HL Deb 28 June 1965 vol 267 cc714-22

4.54 p.m.

VISCOUNT FURNESS rose to ask Her Majesty's Government whether, in the interests of natural justice, it would be possible for representation of the deceased or the deceased's next-of-kin to be permitted at Service inquiries in substitution of inquests overseas in cases of accidental death, and if not, what protection in the eyes of the public there is for the good name of a deceased Serviceman. The noble Viscount said: My Lords, I rise to ask the Question standing in my name on the Order Paper. Before I do so, I feel that I must apologise most humbly to the noble Lord, Lord Shackleton, and to the House for not being in my place to ask this Question when it was put down a week ago. Your Lordships will know the reason for it. My information as to the length of time to be occupied by the previous business was faulty, but it was my own fault that I was not here to ask the Question. I do not propose to expound to your Lordships at any length about this question which, in one sense, is of minor importance, in that only small numbers of persons are involved, but which, in another sense, affects the rights of the subject and natural justice, which can never, and must never, be unimportant to your Lordships' House.

The Parliamentary history of this question is that my honourable and gallant friend the Member for Hemel Hempstead asked what your Lordships would call a Starred Question in another place on November 30, 1964. My honourable friend received what he considered to be an unsatisfactory answer to his Question, and gave due notice that he would raise the matter on the Adjournment. On March 8 of this year he managed to catch Mr. Speaker's eye during the debate on the Army Estimates and received no reply on the Floor, probably because the time that the Minister had to reply was very brief, although my honourable and gallant friend subsequently received a reply by letter. I apologise to your Lordships for this rather long introduction, but I am seeking to show that my honourable friend had played fair with the Ministry of Defence in another place and given them quite a few opportunities to reply to this Question.

The problem, stated as succinctly as I am able, is that the deaths of Servicemen who are killed accidentally in England are subject to a two-pronged investigation: the one by a Service board of inquiry, the proceedings of which are confidential, and the other by a civilian inquest. At the former, the next of kin—parent or wife—are not represented, but at the coroner's inquest the next of kin can be represented, and the verdict is, of course, made public. So far as I am aware, nearly all the countries overseas where Her Majesty's Forces are currently serving, with the exception of the Federal Republic of Germany, follow English legislation in this regard. Therefore, it is primarily Germany with which I am concerned.

It was in this context that the noble Lord the Minister of Defence for the Royal Air Force very kindly gave me in a Written Answer some figures regarding accidental deaths of Servicemen in Germany. I do not propose to bore your Lordships with the details, but. ignoring the very high figures for 1947 and the high number of deaths in 1948 (which hardly, I should have thought, reflect the scope of the problem which we are considering to-day), the average number of fatal accidents in Germany in the years 1949 to 1964 was 85½; the highest number occurred in 1955, 112; and the lowest was in 1958, 53. To be fair to the noble Lord, he has entered the caveat that this figure includes suicides, as it is not possible to exclude them from the totals. However, the question of suicides strengthens my case rather than weakens it, because the possibility of a death by suicide or when the balance of the mind was disturbed is surely one with which a coroner's inquest in England would be directly concerned.

I am advised that in Germany there is no procedure akin to a civil inquest and therefore it would be improper and illegal to hold one there. There are, however, several possibilities that could be considered. The first is that an inquest be held in the United Kingdom: but the disadvantages to this course of action are many. The major one would be that there would be no power, and could be no power, to compel the attendance of witnesses who are citizens of the Federal Republic of Germany. I understand from the answer given to my honourable friend the Member for Belfast, North, on November 30 last by the Minister of Defence for the Royal Navy, in reply to a supplementary question, that Her Majesty's Government have not, however, wholly rejected this method of procedure.

A second way which would be no doubt very cumbersome is to establish under military law a special court as close as humanly possible to an English coroner's court. This would have to be under a new procedure which would require legislation, which is undoubtedly a drawback in these days (and when was it not so?) of a heavy Parliamentary programme of legislation. A third and, perhaps, more practical method of achieving this end would be that a representative of the dead soldier would be permitted to be present at the Service board of inquiry.

It has been stated, in correspondence, on behalf of Her Majesty's Government that the Select Committee on the Army and Air Force Bill of another place considered this matter in 1961, and that the relevant provision of the Army and Air Force Act, 1961, resulted from that consideration. With respect, my Lords, I would submit that the Select Committee did not have their attention drawn to this specific point. In this connection, I should like to quote the relevant paragraph from the annex to the Memorandum submitted on behalf of the then Secretary of State for War and the Secretary of State for Air to the Select Committee on February 21. 1961: A board of inquiry is a purely domestic investigation held to establish the facts of a case to assist Service authorities to determine whether there has been negligence in complying with Service regulations, and whether Service procedure, etc. should be improved. The purpose of this subsection is to make it clear that the right of attendance and representation at a board of inquiry is restricted to persons in the service of the Crown whose character or reputation might be affected adversely by the findings of the board … From a study of the proceedings of the earlier Select Committee it appears that their intention was to incorporate the rules in these Acts without changing their effect. Subsection (4) of Section 135 of the Army and Air Force Acts, 1955, provides that any person who may be affected by the findings of a board of inquiry shall have an opportunity of being present and represented. Some have read this as having a wider effect than the previous rules and requests have been received for representation from private individuals, contractors and so on, whose activities may be mentioned at a board of inquiry. The presence of such persons is inappropriate at a purely internal domestic inquiry.

