) of section nine of the Army Act and of the Air Force Act the words and it shall be re defence that such lawful command was contrary to or inconsistent with international law' shall be inserted after the words 'or otherwise'."

The noble Viscount said: This is one of the issues to which the Committee might well devote a good deal of attention. Here again, I am a layman trying to expound a view which interests the public and which very much affects the position of all people serving in the Forces. For the purpose of saving the time of the Committee, we might take this Amendment and my Amendment No. 7 together. I should like to know from the Lord Chancellor whether he can give us a clarification on this point. Suppose that a soldier serving in a war does some act, under the orders of his superior officer, which is in fact a breach either of an international convention or one of the usages of war. Supposing that he becomes a prisoner and is brought before a War Crimes Court by the enemy, what is his position under this Bill? Can he say in his defence, "I did this because I was ordered to do so by my superior officer," or could he say to his officer, on receiving the order, "I will not do that because it is in breach of international law"?

This is a point which has troubled a great many people. I do not at all share the view of the critics of the Nuremberg Trials, but there are many people, including many noble Lords in this House, who have constantly criticised the trials of officers and others by the War Crimes Commissions, on the ground that these officers were carrying out their military duty. On the other hand, it has been said that, whatever the military rules may be, the international rules are merely trying to build up a body of international morality. That is the reason why we have a court for trying war criminals. The matter is clearly stated in the Army Act, and that is why I put down this Amendment. I hope that the Lord Chancellor will take a wide view of this matter. I should be very grateful if he would clarify the point. I beg to move.

Amendment moved—

After Clause 6, insert the said new clause.—(Viscount Stansgate.)

THE LORD CHANCELLOR

This again is a very large question which the noble Viscount has raised. It is, as he said, a question which has been raised on more than one occasion, and fairly lately, in this House. In particular, it was raised in July, 1950. On that occasion my predecessor, the noble and learned Viscount, Lord Jowitt (as he then was), dealt at very considerable length with this subject. He concluded his speech with these words, which I venture to cite (OFFICIAL REPORT, Vol. 168, Cols. 453–4): I apologise if I have wearied your Lordships by these citations, but I think it is absolutely necessary to get this question clear. I assert that it is a principle both of British law and of international law that to have acted on superior orders is no defence for some act that is obviously improper and would shock the conscience of a decent man. If I am asked whether I would take any part in seeking to amend that law, I should certainly say 'No.' I believe that if you alter that principle you will be striking a blow at the observance of the rule of law in this country. I believe that you would be doing a very serious thing to the soldier and the officer in time of war. Therefore, I find myself regretfully compelled to state my complete and fundamental disagreement with the proposition which the noble and gallant Earl has introduced. I cannot improve upon those words. They exactly express my opinion and the opinion of Her Majesty's Government. I think that the Amendment which the noble Viscount has proposed is completely otiose, and I must resist it.

THE EARL OF CORK AND ORRERY

I wish to say a word on this Amendment, and to support it with all the strength I can. Unless some words such as these are inserted, you will not allay the discontent which is now felt in the Services about this matter. I am not concerned about pundits sitting in Whitehall, or about the Law Officers. I am concerned about the rank and file of the Army, the Navy and the Air Force who are now serving. You must give them some protection of this sort. Some of these men are taken prisoner. They may plead that they are obeying orders in carrying out certain acts. But you deliver them into the hands of their enemy. They have only to be brought before three enemy officers—say three North Korean officers—and before that court they are bound by strict laws and conventions and can be sentenced to death. There is no defence of reprisal, such as you have in most other cases, because you yourselves have set the example. It is true that the noble and learned Earl, Lord Jowitt—whom I am glad to see back in his place, because I wish to speak out on this matter—used the words which the noble and learned Lord the Lord Chancellor has quoted. But the cases cited were not active service cases.

We have just been hearing a lot about active service, and when a man is on active service is now to be properly defined. On the last occasion when this matter was debated in your Lordships' House, the case was put forward of a sailor shooting a man in a boat. It is possible for a man to be arraigned before a court because he formed one of a battery of artillery which was firing on a town. He could not possibly have known what would be the result of his orders. Yet he could be murdered for his part, and we have no power to protect him. I hold that it is absolutely unjust to say that what he did was obviously contrary to the law of nations, for it cannot be obvious to the officer or the man who is carrying out the orders.

It is no answer to say that no British officer would give such orders. I have lived my life with British officers, and nobody could have a higher respect for them than I have. But there are always black sheep, and it is quite possible for any British officer to forget himself for a moment and give such orders. A distinguished member of your Lordships' House told me only the other day of a case in his own knowledge. It happened when he was in South Africa. A group of Boers were holding up their hands in surrender and British cavalrymen were ordered to charge and cut them down—which they did. This attitude that we are "not as other men are" carries us nowhere.

