HL Deb 05 April 1955 vol 192 cc281-304

2.45 p.m.

Order of the Day for the Second Reading read.


My Lords, there is a rather comprehensive list of legislation before your Lordships this afternoon, but I hope that you will not be alarmed by it. If it suits your Lordships' convenience, I propose to make my speech upon the first of the legislative proposals before the House, but, with your permission, I would refer both to the Army Bill and to the Revision of the Army and Air Force Acts (Transitional Provisions) Bill, because all three measures are co-related and it would be difficult to explain one without referring to the others.

The Army Bill, the Air Force Bill and the Revision of the Army and Air Force Acts (Transitional Provisions) Bill owe their existence, as your Lordship know, to certain political and Parliamentary events a little time ago. At that time, attention was focused on the antiquity of the Army Act particularly, and, arising out of that, the Air Force Act. In the event, agreement was reached for the appointment of a Select Committee of another place which was charged with making recommendations for the amendment of both Acts, and, secondly, to report on the advisability or otherwise of enacting those Acts, or parts of them, permanently. It was a formidable task and, locking back, we cannot be surprised that its fulfilment took two and a half years and seventy-one sittings of that Committee.

The Army Act, and, arising from it historically, the Air Force Act, had seventy years of continuous and active life, but recent changes, such as the introduction of National Service and the creation of the Women's Services, as well as the wide dispersal of the Army and Air Force over the world, made a revision of these Acts desirable. Her Majesty's Government decided to adopt, in principle at any rate, the draft Army and Air Force Bills which reflected the Select Committee's recommendations and were appended to their last Report. In fact, only drafting and relatively minor amendments have been made to the drafts.

Perhaps, for the convenience of your Lordships, I ought to refer briefly to some of the major changes made in these two Acts. First, I come to the question of mutiny. The offence of mutiny has been defined for the first time, and the death penalty for this offence, whether committed in peace or in war, has been restricted to either mutinies involving the use or threat of violence, or mutinies entered into with the object of avoiding duty against the enemy. That brings me to the subject of the death penalty in general. In 1930, your Lordships may remember, it was the intention of Parliament to remove the death penalty for acts of cowardice, but some of the offences left in the two Acts which attract the death penalty might have been committed through cowardice. The Bills now before your Lordships make it quite clear that offences committed with intent to assist the enemy shall have death as the maximum penalty, whilst imprisonment is made the maximum punishment for offences committed from other motives, including cowardice.

I think it right to refer to the position of civilians under military law. As the law now stands, civilians are subject to Military and Air Force Law only when the troops which they accompany are on active service. This limitation was useful and satisfactory when the Forces abroad were mostly in British possessions; but in existing circumstances they are stationed in quite a number of foreign countries, and it is therefore desirable that civilians accompanying the forces overseas should be subject to Military and Air Force Law, subject of course to certain modifications, so that advantage can be taken of certain jurisdictional rights in respect of certain categories of civilians which are allowed by international Agreements like the North Atlantic Treaty Organisation Status of Forces Agreement. These rights cannot be enjoyed if the civilians are not amenable to Service law. So that is an amendment to meet the existing conditions which is recommended under these Bills.

Another change is that where an offence could be committed by either an officer or other rank, the maximum punishment has been equalised and made the same. A change has also been introduced as regards forfeiture of service. Under the Army and Air Force Acts as they now stand, all service before desertion is automatically forfeited, although it may be restored on promotion or after eighteen months' good service. Under the new Bill, only the period of absence is automatically forfeited. Any additional forfeiture is at the discretion of the court-martial by which the man is tried. Then there is a juridical change whereby a purely legal question like the admissibility of evidence is to be decided by the Judge Advocate when the court retires.


May I ask one question—I apologise for interrupting? With regard to civilians accompanying the forces, does that mean to say that wives and children of officers now become subject to military law?


In certain circumstances, they do.


That is new.


In some circumstances: for instance, members of the Navy, Army and Air Force Institute serving in countries where the Status of Forces Act applies, or where similar treaty agreements have been made, such as in Libya.


I have followed that. I am wondering about officers' wives and children.


It applies to certain categories of civilians defined by agreement who are necessarily accompanying those forces because, for reasons which will occur to the noble and learned Earl, it may be considered not desirable that they should fall into what I think is called the lex curiae.


That is very good.


These Acts have been drafted, at least in part, with the object of assisting the understanding of officers who have sometimes to administer them in the field, so that they can administer them speedily when deprived of the help of the legal profession. I am sure that the student of Military and Air Force Law will be grateful to find subjects like the Constitution and the powers of courts-martial collected together in one place, without the need to have to search through the volumes of Military Law and collate them personally. Another improvement which I recommend to your Lordships is the bringing together in these Bills of provisions relating to the confirmation, revision and review of proceedings of courts-martial. The present procedure is governed not only by different sections of the existing Acts but by Rules of Procedure, Queen's Regulations and by administrative instructions. So there is a veritable jungle to be explored by amateurs in law. Of course, we have to sacrifice something, and we have to sacrifice some charming and perhaps archaic expressions, such as the "impressment of carriages."