The only relevant evidence that I can find appears to me to have been taken before the Select Committee a week later, and here I refer to Questions 133, 134 and 135. 133 … Subsection (3) … —which is the one we are dealing with— … is pretty well consequential. I should like to ask for a little explanation, if I might. Is it that a contractor, for example, who might be affected is permitted or is not permitted to be present at a board of inquiry?—Is not. The object of this amendment is to limit the people who have the right to attend the courts of inquiry or regimental inquiries to people in the service of the Crown, because they of course may be affected by the findings of the court of inquiry. 134. That does not preclude them from being called to attend as witnesses?—No. 135. You mean by 'attending a court of inquiry' to sit on it?—The right to be present during the whole of it and to cross-examine witnesses. Surely, my Lords, it is not argued that the next of kin of a soldier killed accidentally is considered to be on a par with a contractor.

I gather that it is the official view that a Service inquiry cannot be a substitute for a coroner's inquest, because a judicial inquiry into a death is a matter for the civil authorities, and in this respect a Serviceman is in the same position as a civilian. I accept this so far as it goes, and it is an admirable system, I am sure, in England and in former British possessions where the law in this respect parallels our own. But is it fair, just and equitable, when our Servicemen are serving in time of peace in a country as closely allied to us by the North Atlantic Treaty as the Federal Republic of Germany, when, by some accident of history producing a different legal system, there is no provision for an independent legal inquiry? This seems to me manifestly unfair.

This afternoon I should like to put two specific questions to the Minister. First, do Her Majesty's Government agree that some procedure akin to the English coroner's inquest should be available in the interests of natural justice, to protect the good name of a deceased Serviceman when the circumstances would seem to necessitate it? If so, which, if any, of the suggestions for achieving this do they favour; and if none, what solution to the problem do they propose?

LORD SANDFORD

My Lords, I should like to endorse what my noble friend has just said, and particularly the third of his suggested methods of dealing with this problem. It seems to me that if we could revert, so far as next of kin were concerned, to the situation as set out in the Army Act, 1955, we should be in a position to do what he is asking. The Act, if I may read it again, provides, in Section 135(4), that Board of inquiry rules shall contain provision for securing that any witness or other person who may be affected by the findings of a board of inquiry shall have an opportunity of being present, and represented, at the sittings of the board or such part thereof as may be specified by or under the rules. That Act was taken, from the point of view of the next of kin of a deceased soldier, one stage further, in that the rules require that persons who might be affected by the findings of the board of inquiry should have notice of the board of inquiry and an opportunity of being present. It seems to me that if we could revert, so far as next of kin were concerned, to that situation, all that my noble friend is asking for could be secured.

I agree with him that what was considered by the Select Committee on the Army and Air Force Act in 1961 was concerned with reducing the claim of contractors to be present at boards of inquiry, the results of which were likely to affect them, and I can quite see the necessity for doing that. But it seems to me that that Committee did not consider the effect of the change in the Army Act which they were trying to make in respect of contractors. They did not foresee that it would preclude the possibility of next of kin being able to be present at these boards of inquiry. If that could be set right, it seems to me that their very important claims could be taken care of. The Army Act, 1955, includes in the subsection which I have just read out a statement that such persons shall have an opportunity of being present … at such parts thereof of a board of inquiry as may be specified by or under the rules". This subsection takes care of the fact that some parts of the board of inquiry may well be confidential, may well be domestic to the Service, and may well be unsuitable for the presence of next of kin. But it seems to me that there is no reason why they should not be there for some part of it.

5.8 p.m.

THE MINISTER OF DEFENCE FOR THE ROYAL AIR FORCE (LORD SHACKLETON)

My Lords, I know that the Question put by the noble Viscount is one of very real concern to the next of kin of Servicemen who have been accidentally killed. I can say to him—and I am sure he would accept this—that this matter has been considered very fully and very sympathetically in the Ministry of Defence, not merely by myself but by my honourable friend the Minister of Defence for the Royal Navy who exercises a general responsibility in personnel matters. I am very well aware, too, of the feelings of the honourable and gallant Member for Hemel Hempstead. It is quite natural for us all to ask whether the interests of a man who has died are properly safeguarded at Service inquiries, since the rules do not provide for the attendance of his representatives.