Every officer and every man ought to be protected by some such words as the noble Viscount, Lord Stansgate, suggests. Let us be realistic about this: if we are going to say that everyone is equal, then we must admit that everyone else's courts martial are equal to ours. We ought by every means to protect, so far as we can, our sons and grandsons, and all the fine young men who are taking their part in the defence of their country and who have to go to war. Let us give them all the protection we can. Lord Wright has said that these laws were the result of conventions and councils and conferences and the rest—and what did we get? We had twenty years of these conferences and pacts between the wars, from 1919 to 1939, and then we had six years of the bloodiest war that has ever happened. The chapter in the Manual of Military Law on the Laws and Usages of War purports to lay down for the benefit of the Services their responsibilities in the event of war. But that chapter is now being re-written by the very men who in the first place produced this extraordinary order which capsized the usages of war which had been laid down in 1914. America, Great Britain and the Dominions, Turkey, Germany, France, Belgium and Holland all had in their Manuals clauses which agreed with our views. Then some private lawyer told us—at the moment when it suited those who were going to try prisoners—that we were wrong, and that obedience to orders was no excuse or protection.

A clause of this sort is a handicap to officers. Many young officers will not like to give an order to their men, however necessary it may be, because they will be afraid that their men may suffer. After all, every officer is prepared to take full responsibility for the order he gives. He is anxious that neither his men nor his junior officers should suffer. Therefore, I do beg that my somewhat rambling remarks may be taken as a support of this Amendment. I know that these views are held by a great number of officers who have, not been consulted about the amendment. When that amendment was made to the Article which gives some protection to our officers and men, I know that military and naval officers in two Ministries were not consulted at all—when I say "military," I include the Air Ministry with the War Office. They were not consulted. I can only sit down and say: let us not be too strict about the law: let us think first of our young men, and then of the law.

LORD SALTOUN

Whenever this question of the duty of a British officer to exercise his private judgment on orders he has received comes up for discussion in your Lordships' House, I cannot help reflecting that, in the only case in which I heard of a British officer exercising that private judgment, he was tried by court-martial and broken.

VISCOUNT BRIDGEMAN

The point which has been raised by the noble and gallant Earl is well known to this House. We have discussed it many times. It is highly controversial and there are many strong arguments both for and against the view which he has expressed. There-fore, there are two questions before us on this Amendment: the first is whether or not the Amendment is right; and the second (which I believe is the one to which we should address ourselves this afternoon) is whether or not this is the right time to deal wilt the matter. I feel most strongly that this is not the right time to deal with the matter. The noble and gallant Earl says that there is discontent in the Services over the present state of affairs. I must accept what he says in regard to the Royal Navy, but I am bound to say that I have never heard of any strong discontent felt by the Army. I do not believe the Army thinks that this is an urgent matter. If that is so, if we are to have a Select Committee, surely a point of the magnitude of this point should be dealt with by the Select Committee. If we are lucky enough to be represented on that Committee, we shall be able to take a hand. If we are not so lucky, we shall be at liberty to deal with the new Army Bill when it comes up on Committee stage, which will be the right moment to deal with a point of this sort. I hope that the matter may be left to the Select Committee and that it will be discussed there at the length which it deserves.

VISCOUNT STANSGATE

Apparently, the noble Viscount is in possession of some information which is not in possession of the House. Has he learnt that we are to be represented on the Select Committee?

VISCOUNT BRIDGEMAN

The noble Viscount must have misheard me. What I said is this: if we are lucky enough to be represented on the Select Committee, we can discuss it. If we are not lucky enough to be represented on the Select Committee, the Bill will come up and we can discuss it in the ordinary way in this House. I can assure the noble Viscount that I am not in possession of information which other noble Lords have not got.

VISCOUNT STANSGATE

"If we are not lucky enough" is not sufficiently dignified. I would prefer something different. I did not know that the noble and gallant Earl was going to speak on this. I know from the Order Paper that time and time again he has raised this matter, for Questions have been on the Order Paper. Why should it not be discussed now? We have the whole afternoon. There is plenty of time in this House. It is an argument which one can either accept or reject, but to say that this is not the right moment to discuss this point, I cannot understand. The noble Viscount says we can discuss it "when the Bill comes up." When is that going to be? The Bill will come back reshaped on the advice of the Select Committee of another place. Personally, if I had a choice, I would rather have a Select Committee of another place than a Select Committee only of this House, but since we do not have a voice on their Select Committee, I do not think the noble Viscount's argument that this is not the moment ought to bear great weight. If we can express what we feel, then we shall have an opportunity of coming to a decision.