I have dealt with the first part; I now come to the second part of the Committee's terms of reference. These are concerned with the advisability of enacting the two Acts, or part of them, in permanent form. It might be argued that both the Army Act and the Air Force Act should be permanent Acts like the Naval Discipline Act. Whether or not this would be a breach of the principle of the Bill of Rights that the raising or keeping of a Standing Army within the Kingdom in time of peace unless it be with the consent of Parliament is against the law is a matter for the constitutional lawyers. Of course, in practice, neither the Army nor the Air Force in existing circumstances could be maintained unless Parliament voted the money to pay for them, and the money so voted was appropriated by an Annual Act. But the control of Parliament over the discipline of the Army and Air Force annually has a very true significance. This control has been preserved in the present Bills, although in rather a different form. Both Bills provide for their expiry twelve months from the date on which they become effective, and their renewal annually for a further period of twelve months will require an Affirmative Resolution of both Houses of Parliament. There will thus be an annual opportunity for a general debate on both the Army and the Air Force Acts but, I must explain, not an annual opportunity to put down Amendments to these Acts. In the fifth year new legislation would be required which would involve the introduction of new Army and Air Force Bills. Her Majesty's Government have agreed that these Bills at five-yearly intervals should be submitted to a Select Committee so as to ensure the currency of up-to-date disciplinary codes. So I hope your Lordships' House will feel that the spirit, and I hope also the letter, of the Bill of Rights will be preserved.

The Army and Air Force Bills are, in general, parallel measures, the only substantial difference being that Part I of the Air Force Bill reflects the fact that the Air Force has not adopted the twenty-two years initial engagement, and Part II of the Air Force Bill includes offences specifically related to aircraft and aircraft material. It is unnecessary in the Air Force Bill to make special provision for the Royal Marines or the Home Guard, and this is the reason why the Air Force Bill is one Schedule and two clauses shorter than the Army Bill.

I come now to the last point that I wish to make, and that is the contents of the Revision of the Army and Air Force Acts (Transitional Provisions) Bill. Clause 1 of this Bill provides for the Army and Air Force Acts, which would otherwise expire on July 31 of this year, to continue in force until the end of 1956. The last clause of the Army Bill and the last clause of the Air Force Bill provide that those Acts should come into operation on the day appointed by Order in Council. The intention is that that day should be January 1, 1957. The Order in Council bringing into force the Revision of the Army and Air Force Acts (Transitional Provisions) Bill will designate the same day. Your Lordships may at first believe that the old Acts are being given a generous reprieve or are taking an unconscionable time to die, but in fact these three Bills, taken together, take account of the fact that the revision of the law will require the preparation and issue of completely new Manuals of Military and Air Force Law. In addition, a large number of statutory instruments, Rules of Procedure, Queen's Regulations, and so on, must be prepared. The physical task of printing alone is by no means a slight one. Then we have to take into account the fact of geography in the distribution of all these documents to the ends of the earth, including our Forces in the Far East. Finally, it is essential for the proper administration of justice that we should allow reasonable time for those who administer the new system to study and become acquainted with it.

Clause 2 and the First Schedule to the last Bill on the Order Paper contain transitional provisions and savings on the expiry of the Army and Air Force Acts, For example, they provide that courts-martial proceedings started before the Acts expire shall not be rendered void by their expiry. Clause 3 and the Second Schedule contain consequential amendments of other enactments like the Naval Discipline Act, and of course all of these Acts are closely related and bear intimately upon each other. Clause 4 and the Third Schedule provide for the time being for two sections of the existing Army and Air Force Acts concerning entertainments under Service control and the licensing of canteens in Northern Ireland which are not really appropriate to an Army or Air Force Bill. We hope that in due course they may be replaced by appropriate licensing legislation sponsored by the Home Office or the Northern Ireland Government. Clause 5 and the Fourth Schedule cover consequential repeals of other enactments.

I have endeavoured very briefly to deal with the principles of these Bills and to explain the main changes enacted. It may be that there are matters of detail upon which your Lordships require further elucidation. With great respect, I suggest that the detail might more appropriately be dealt with on the Committee stage before your Lordships' House. I beg to move that this Bill he read a second time.

Moved, That the Bill be now read 2a.—(Lord De L'Isle and Dudley.)

3.2 p.m.


My Lords, in dealing with Bills of this magnitude it is quite impossible to examine them in any detail. We know that they are the result of a large-scale Parliamentary operation, with a Report from a Select Committee in the other place. We know also that the cause of the setting up of the Select Committee was the general recognition by Parliament that the Army and the Air Force Act, as we knew it, was grossly out of date in a number of respects. Noble Lords on this side of the House certainly welcome the Bill, and we shall do everything we can to assist its passage.