I am afraid that I am not going to make a very helpful reply but I shall do my best, as has been done before, to explain the reasons why we cannot go further in meeting the wishes of the noble Viscount. He has already quoted very fully from certain statements that have been made in another place and elsewhere, but I must emphasise that we cannot attribute to a Service inquiry characteristics which it does not, and could not, possess. A Service inquiry, as the noble Viscount himself said, when quoting, is domestic. It is held, essentially—and I do want to emphasise this—to adduce facts and to report to higher Service authorities. Indeed, what is said at a Service inquiry cannot be used in evidence at a subsequent court-martial. It is not a court of law, and it is not in any way a substitute for an inquest. Where an inquest can be held, it is nor mally held in addition to a board of inquiry, as happens in England.

But at a Service inquiry the Service is exercising the right and recognising its responsibility to undertake a private investigation of the sort which any large organisation, commercial or otherwise, might be expected to hold in any circumstances which require such an inquiry. The rules on the taking of evidence and the examination of witnesses differ from those governing a judicial inquiry. Indeed, in certain respects—although I am not sure whether or not this is a good argument—a different practice exists even among the Services themselves. All Army and Air Force boards take evidence on oath, and there is provision for this by Statute: whereas, by contrast, the Royal Navy has no such powers. Naval boards of inquiry are non-statutory, and no oath is taken by witnesses.

I should like to emphasise the difference between these essentially (and I apologise for using the word) domestic or internal proceedings and a coroner's inquest. An inquest is a judicial inquiry, it is normally held in public and the verdict is made public. But, as the noble Lord admitted, it is not by any means a universal procedure. It is an institution to be found in England and in countries which have followed the English system of law, but, for instance, it does not exist in comparable form in a number of other countries, and certainly not in a comparable form under Scottish law. The noble Lord talks about inquests overseas. I realise Scotland is North of the Border, but it is certainly not overseas. In Scotland, as many noble Lords will know, a report is made by the police to the procurator-fiscal, who will conduct his own investigation and may later, if he so decides, institute a fatal accident inquiry, but not necessarily.

My Lords, I hope your Lordships will agree that, where the procedure for coroners' inquests does not apply, we really could hardly suggest that it should be introduced—I know the noble Viscount is not suggesting it, but we could not do this—quite independently of the Services, into the domestic civil law of another sovereign State. If we were thinking of widening the scope of coroners' inquests we should have to start by introducing this English procedure into the law of Scotland—a prospect which would no doubt appal some of my noble friends.

The noble Viscount suggests that there is an issue of natural justice involved, since the good name of the deceased Serviceman may be impugned by a board of inquiry which has not heard the case for the deceased. I always hesitate to get far into a discussion of what is natural justice, since this is a difficult concept for a layman, and possibly even for lawyers, to be precise about, but I think that the view that natural justice is involved overlooks the fact that the proceedings are essentially confidential and, indeed, the important thing is that they should be confidential. In all three Services the proceedings of an inquiry, together with the conclusions of higher authorities, are confidential. They are not revealed outside official circles, although established facts may be passed on to the next of kin of the deceased. Since there is no publicity so far as the inquiry is concerned, the question of clearing a dead man's name does not arise so far as the inquiry is concerned.

I agree that, by any definition of "natural justice", a man who is likely to be affected by proceedings is entitled to be heard, but it is the regrettable nature of the situation that a dead man cannot be heard. Indeed, we must remember—although the noble Lord may not consider this entirely satisfactory as an analogy—that it is not possible in civil law to launch an action for libel or slander on behalf of a dead man. Therefore, I think it is of prime importance to keep this principle of confidentiality.

If we were to provide at Service inquiries for the representation of a dead man or his next of kin, we should undermine the confidentiality of the particular board and, indirectly, of boards of inquiry in general, and it is possible that the good name of someone else, including somebody who may perhaps have died in the same accident, might also be thereby impugned. We should be changing the whole character of the proceedings. Indeed, we should have to evolve a quite new form of inquiry in addition to the existing board of inquiry. I am not sure whether that is not, perhaps, what the noble Viscount would like, hut it is not, of course, the basis of his Question. But, since this new form of inquiry would still have to be under military auspices, it would technically be a board of inquiry, to the prejudice, in the public eye, of boards of inquiry under current rules.

Much as I should like to meet the noble Viscount on this—and, as I say, I did discuss this fully with my honourable friend the Minister of Defence for the Royal Navy—we cannot escape from the logic of the situation. A Service inquiry is for Service purposes, and its procedures must be framed in that light. It has nothing to do with any form of inquiry which may be prescribed by civil law; and, if the civil law does not provide what the noble Viscount regards as a satisfactory procedure, we cannot, I fear, find a remedy by altering the procedures of the Service inquiry.

The noble Viscount asked me a particular question as to how the good name of the particular Serviceman can be preserved. I have, as we all have, the greatest sympathy with the natural distress of bereaved relatives, but I do not think that we can get over the criticisms made by the noble Viscount in this way, and I cannot, therefore, accept them as valid in these particular terms. I myself have seen something of boards of inquiry and know just how dangerous it might be if, in certain circumstances, people under great stress and emotion had access to certain information which might mislead them into completely wrong conclusions. My Lords, I think the best way of protecting the memory of Servicemen is to remember that the Services always are at pains to respect the memory of their dead colleagues.