THE LORD CHANCELLOR

I hope that the noble and gallant Earl who has once more raised this question will not think me guilty of any discourtesy if I do not go back over the old ground. It is less than two years ago that the whole subject was amply discussed in this House. Many of us know and sympathise with the views expressed by the noble and gallant Earl, but I do not think I should be justified in going over the old ground again. Therefore, I must ask—

THE EARL OF CORK AND ORRERY

May I interrupt the noble and learned Lord for one minute? At the present time, this chapter is being rewritten, and so presumably it is being considered. If it is being considered, why not have set up a proper tribunal and produce a proper chapter, bringing it up to date, without all the obsolete information that is now in it? The noble Viscount, Lord Bridgeman, dismisses me with a wave of the hand about discussion on this important point, but only two nights ago I was told by a General in one of our high Commands that it was scandalous.

THE LORD CHANCELLOR

I am sure that every point of view which the noble and gallant Earl has put forward will be considered by the Committee, whether it be a Joint Select Committee or a Select Committee of one House only. So far as this House is concerned, I venture to think that at a quite recent date we considered the matter so fully that I should not be justified in pressing my own views any more.

VISCOUNT STANSGATE

We are getting on. The noble Viscount, Lord Bridgeman, thinks it is a matter for the future; the Lord Chancellor thinks it has been decided in the past. Why not look at it in the present? As regards the Select Committee, there is no evidence whatever that they will take the least notice of what is said here. A Select Committee of another place is not bound to take the least notice of, or to attach any weight to, any word which is spoken in this House.

On Question, Amendment negatived.

4.18 p.m.

VISCOUNT STANSGATE moved, after Clause 6, to insert the following new clause—

Amendment of s. 189 of Army Act and Air Force Act

". In the event of the Secretary of State granting any consent or receiving any report in accordance with the provisions of section one hundred and eighty-nine of the Army Act or section one hundred and eighty-nine of the Air Force Act, the Secretary of State shall notify Parliament at the first opportunity of such consent or report."

The noble Viscount said: The noble and learned Lord, the Lord Chancellor, was good enough to give us an explanation of what was and what was not active service. He expounded the amended clause in the Bill in conjunction with Section 189 of the Army Act. He also explained that Section 189 of the Army Act required the General Officer Commanding to declare in orders the fact that it was or was not a condition of active service at the time. All that this Amendment does is to ask that the Secretary of State to whom that declaration in orders has to be made should communicate it to the Houses of Parliament. It is a purely formal Amendment. I have no doubt there will be no objection to its being accepted.

Amendment moved—

After Clause 6 insert the said new clause.—(Viscount Stansgate.)

LORD DE L'ISLE AND DUDLEY

I hate to disappoint the noble Viscount—I know he is of an optimistic nature and that he takes disappointment not perhaps as quietly as some—but I do not feel able to accept his Amendment. I see the force of it, but I must say that, at any rate, predecessors of mine in this office, and predecessors of my right honourable friend the Secretary of State for War have found that the present clause works sufficiently well and, I think, to the satisfaction of Parliament. I can think that there could be a situation in which it might be better to leave it as it is. I myself am content to rest on the examples of my predecessors in office. I am not, as I have said, disposed to accept the noble Viscount's Amendment.

VISCOUNT STANSGATE

I cannot think that that answer is satisfactory, for this reason: we are amending the Army Act by means of this Bill, and if there is any occasion to make an amendment, this is the occasion. It may be that my Amendment is complicated and obscures the position. I believe that the Lord Chancellor and my noble friend Lord Ogmore think differently. But what on earth can be the disadvantages of letting the declaration be made known formally to this House? I cannot understand the objection. However, I shall not press the Amendment. I desire the proceedings to continue. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8:

Regulations

8.—(1) For section ninety-three of the Army Act (which empowers fie Army Council to make regulations for the purpose of enlistment and generally for carrying Part II of that Act into effect) there shall be substituted the following section:— 93.—(1) The Army Council may make such regulations as appear to them to be necessary or expedient for the purposes of, or in connection with, the enlistment of recruits for the regular forces and generally for carrying this Part of this Act into effect, and in particular, but without prejudice to the generality of the foregoing words, for designating the persons who are authorised to enlist recruits for the regular forces, for prescribing the form of attestation paper to be used for the purpose of the attestation of recruits and for prescribing anything which by this Part of this Act is required or authorised to be prescribed.

VISCOUNT STANSGATE moved, in subsection (1) to add to subsection (1) of the proposed new Section 93: and all such regulations made under this section shall be laid before each House of Parliament as soon as may be after they are made, and if within forty days after they have been so laid either House presents an Address to Her Majesty praying that such rules may be annulled, Her Majesty may thereupon by Order in Council annul the same, and the rule so annulled shall henceforth become void without prejudice to anything done thereunder in the meantime.