There are two reasons why I think it is important that the Army Act must be kept up to date and not too far out of step with the progress of opinion in the country in general. First, there is the constitutional point, that we must at all costs maintain the supremacy of the civil power over that of the military; and secondly, for the sake of the Army itself, we must ensure that the conditions under which Regular soldiers and airmen are called upon to live and serve and complete their careers are such as will attract good men. One of the most important provisions in the Bills we have before us is that they shall be subject to review every five years. If such reviews had been carried out by our forefathers, we should not have had the extraordinary instances of archaism that characterise the old Army Act.

However, there is more to this, I think, than can be achieved by legislation. There is a need for a continual change in spirit, as well as in legislation, in the conditions under which officers, warrant officers, noncommissioned officers and men have to serve. There still remains from Victorian days, or even before then, a good deal of the attitude of mind—possibly in individuals, possibly in administrative regulations—which regards anybody who is not a commissioned officer as a child who has to be looked after, who needs parental help and guidance. Only two or three years ago, a warrant officer Class I, whom I had known all my life and who had some twenty-eight years' service, wished on retirement to commute part of his pension. Because he was a warrant officer and not a commissioned officer he was not allowed to do this without a number of inquiries about what he had done with other income of his—inquiries which he naturally regarded as impertinent. Yet those inquiries were laid down in the regulations governing pensions. Even when a man reaches a position of responsibility after long service, because he has not the Queen's commission he is considered a far less responsible person than any young civilian—in fact, than any voter in this country. That is an example of the kind of attitude which is not yet dead in the Army.

I should like to impress upon the noble and gallant Lord—and I hope he, in turn, will impress it upon his right honourable friend—that the administrative regulations and the spirit in which they are applied need to be looked into. We know that for a long time the Army lagged a long way behind civilian opinion in this country. Even within my father's recollection, death sentences and executions in the Army in India were carried out publicly, in front of a parade of all the troops. That sort of thing was described by Kipling. It took place only a matter of sixty or seventy years ago, whereas public execution in this country had ceased some 150 years earlier, it having become repugnant to public opinion.


No, it was about ninety years ago—in 1858, I think.


Well, it was at least a generation or two before. The Army needs to be kept constantly in step with public opinion. With those few words, I would once again impress on the noble and gallant Lord that to attract the right type of man to take up the Service as his career and become a Regular, the conditions in the Army and Air Force must be such as will appeal to a self-respecting young man.

3.10 p.m.


My Lords, I thought that my noble friend who moved the Second Reading of this Bill steered a cautious and successful course between the need to explain the clear outline of these Bills to the House and the need to avoid involvement in the morasses of detail which, among them, these three Bills contain. As we have just heard from the noble Earl opposite, these Bills are likely to get a fair wind from all quarters. One should perhaps begin, as was done in another place, by expressing our appreciation of the solid, valuable and successful work done by the two Select Committees, one drawn from Members of the other place, the other drawn from expert officials from the Service Departments. Between them they have certainly produced something which, as the noble Earl, Lord Lucan, has said, is a great improvement on the two old Acts.

We cannot leave the matter of the Select Committee where it is, for we in this House must ask whether it was altogether wise to take the step of appointing a Select Committee of any House of Parliament—let alone of one House—to draft Bills. It has always seemed to me that the proper business of Parliament was to pass Bills, amend them, or throw them out. The idea that drafting should be undertaken by a Select Committee of either or both Houses seems to open up a completely new idea and the possibility of a completely new set of calls on the time of Members of both Houses. If this procedure could be adopted to deal with one situation, then I see no reason, in theory, why it should not be adopted each time there is need to deal with objections raised in one House of Parliament or the other to the administration of this or that Act. I can see no end to that. My right honourable friend, the Secretary of State for War, may have bought rather too dearly the two years' respite which he gained by the appointment of the Select Committee. At any rate, noble Lords can congratulate themselves, if they want to, upon having escaped the two and a half years' hard labour which their representatives would have had.

Let us pass to a point which is much more important, particularly since my noble friend has just told us that these new Acts are to be submitted to a Select Committee every five years. I do not recollect that noble Lords have yet been told anything of the composition of that Select Committee. Perhaps that point has not yet been decided, as the first review will take place five years hence. But we in this House should hesitate to accept the idea that for five years—and probably for ever—Members of another place should have permanent, preferential treatment in dealing with the affairs of the Forces. Nevertheless, we have come a long way back to realities in having these two clauses of the new Bills before us— Clause 226 of the Army Bill and Clause 224 of the Air Force Bill—providing for Orders in Council for up to five years, and then for the five-yearly review. The constitutional lawyers have apparently allowed Her Majesty's Government to get away from the bogy that the only way to preserve the liberties of the citizens enshrined in the Bill of Rights is to go through the farce of enacting the Army Act as a disciplinary course every year. My noble friend did not tell us the exact views of the constitutional lawyers in regard to the Bill of Rights, but they seem to have accepted that the Bill of Right does not stand or fall by the annual introduction of an Army Bill; otherwise I imagine they would not have allowed these alterations to be made.