The noble Viscount said: This is another Amendment of the same kind, desiring merely that the regulations that are made under Clause 8 shall be laid before Parliament and subject to annulment by a Prayer. I do not think there can be any objection to that. It improves Parliamentary control over this matter. Now everybody is in the, Forces at some lime or another in his life, and I think it is reasonable that the two Houses of Parliament should have the power to examine regulations made by the Service Ministries and, if necessary, pray that they be annulled. I beg to move.

Amendment moved—

Page 11, line 24, at end insert the said words.—(Viscount Stansgate.)

EARL FORTESCUE

This Amendment is directed to imposing a duty to lay regulations under Section 93 of the Army Act, subject to a Negative Resolution by both Houses. At first sight this may seem attractive as bringing these regulations within direct Parliamentary control, but the following considerations should be borne in mind First, it would be anomalous to take this group of regulations and single them out for such procedure. If all regulations under this Act and the Air Force Act were so treated, there might be an argument for so doing, but it should be remembered that a great many of these regulations go into matters of very great detail, such as the issue of part warn greatcoats to troops, Regulation 127, the Recruiting Regulations.

Secondly, the problem of delegated legislation was considered very fully and the solution embodied in the Statutory Instruments Act, 1946, and the regulations made thereby. This was largely an agreed measure to meet a post-war problem, and although noble Lords are not, of course, bound by that Act or inhibited from making Amendments of importance, it is worth while noting that under that Act a great many of the Instruments produced or to be produced under the Army and Air Force Acts were excluded from falling within the ambit of the Act itself. Thus, advisedly, a very large number, in fact the majority, of Instruments created under the Army and Air Force Act, are not Statutory Instruments but are simply rules which fall to be publicised under the normal means chosen by the Army and Air Councils. For example, Recruiting Regulations made under the Army Act, Section 93, are issued in a small red booklet. No doubt members of the Committee who have been in the Army will know the A.C.I. system backwards; Queen's Regulations are published fairly often, and, if I remember rightly, we had great difficulty in keeping them up to date. These have the force of law, but practice has shown that this is not a case where Parliamentary time should be taken up with such small details. Therefore I hope that the noble Viscount will not press his Amendment.

VISCOUNT STANSGATE

I am grateful to the noble Earl for giving us the benefit of his powerful brief, but I cannot say that it has convinced me very much. The fact that I have got a little red book does not in the least solace me for losing my rights as a Member of Parliament. The fact is that there are many small matters arising under Statutory Rules and Orders which are brought to members of this House—questions concerning the price of cabbages, or shoelaces, and so on. Why we, who are interested in the Services, should not look at these regulations and apply our minds to them, I do not know. If they are good, they are good. If we think it is right to criticise them, then we should be able to pray against them. But there is one point which the noble Earl has overlooked. We shall send this Bill hack to another place and we shall lose all control. They are going to prepare a new Bill. The whole thing is under review. If only we can have the regulations brought to us, we shall at least have an opportunity of examining them critically. My case is complete. But the man in the office has plenty to do. He has probably got an "In" tray, and he thinks that this Amendment is objectionable. Therefore I do not want to press it.

LORD DE L'ISLE AND DUDLEY

I had not wished to intervene at this stage, but I find myself largely in sympathy with what the noble Viscount has said. I am not a lover of delegated legislation as such. I did what little I could (although I confess it was a little) when I was in opposition, to point out the dangers of a great deal of the legislation which was passed by the Labour Government. We thought that they made an excessive use of it. Therefore I hope that when this matter is considered, as it ought to be, we shall have the assistance of the long experience of the noble Viscount in helping us to put Parliament where, in many cases, it ought to be. However, I do not think that this is the right place to begin.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clauses 9 to 12 agreed to.

4.28 p.m.

LORD DE L'ISLE AND DUDLEY moved, after Clause 12 to insert the following new clause:

Removal from Army Act of references to volunteers, &c.

". For the purpose of—

  1. (a) removing from the Army Act references (whether express or implied) to the volunteers; and
  2. (b) removing from that Act references (whether express or implied) to the militia and securing uniformity of language as respects references to the army reserve;
the sections of that Act specified in the first column of the Second Schedule to this Act shall have effect subject to the amendments respectively specified in relation thereto in the second column of that Schedule."

The noble Lord said: This is a formal Amendment to tidy up an omission on the part of another place. The Second Schedule was inserted, but the clause which governed it was not, and the Bill as it appears in this House is incomplete. I hope that I shall again have the agreement of the Committee in inserting this clause. It is purely a drafting and tidying up clause in order to complete the Bill.

Amendment moved—

After Clause 12, insert the said new clause.—(Lord De L'Isle and Dudley.)

LORD OGMORE

I appreciate the need for this clause. Without it, the Schedule was, so to speak, hanging on a branch without a tree—or, like the Cheshire Cat, smiling without a body. But as it is a new clause, and as, presumably, no one has ever discussed it before, I should like to say a word or two about it. First, I am not sure whether it has been a good thing to remove the words "auxiliary forces" Under this Bill the term "auxiliary forces" is removed altogether, and it is proposed to substitute the words "Territorial Army." I should have thought that the Government would have more latitude if the words "auxiliary forces" were retained, a new definition being given. Already in peace time we have a Home Guard—at least, I thought they were going to start on Monday. At all events, we have some nucleus of the Home Guard. The Staff and some people of the rank of lieutenant-colonel have been appointed, because I know of more than one such individual. Equally, there may be other types of force which cannot at the moment be foreseen. In recent years we have had new creations, such as mine watchers, and all sorts of other people. Therefore, it seems to me that it will limit the power of the Government very much if they strike out the words "auxiliary forces" and put in the words "Territorial Army" It will restrict them in regard to forces of other types which in time to come may come into being.

I am sorry to say that the volunteer element in the Territorial Army, which is dealt with by this clause, is declining in strength. In the Secretary of State's Memorandum on the Estimates, he has admitted a decline in the strength of the volunteer element of the Territorial Army. During the Second Reading debate, I made certain suggestions. I am glad to note that I have since been reinforced with regard to suggestions I made about colour in the Territorial Army. It may well he found in time—I hope it will not, but it may be—that the present scheme of trying to combine a volunteer element with a compulsory element in one force will not work out, and the Government will have to provide two forces: one a purely voluntary force, such as we had in the old days, and one a force of National Service men who have done their duty and who come in to do three or four years in a part-time service. That, I think, is possible. It is not by any means proved that this method of combining the two types of services in one Territorial Army is going to be a success. We hope that it will, but the Government's own Paper shows that the voluntary element is steadily decreasing, and expresses concern about it. I put this forward only as an example of the need for elasticity in the definition of "auxiliary forces" and as illustrating the mistake the Government have made in eliminating the definition from Section 190 (12) of the Act. I hope that nothing I have said will be taken as suggesting that I do not wish the Territorial Army every possible success. I most certainly do. No one could be a greater believer in it or a greater well-wisher towards it than I. All I say is that we have to look at the possibilities, remote though they may be, and there are possibilities—at any rate. I think so—of the Government making a mistake in not providing for a situation which may perhaps arise in the future.

4.33 p.m.

LORD MANCROFT

The noble Viscount. Lord Stansgate, has sent some pretty brisk and healthy hares scuttling around these Benches, but the noble Lord, Lord Ogmore, has just sent a much bigger one. I hope his suggestions will not be very gravely attended to. I bow to none—certainly not to Lord Ogmore—in my admiration for the volunteer spirit of the Territorial Army, in which both he and I served for many years as volunteers. He and I both deplore the fact that there is evidence that the voluntary spirit has been slowly dying away, but I think it would be deplorable if we were to incorporate in any Act concerning the Armed Forces a suggestion that the new arrangement is an experiment which we think possibly may not work and that, therefore, we have thought it necessary to have some alternative arrangement up our sleeve in case it does not. I think it will work, though I agree with the noble Lord that there is some difficulty about amalgamating the old volunteer with the new conscript Service man. But, as I say, I think it would be disastrous to leave some loophole in the Act which might suggest to the men corning into the Force that we have not sufficient confidence that it will weld itself into a coherent Force and so we need to have some provision whereby we can return to the old system and have a dual force—one part volunteer, and one part conscript. That would be a most deplorable situation.

LORD OGMORE

I once heard the late Miss Ellen Wilkinson say in another place that the most dangerous thing one could ever do in Parliament was to give an example. I think that that is true. Of course, I hope that the Territorial Army will be a success: indeed, I think it will. Naturally we should not have anything in the Bill which suggests that it will not be a success. I was putting forward only an example—I gave other examples, such as mine watchers and the Home Guard—to show that the Government may need more latitude than is provided by this restriction to the words "Territorial Army" and that it was a pity to strike out the words "auxiliary forces." That was my argument. I am sorry that Lord Mancroft, whose legal acumen and sparkling wit we all appreciate, rode off on my hare and turned it into an electric hare.

VISCOUNT STANSGATE

I do not know whether it should be a source of shame in this House to take an interest in legislative forms, but I spent an anxious holiday studying the Second Schedule. That poor Schedule stood out, for it has hitherto had nothing to support it in the Bill. It was like the Skylon or the Government's own reputation; it had no substantial basis whatever.