I should like to offer one further reflection on the state of affairs which has caused the two Committees and the Bills to arrive ten years after the end of the last war. I feel very strongly that the Service Departments should have tackled the redrafting of both these Bills much sooner than they did. It was a difficult task, taking a long time, but the delays caused by the Lewis Committee and the subsequent Committee to examine the results of the Lewis Committee were given too much weight in arriving at the decision to put off the whole review of the Army and Air Force Acts until two and a half years ago. I feel certain that had these matters been taken in hand at what I venture to suggest was the proper time, the situation necessitating the appointment of a Select Committee would not have arisen. The matter would have gone forward in the ordinary way, the Bill being drafted in the Department concerned, with or without such assistance from committees as might have been required. Had that course been followed, there would have been no question of any special procedure.

To come to the Bill itself, I cannot help feeling sorry that the clauses dealing with enlistment are in the same Bill, for the enlistment clauses apply only to Regular soldiers; they do not apply to the Territorial Army, to Reserve Forces generally, or to the Home Guard. Yet all the other clauses apply to the whole of the Army at large. It would have been tidier to divide both the Army and the Air Force Bills into two parts. It might even have made simpler the task of dealing with the Bill of Rights, though as a layman I cannot be sure of that.

I am also glad to see that some of the remaining recommendations of the Lewis Committee, of which I had the honour to be a member, have at long last been implemented. I agree a good deal with the noble Earl, Lord Lucan, in his view that the drafting of the Bill in a great measure reflects the changed conditions in the Forces, particularly in the education of all ranks—not only of the soldiers who, by and large, commit most of the offences, but also of the officers who, by and large, have to try most of them. The wording, in every case that I have seen, represents an approximation to what one would expect in other walks of life. I feel it approximates much more closely where there is a comparison with the treatment of similar civil offences; and with the National Service man that has a great deal more importance now than it had in the old days, when the Army and Air Force Acts applied in peace time only to Regulars and to Reservists when under training. I would go a little further than the noble Earl, Lord Lucan, and say that not only does the drafting of the Bill reflect improved education, but it also has a good deal more regard than had the old Acts, at the time they passed out of use, to the operational conditions under which soldiers and airmen have to fight the Queen's battles. That, of course, applies equally to the redrafting of the older section, which was called "Billeting and Impressment of Carriages." If those clauses stand up to current requirements, they will do away with the large number of Defence Regulations; and those who prefer Statutes to Defence Regulations will have reason to bless the draftsmen of these two Bills.

To come back to operational conditions, I recall that there was a good deal of evidence before the Lewis Committee concerning the disposal of offences in forward positions and in the front line, and there were, if my recollection serves me aright, a certain number of witnesses who seemed to think that you could have some sort of "lawyer's delight" in the front line while you were trying to fight a battle. It is not easy to make sure that in the Bill as drafted there is no risk of that, because a good deal depends upon the interpretation of the Bill, the rules of procedure and the Manual of Military Law—if and when we are going to have one. I am glad to see that any attempt to do away with the field general court-martial has not succeeded, because I look upon the field general court-martial as an essential means of maintaining order in the field as opposed to maintaining order in the rearward portions of an army at war, which is another thing altogether. I hope that the powers of a field general court-martial and the procedure will not be tied up by a lot of regulations which make it impossible for a commander on active service to keep order in the way he thinks it should be kept. After all, there may be moments when, like the French statesman, one has a choice of evils and has to prefer injustice to disorder. Although those occasions are very rare, none the less, on active service they do occur and it is not much good trying to pretend that they do not.

I should like to ask my noble friend in front of me when we can expect the rules of procedure which I imagine we are going to have still, and the Manual of Military Law. The noble and gallant Earl, Lord Cork and Orrery, whom I am glad to see in his place, will no doubt also be interested in when we are going to have a new Manual of Military Law


Hear, hear!


—but for reasons rather different from those which cause me to be interested. It may be that the noble Lord, Lord De L'Isle and Dudley, has given his answer already and that the intention is to have the documents ready at the end of 1956, by which time the transitional powers lapse. If so, well and good: we have waited a long time, and we can wait until then. There is another point which arises out of modern operations and which affects the clauses dealing with powers of command. Most of the occasions when special powers of command are required seem to me, so far as I can judge, to be reflected in these Bills, but I am not clear whether there are powers under the relevant Bill by which British Forces can be placed under command, say, of N.A.T.O. commanders in Western Europe or, shall we say, under the command of Australian or New Zealand commanders in places like South East Asia. Both these powers are necessary, and I am fairly sure they are provided for somewhere. I have not been able to see them—though that is probably my own fault—in the Bills. I am sure, too, that the provision for placing civilians under Military or Air Force law under certain conditions will be nothing but advantageous to the civilians themselves. I can think of many cases where it would not do to think that civilians attached to our own Forces were being left as hostages to fortune in some foreign country and might be exposed, shall we say, to the rigours of something like Ruritanian law. I am sure that a moment's reflection will show that these provisions are very valuable and in the interests of those whom they affect.