LORD DE L'ISLE AND DUDLEY

With my right honourable friend the Secretary of State, I will certainly study carefully what the noble Lord has said. I do not want to start another argument as to whether the Home Guard are within the ambit of this clause. I understand that they are armed forces who are not members of the Army. but I am not going into legal definitions now. I will certainly look at this clause again, but at the moment I rather doubt whether the noble Lord really has a point of substance here. However, I should prefer to have the opportunity of considering the matter and, if necessary, of dealing with it at the next stage of the Bill.

On Question, Amendment agreed to.

4.36 p.m.

VISCOUNT STANSGATE moved, after Clause 12, to insert the following new clause:

Punishment of officers

". An officer who commits any offence for which a soldier is liable to suffer imprisonment shall also be liable to suffer imprisonment, and the words if an officer, to be cashiered or to suffer such less punishment as is in this Act mentioned, and if a soldier,' shall he omitted from all sections in the Army Act, in which they occur"

The noble Viscount said: This, of course, should not be an Amendment to a Bill at all. It raises an issue of immense social significance. On the other hand, this is an Army and Air Force (Annual) Bill which is dealing with the discipline of the Services, and we contend—I certainly contend—that in a national Army in which all people join, whether as officer, recruit, or whatever it may be, it is out of date to have one type of discipline and of penalty for officers and one type of discipline and of penalty for other ranks—a much harsher type of discipline and penalty, it may be, for the men. Therefore, we have put down, boldly and thoughtfully, a form of words which would put both officer and man on the same basis. That is to say, if an officer commits an offence for which a soldier would be imprisoned, then he also would be liable to imprisonment. That is a deep and fundamental issue which ought to be thoroughly discussed. I do not think it is possible to discuss it now, but I commend it to the Government as representing the spirit and judgment of many of my friends on this side. I beg to move.

Amendment moved—

After Clause 12, insert the said new clause.—(Viscount Stansgate.)

LORD DE L'ISLE AND DUDLEY

As the noble Viscount has said, this is perhaps not the occasion upon which to have an extended discussion on a matter which is obviously of fundamental importance. Therefore I do not intend to take it much further than he has done. I think I ought to start by expressing my disagreement with the thesis which the noble Viscount has advanced.

VISCOUNT STANSGATE

That is to say, you are against the Amendment.

LORD DE L'ISLE AND DUDLEY

Yes, I am against the Amendment. I think it only fair to say that, although no doubt there are members of the noble Viscount's Party who agree about this matter, the Lewis Committee went into this question and reported upon it, in, I think, Paragraph 175 of the Report I think it would be convenient for your Lordships if I now quoted that paragraph. It reads: We wish to make it clear beyond doubt that nothing in modern Service developments leads us to think that a lower standard of conduct should be now accepted for officers than was accepted in the past. A moment's consideration of the officer's place as a leader in battle will dispose of any such idea. For this reason, if for no other, we have rejected a suggestion, made in evidence given before us, that punishments for officers and other ranks should be similar. That recommendation, I think, was accepted by the late Government. I find myself in agreement with the late Government and with the Lewis Committee. If the noble Viscount presses the Amendment, I am afraid I shall he unable to accept it.

VISCOUNT STANSGATE

I do not intend, of course, to press the Amendment to a Division, but I should like it to be recorded that I supported it.

On Question, Amendment negatived.

4.40 p.m.

VISCOUNT STANSGATE moved, after Clause 12, to insert the following new clause:

Amendment of s. 177 of Army Act . Section one hundred and seventy-seven of the Army Act shall be amended by the addition of the following proviso: 'Provided always that any law of any Colony which provides that a person to whom this section applies hall be flogged or attached to a fixed object as a punishment for any offence under military law shall be void and of no effect.'

The noble Viscount said: Here again, we have come to a question which is a fundamental one. This is a matter which makes me feel more and more that this House might usefully have devoted a week to the Committee stage of this Bill. I think I went too far in some words that. I used on the occasion when this Bill came before the House. I said that if I were in command of a company, I could order a white man to accept certain punishment and I could order a coloured man to accept flogging, or field punishment No. 1. That would not be so in one unit, but if I commanded a group of forces, and one of them were a coloured force from a British possession, the discipline of the British force would be covered by this rule—that is to say, field punishment No. 1 could not be inflicted—while under Section 177 of the Army Act, the Colonial non-European force serving overseas would be subject to the law of the Colony, and in many of these Colonies the law includes flogging, and also, I daresay, attachment to a fixed object.