I will not take up your Lordships' time any longer, because I think that those are the main points one needs to make from these Benches about these three Bills. I have talked generally about all three Bills, which, I think, and certainly hope, is in order. My noble friend, Lord Gifford, I believe, will be talking about some special aspects of the provisions dealing with offences in regard to flying. As to the transitional Bill, it seems to me to be all machinery, and to be good machinery at that. I think, therefore, that we on this side of the House shall all be glad to see these Bills have a Second Reading, and I doubt very much whether any of us will want to trouble my noble friend who sits in front of me on the Committee stage.

3.26 p.m.


My Lords, I am assured by those who are knowledgeable in these matters that the Report and the Bills which are under discussion by us to-day show an improvement upon the present position, and in that respect I welcome them. It is not that I have read this ponderous tome—I make no pretence about that. It is not that I am knowledgeable about these matters; indeed, I find myself in considerable difficulty in making any comments at all in this debate. I am not a lawyer; I have never been a soldier, and the only military training I have had was in the Boys' Brigade. And yet I remember that one of my earliest youthful ambitions was to follow my maternal grandfather in the Seaforth Highlanders. If I make some adverse comments upon the Bill, I do it under these very serious limitations, and I hope that your Lordships will recognise my difficulty.

I have read a good part of the Report of the debates on the Bill when it was passing through another place, and it appears to me that some sound points were made by the honourable and learned Member for Aberdeen, North, and others, notably the honourable Members for Kilmarnock and Edinburgh, North. And I think that they received from official sources very poor replies. In respect of much of what the Bill covers there seemed to be an underlying idea—and this applies more to where no alteration has taken place—that because the present position has prevailed since 1879 it should be sacrosanct. I do not agree with that view. And, though it might appear to be a curious day on which to make a reference to matters relating to Scotland—especially after what happened at Wembley on Saturday—I will venture to put in a plea for greater consideration for Scottish susceptibilities.

It seems to me that the debates in another place demonstrated what I can describe only as the obtuseness of the English mind. This does not amount to deliberate arrogance, but it comes, unconsciously, very near to that. The bland, comfortable assumption that because something is English it is therefore all right, is intolerable to people who, like the Scots, have the good fortune to live under a code of law superior to that which prevails South of the Border. Clause 70 (2) demonstrates this clearly, I consider. May I read that subsection to your Lordships? In this Act the expression 'civil offence' means any act or omission punishable by the law of England or which, if committed in England, would be punishable by that law; and in this Act the expression 'the corresponding civil offence' means the civil offence the commission of which constitutes the offence against this section. It seems to me all wrong that a Bill purporting to be a United Kingdom Bill should contain such slighting and wounding references to the country from which I come. My honourable friend the Member for Aberdeen, North, in another place set out a strong case and cited a number of examples of how this adherence to the law of England could work out to the detriment of Scottish soldiers, many of whom are to-day conscripted into the Army. I do not wish to take the time of your Lordshps' House to repeat these powerfully stated objections, but I ask the Minister to have them examined before the Committee stage is reached in this House. I ask him to agree that the answers given by Government spokesmen in another place did not meet the criticisms in a satisfactory way, and I ask him also to see that the Statute is amended in this House before all the stages of the Bill are completed.

I am dealing here chiefly with civil offences committed by soldiers, and I wish to cite to your Lordships a clear demonstration of the superiority of Scottish law to that of England. On March 21, in another place (it appears in Column 1812 of Hansard), the honourable Member for Edinburgh, North, moved an Amendment to Clause 75 to prevent the recurrence of a grave injustice done to a soldier by serious delay in bringing him to trial and thereby holding him in custody for no fewer than 140 days without trial. The honourable Member withdrew his Amendment after receiving certain assurances from the Parliamentary and Financial Secretary to the War Office, but I think an Amendment should be embodied in this Bill to prevent such a case from ever arising again.

Since 1887, Scottish law has made it impossible for any accused person to remain so long in custody without trial, I refer the Minister to Section 43 of the Criminal Procedure (Scotland) Act, 1887, which prescribes an outside limit of 110 days, after which, if not brought to trial, the prisoner must be released, except in the most exceptional circumstances. After 110 days without trial, he goes free. England, I understand, has no such safeguard for an accused person. This is a Second Reading debate and I must not go into too great details regarding possible Amendments. I claim, however, that there should be a general code of law applicable to the Army, taking into account the best legal practice known in the United Kingdom and not described as English law, although England, we admit, is the predominant partner in the United Kingdom. That would give Scotland the recognition to which she is entitled and would remove the grievance felt at being made subservient to English law.