The representatives of the late Government declared before the Trusteeship Council that we were doing our best in the Trustee Territories to get rid of corporal punishment, and I remember that my noble friend Lord Ogmore and I said the same thing when we raised the question of whipping in Hong Kong. I had hoped that the noble Earl, Lord Munster, representing the Colonial Office, would be here to-day to tell us what is the practice in relation to these Colonial troops. It seems to me that when we are trying to unify various forces in the European Defence Community and in other united bodies, it is most undesirable to have two types of discipline. Suppose that Pakistan or Ceylon decided to assist us in the field, as Australia and New Zealand have frequently done. If these Pakistani or Cingalese troops observed Colonial troops suffering corporal punishment when white troops did not, that in itself would be very bad for discipline. Moreover, I think it is wrong. I am strongly opposed to corporal punishment and I think an Amendment of this kind, which would make it impossible to impose corporal punishment, at any rate so long as Colonial troops were serving with others, is right. I therefore recommend it confidently to the favourable consideration of the Government: and noble Lords present.

Amendment moved—

After Clause 12, insert the said new clause.—(Viscount Stansgate.)

LORD MANCROFT

Without in any way attaching myself to the arguments concerning corporal punishment, I should like the noble Viscount, Lord Stansgate, to clear up this point when he comes to reply. Is it correct Parliamentary procedure, or advisable, or even tactful, in a Bill such as this to state that any law of any Colony on a particular subject shall by this Bill be rendered "void and of no effect"? That seems to be a curious Parliamentary method which is not likely to endear us to Legislatures of the Colonies. It appears a little unusual.

VISCOUNT STANSGATE

I suppose I should leave it to the Lord Chancellor to answer that, but may I give my amateur opinion first? The fact that a Colony is a Colony means that its Legislature is subordinate to this Parliament, and it seems perfectly proper that we should legislate here and overrule, when necessary, the validity of their acts.

LORD OGMORE

Without going into the merits of the case, I take the greatest exception to the doctrine proposed by my noble friend Lord Stansgate. I consider that the less we in this Parliament interfere directly with Colonial legislation the better. This question came up very often when I was Minister. I found that those most anxious to give the Colonies self-government were often those most desirous of restricting their powers of legislation. I think nothing could be worse than for us here to lay down in a Bill, in advance, orders upon a Colonial Legislature. I hope that your Lordships will reject this Amendment.

LORD DE L'ISLE AND DUDLEY

I feel rather superfluous in coming to the Box. In the short time at my disposal I have made inquiries, but so far I have not been able to establish that any Colony has a code which includes this punishment. I do not say there are not any.

VISCOUNT STANSGATE

Hong Kong?

LORD DE L'ISLE AND DUDLEY

That may be so, but I cannot argue about it. I should not like it established that this is a general practice among the Colonies, and I can say that if there is such a case it is extremely exceptional. I think that what the noble Lord, Lord Ogmore, and my noble friend Lord Mancroft have just said is perfectly right, that it would be extremely bad if we inserted in a Bill of this kind the clause suggested by the noble Viscount. If it had to be considered, it ought to be considered as a Colonial matter, and not as an Army and Air Force matter. I think it is extremely improbable that circumstances would in fact arise where Colonial forces in active operations with forces of our own would be subject to different punishment in the field. I do not think we ought to accept the Amendment, for reasons advanced by both sides of the House, and I must ask the House to reject it.

VISCOUNT STANSGATE

I will ask permission to cry "Content" when the Amendment is put. I am sure that the noble Lords opposite are thoroughly enjoying the internecine conflict on this side. I understand the noble Lord giving moral support, liaison support, to my nigger-flogging colleague. I must say that my noble friend Lord Ogmore is rather alone, or at any rate in a small minority, in our Party in seeking to give everyone the right to flog his own nigger. That is exactly what he said—I am putting it in the vernacular. After all, a man suffering this punishment does not think of fine turns of phrase. Generally speaking, so far as our Party is concerned, I think this Amendment represents our view. Whether it is right to put it in the Army and Air Force (Annual) Act, I do not know, but I should have thought that matters of discipline for our forces were certainly a matter for this Bill, and therefore I continue my support for my own Amendment.

LORD OGMORE

I do not want to engage at any length in fisticuffs with my noble friend. I think the House would wish me to repudiate the idea that I or my Party, or anyone in Parliament, is not against corporal punishment. What I say is that, apart from the merits of the proposal, I regard it as quite wrong that Parliament here should lay down an order of this kind. This should be dealt with by the Colonial Legislatures. I am sure that is the proper democratic practice, and not the other.

On Question. Amendment negatived.

Clauses 13 to 18 agreed to.

First Schedule agreed to.

Second Schedule [Amendments of the Army Act for purpose of removal of references to volunteers, &c.]:

4.50 p.m.

LORD DE L'ISLE AND DUDLEY

This is a purely drafting Amendment. I beg to move.

Amendment moved—

Page 22, lire 35, at end insert ("In subsection (5) for the words the auxiliary forces' there shall be substituted the words 'the territorial army'").—(Lord De L'Isle and Dudley.)