As a final point, may I put a suggestion that has been made to me by a friend with good Army experience. It is that on entering the Army every recruit should be furnished with what I received when I entered the railway service, a book of rules—or its equivalent. I signed for it. Thereafter I was looked upon as being conversant with what was in that book. I am not suggesting that for recruits this should be the Manual of Military Law to which the noble Viscount, Lord Bridgeman, has made reference. I do not imagine that that would be a familiar book much read in the camp libraries, but I suggest that it should be a booklet that would give to a young man going into the Army a proper idea of what was expected of him. To-day young Servicemen are drafted into the Army with no knowledge of what they have to learn and of how they ought to conduct themselves. They may quickly find that, behind the friendly banter of the barrack room, there is strict discipline to be enforced, and they may easily find themselves in trouble. For instance, the fact that he was on familiar terms with his corporal or sergeant would not justify the young soldier, when ordered to do some task he did not fancy, telling either of these superiors to "go and chase himself." If there were a simple booklet indicating the duties of the soldier, that would, I suggest, bring home to him at an early date what was expected of him, and would prevent a great deal of trouble and heartburning during his service. This Bill represents an improvement on the present position but, notwithstanding that, I should like to see even further improvements made.

3.38 p.m.


My Lords, I rise to call attention to one specific point in the Bill. Clause 153 provides that where any process is to be served on an officer or soldier of the Regular Forces in connection with proceedings for maintenance and affiliation orders, it shall be deemed to be served on the defendant if served either on him or on his commanding officer, or if served by registered post. Subsection (2) of the clause provides that (2) Where any such process appoints a hearing at a place more than twenty miles from the place where the defendant is then stationed and his appearance in person will be required at the hearing, the service of the process shall not be valid unless there is left with it, in the hands of the person on whom it is served, a sum of money sufficient to enable the defendant to attend the hearing and return. Clause 153 re-enacts a section of the Army Act, 1881, which in turn was amended by the Army and Air Force Act, 1923. I suggest that subsection (2) should be deleted, because it is out of date and may cause hardship on the complainant. For example, as the clause is at present drawn, where a young woman applies to the court for a summons against a soldier on the ground that he is the father of her illegitimate child, with a view to obtaining an affiliation order, if the soldier is stationed more than twenty miles from the court she has to provide sufficient money, when the summons is served, for the soldier to be able to come to the court and to return to his unit. This is also necessary where a married woman applies for a separation or maintenance order on grounds of desertion or persistent cruelty. Very often the complainant has considerable difficulty in providing the necessary money, and it involves real hardship upon her. Cases have been known where it has been impossible for the complainant to raise the money, especially when the amount is substantial, and she has been deprived of the opportunity to bring her case to court. In 1881, when the Army Act of that year was passed, it may have been right and proper to provide for the payment of conduct money, because in those days the soldier was poorly paid; but I submit that it is quite unnecessary to provide for that in the Bill which we are considering to-day, because the soldier at the present time would always be in a position to raise the money necessary for his fare from his own money or by reference to his commanding officer, It must be remembered, too, that the clause is so framed that if a woman has an order against a soldier, and requires a variation of such order, she may also have to provide money for the defendant's return fare. It seems to me that this clause is antiquated and entirely unnecessary in these days.

I should like to try to forestall an argument which may be raised against me, which is that a woman who is placed in the position which I have outlined would be able to get assistance from the National Assistance Board. I have made inquiry about that, and I understand the position to be that if the complainant is actually in receipt of National Assistance at the time she makes her complaint, the Board will normally be prepared to make a grant to enable her to meet the expense. But the complainant might be in work and, therefore, excluded from the receipt of National Assistance; and in such a case it would not be possible for the National Assistance Board to make her any grant. One can well visualise a case where a complainant who is in work but earning only a small wage is unable to raise the necessary conduct money, which, in cases of long distances, might amount to as much as £7 or £9. As a magistrate I have come across cases of this nature, and I have good reason to think that many, if not most, magistrates would endorse what I have said on this subject. I do not think that a complainant ought to have to put up money to get her case heard. In extreme cases it can amount to a denial of justice, and it can enable a scamp to get off scot free when he ought to be made to pay. I would ask the noble Lord whether he will be good enough to ensure that this subsection in Clause 153 will be looked at, because I feel quite sure that it needs bringing up to date; and these matters ought not to be looked at in the light of 1881, but in the light of 1955.

3.45 p.m.


My Lords, your Lordships are more accustomed to hearing me talk about the Royal Navy than about the Royal Air Force. As your Lordships know, the Royal Navy does not come into this debate to-day, because it has its permanent Naval Discipline Act which, I may say, came in for extraordinarily little criticism from the Select Committee which examined it recently. However, I did see some years' service in the Royal Air Force, during which period I was at one time acting as a court-martial officer, and I should therefore like to make a few observations on the clauses in the Air Force Bill which deal particularly with flying and with certain other matters peculiar to the Royal Air Force. I think it is admirable that these Bills are no longer to be on an annual basis. Whatever traditional reasons there may have been in the past for the Army Act to be on that basis, there never was any excuse for it in the case of the Air Force Act; and it only came about because the Air Force arose mainly out of the Royal Flying Corps. It therefore followed that the first Air Force Act was almost a complete copy of the Army Act and was renewed annually. In my view, five years is a reasonable period after which the respective Acts should be reviewed.