LORD OGMORE

This reinforces the point I made previously, and I will not make it again. I would just ask the noble Lord to look at it, and perhaps he will give us his view on Third Reading.

On Question, Amendment agreed to.

Second Schedule, as amended, agreed to.

Remaining Schedule agreed to.

On the Title:

LORD DE L'ISLE AND DUDLEY

The next Amendment is to meet a point to which the noble Viscount, Lord Stansgate, quite rightly drew our attention. I beg to move.

Amendment moved—

Leave out ("daring twelve months") and insert ("until the end of the month of July, nineteen hundred and fifty-three").—(Lord De L'Isle and Dudley.)

On Question, Amendment agreed to.

Title, as amended, agreed to.

On Question, Whether the Preamble shall stand part of the Bill?

VISCOUNT STANSGATE

I have raised a question of some difficulty once or twice during our debates, and the noble Lord the Secretary of State for Air has been good enough to give me a Written Answer. The point is this. An officer's name is put on the Retired List. What power exists in the Service Ministries to remove his name from the Retired List? For example, could his political opinions be used as a reason for removing it from the Retired List? The noble Lord the Secretary of State for Air was kind enough to reply to me citing the Regulation, in paragraph 3,549 of the Queen's Regulations to the Air Force, saying: This Regulation provides as follows: 'An Officer shall he liable to be removed from the Retired List for misconduct.' That is a perfectly plain statement. But it is a serious thing for a man's name to be removed from the Retired List. I should like the noble Lord, or perhaps the Lord Chancellor, to tell me who defines "misconduct," and whether, if anyone is charged with misconduct, he has an opportunity to be heard, or to produce evidence. Or is it just that the Secretary of State has the right to take action autonomously, without hearing the person who is likely to suffer? If it is not convenient now, I will raise the question later. This is a question of real substance, because if you get the idea of political purges in the Services, and of people not being liked because of their general outlook, it is a serious matter. People in the Services ate accustomed to disregard political prejudices. I feel it is important that either now or at some time—perhaps some future time would he better—there should be a definition of the word "misconduct" under this Regulation which permits the Secretary of State to remove a man's name from the Retired List.

THE LORD CHANCELLOR

The noble Viscount has asked me a rather general question. I think: one must assume, whether it is the Air Council or the Army Council, who are armed with similar powers, who embark upon the question of whether an officer is to be removed from the Retired List for misconduct, that they will act in accordance with the ordinary principles of British and, I may say, natural justice, and will not do so without giving the person to be removed an opportunity of stating his case. I imagine that this is a general question, and I can answer it only in a quite general way. As to misconduct, it is obvious, again, that it is quite impossible to give a complete definition which will cover every case of misconduct. One must have regard to the subject matter, and to the person whose actions are being considered. For instance, something might be misconduct in a man holding Her Majesty's Commission which would not be misconduct in another man.

VISCOUNT STANSGATE

Would political opinion be misconduct?

THE LORD CHANCELLOR

I must be a little careful here, because I cannot help thinking that the noble Viscount has in his mind a particular case which might be a justiciable issue. It would be improper for me to express an opinion in this House on a matter which may have to be dealt with in the courts of law and, ultimately, in this House. I would rather not express an opinion which could be related in any way to a third person. However, I call well conceive that generally, although clearly it is not misconduct to hold a political opinion, it may well be misconduct if a man holding such political opinions expresses them in such a way and in such a place as to cause, I may say, something like sedition among Her Majesty's Forces.

VISCOUNT STANSGATE

But under Section 35 of the Army Act a person using treasonable words can be brought to court-martial. And, of course, regulations can be made. I am speaking about an uncontrollable action of the Secretary of State himself.

THE LORD CHANCELLOR

I do not quite understand what the noble Viscount means by "an uncontrollable action of the Secretary of State himself". I am dealing for the moment with the question of what might amount to misconduct. The noble Viscount asked me whether the holding of political opinions could be misconduct, and I was saying that the holding of political opinions could not be misconduct, but that those opinions might be expressed in such a way, and in such a place, as to amount to misconduct. I would rather not say more because, as I have said, this appears to be a matter that may possibly go further.

VISCOUNT STANSGATE

I had not fully realised what the dangers were the other day when I asked the noble and learned Lord the question, and I shall not pursue the matter now. At the same time, I consider that Parliament should take into serious consideration anything that looks like penalising a retired officer because he holds this or that opinion—I do not care what opinion it may be—so long as he performs his duty in the ordinary way and does not do anything wrong. If he does wrong, then he can be brought to book by the Regulations, or he can be brought to trial by court-martial. But do not let us have this Eight of Spades type of thing, because I consider it is a dangerous thing to introduce into the Constitution.

On Question, Preamble agreed to.

House resumed.