With regard to Part I of the Air Force Bill, there are few differences. There are some in Clauses 4 to 8, because the Royal Air Force is still continuing with its old periods of re-engagement—that is to say, re-engagement for successive short periods—whereas the Army has gone over to a new scheme of engagement for twenty-two years, with three-year options to break that period of service. Whether the Royal Air Force is wise to keep to its old system of engagement, I do not know, but no doubt it has carefully considered the matter. There is a small point in Clause 15 which gives to a warrant officer who is reduced to the ranks the right to claim his discharge. This, I understand, was at one time strongly resisted by the Royal Air Force, as it was felt that to allow a warrant officer tradesman to take his discharge would be a great loss to the Royal Air Force, which had spent large sums of money in training him in his trade. It was considered that he would soon re-gain promotion if his conduct was good. However, I believe that the Select Committee did not agree with this contention, and the same provision is in both the Army Bill and the Air Force Bill.

Turning to Part II, one finds a number of differences, particularly in regard to offences while flying, offences of failure to maintain aircraft properly, and so on. Clause 24 deals with such matters as making false air signals, failure to carry out orders in the air, and action leading to the capture of an aircraft. These are serious offences which may give assistance to the enemy, and in certain cases they carry the death penalty. Clause 44 deals with wilful damage to aircraft, and Clause 46 deals with similar offences of a rather less serious nature—that is to say, negligent damage to aircraft. Incidentally, I am interested to see that, both in the Army Bill and in the Air Force Bill, Clause 46 contains a provision making it an offence for a man to fail to take proper care of a bird used in the public service. That, I imagine, must chiefly be concerned with the pigeons, which saved so many valuable Air Force lives in the last war.

Clauses 45 to 52 deal with flying offences, and these clauses, strangely enough, are repeated in both Bills, whereas the offences in the earlier clauses I have mentioned—Clauses 24, 44 and 46—are peculiar to the Air Force Bill. This seems to me rather inconsistent, and I should be glad if the noble and gallant Lord, Lord De L'Isle and Dudley, could give me some explanation. I understand that flying offences have been included because it is thought that at some time Army officers might be flying entirely under the orders of the Army, whereas at the present moment they are under Air Force discipline while flying. I hope that does not mean there is an intention of trying to evolve a new flying corps separate from the Air Force. Surely, whatever grounds there are for including these offences in both Acts, should apply equally to all the Part II clauses which I have mentioned.

I should like to say only one more thing, and that is that I welcome the simplification of courts-martial procedure. I think that even the noble Viscount, Lord Bridgeman, will admit that the Air Force is usually better behaved than the Army, and therefore courts-martial are much more rare. When I was serving in the Royal Air Force it was extremely difficult to find experienced presidents and officers to sit on courts-martial. I remember that on one occasion I had to send back some proceedings with no fewer than eighteen mistakes in procedure. The very aggrieved president rang me up and said, "I cannot think what you are worrying about, old boy. The chap obviously 'pinched' the watch and he is in 'jug'." It took me a long time to make him see that these very complicated rules of procedure had to be adhered to. On the whole, I think we should welcome both these Bills. The Select Committee have done a fine piece of work—we have been told today that they had no fewer than seventy-one meetings and it must have been an arduous task. I hope that both these Bills will have a smooth passage through this House.

3.53 p.m.


My Lords, I have the right to speak again only by permission of your Lordships, except in so far as I should formally move the Motions standing in my name, which are three in number. I do not propose to make a long speech in reply. I should like, however, to start by acknowledging the remarks of the noble Earl, Lord Lucan, and to say that with the general sentiments he expressed I find myself in agreement. It is right that the Bills which discipline the two Services should reflect as closely as possible the existing social and political conditions of our times, and I am sure that those who have the responsibility for drafting the regulations under these Bills when they become Acts of Parliament, as I hope they will, will bear that very much in mind.

If I may say so to the noble Lord, Lord Mathers, I feel certain, from my knowledge of the Services, that whether or not books or booklets are issued to National Servicemen, it is regarded as the duty of officers to explain to those entering the Services what are and what are not their duties. I would, with respect, submit to the noble Lord that verbal instruction in these matters is far more important than written instructions, because from my experience of the Services it is by example and verbal instruction that the best form of discipline is enforced and exacted. Considering the large number of our young men now entering the Services, I do not think we ought in any way to be despondent about the general codes of behaviour and the general enforcement of discipline.


When the noble Lord made reference to verbal instruction being better than the written word, he made me think of a saying that these verbal instructions are "not worth the paper they are written on." A young man perhaps has a better memory than most of us here, but I think the written word is very powerful; and nothing sticks like printer's ink.


I am sure we really mean the same thing, and I would not enter into a sterile argument upon this matter. From my experience of the Services, I think that example and verbal instruction in the circumstances of Service life are more powerful, but not exclusively so, than any potted version of military law. The noble Viscount, Lord Bridgeman, raised several points, some of which call for no comment on my part and some of which I feel I ought to say a word about. On the question of the issue of rules of procedure in the Manual of Military Law, I do not think I can give any firm promise, but merely say that it is hoped that these will be circulated in time to be absorbed when the existing rules of procedure lapse. I will not comment upon his animadversions on the delay in amending these Acts. In the main, that was in the time before Her Majesty's present Administration took office.

On the question of a separate Bill for enlistment. I would say that this point was considered. It is a technical matter. After careful consideration the Select Committee of another place decided against it, and after the careful examination they made I do not feel that we ought strongly to hold that they were in error in doing so. The Government have thought it right to adopt their recommendations. I was glad of the noble Viscount's commendation about field general courts-martial, and I hope that the regulations will reflect the views which he has expressed. On the question of command, as the noble Viscount knows, that is a Prerogative matter. As I understand it, where there is a Commonwealth commander there is provision under the Visiting Forces (British Commonwealth) Act, 1953. So far as a supreme commander of a nation which is not a member of the British Commonwealth is concerned. I believe it would be generally held that the actual discipline and powers of punishment should be administered only by British officers or, at any rate, Commonwealth officers; but, of course, the existence of the status of the supreme commander would have to be recognised by Her Majesty, I take it, under Prerogative.

The noble Lord, Lord Winster, referred to what is called, I believe, conduct money. That is a difficult and delicate, matter, as are all what I might call matters affecting the relationships of the sexes. Although I am glad to see that he is a protagonist for what used to be called the weaker sex and their rights, I feel it only right to even out the balance and say that there must be some protection for the so-called stronger sex—the "unfair" sex. The Select Committee looked at this matter; and although I agree, being responsible for the Air Force, that the world has shrunk and twenty miles is not what it used to be when the noble Lord joined the Navy, the fact remains that the Serviceman has also to be protected from improper, malicious and other appeals by the fair sex against him. Taking it all in all, experience has shown that, though fairness and equity cannot be completely achieved, these arrangements have, achieved it on the whole. Having said that, I will certainly see that the noble Lord's remarks are brought to the attention of my right honorable friend. They are certainly in my mind, but I do not promise that an Amendment will be submitted on this matter in Committee, because, as I have said, this is a difficult subject affecting also those who have relations as Servicemen.

On the question asked by the noble Lord, Lord Gifford, about aircraft and offences against aircraft and air material, I would say that paragraphs (b) and (c) of Clause 46 of the Air Force Bill are in a sense explanatory and arise from the fact that the Air Force is mainly concerned with aircraft and air material. Therefore it seems right to spell out in paragraphs (b) and (c) of the Air Force Bill those particular offences, but they are covered in general, as I understand it, under paragraph (a) of that clause in the Army Bill. So there is no real contradiction. One is fuller than the other. There is no intention to create a separate class of offences for the Air Force.

I do not intend to enter into any international controversy, but I do the noble Lord, Lord Mathers, honour for the eloquent way in which he posed the rights of Scotland in this matter. I think the noble Lord may not acknowledge it, but it is the fact that, living as we do under the same Crown, though being, of course, two Kingdoms in one partnership and having two codes of law, there are certain inherent difficulties if in Service conditions we try to administer two separate codes of law. I know this was argued eloquently by honourable Members in another place, but it was looked at, I believe, by the Lord Advocate among other legal luminaries. I understand that it was not found possible to duplicate the code, because, after all, it is quite difficult enough for officers who are not lawyers to administer in a fair and equitable manner the Army and the Air Force Acts, often in conditions where intricate constitutional and legal advice is not available.

What we want in these Acts—I hope the noble Lord will agree—whether the person arraigned is an Englishman or a Scotsman (of course, I do not leave out either the Irish or the Welsh from my consideration), is that justice shall be done in as swift and impartial a manner as possible and under a code which is intelligible both to the court and to the prisoner. That is the intention of these Bills. I have a Scottish grandmother and therefore I speak with at least a quarter of the enthusiasm of the noble Lord on these matters. I assure him that this matter has been looked at. I am sorry if it does not entirely meet his nationalist pride, but there are insuperable obstacles in the way of including a Scottish as well as an English code in this matter. I hope I have covered in the main the points which were briefly but ably put before your Lordships' House. Therefore, without more ado, I invite your Lordships to give, first of all, a Second Reading to the Air Force Bill.

On Question, Bill read 2a; and committed to a Committee of the Whole House.

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