HL Deb 28 November 1966 vol 278 cc543-64

6.0 p.m.

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

Moved, That the House do now resolve itself into Committee.—(Lord Shackleton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AIREDALE in the Chair.]

Clause 1 agreed to.

Clause 2 [Power of Defence Council to make regulations as to engagement of persons in regular forces]:

LORD THURLOW moved, in subsection (4), to leave out words after the first "and" down to and including "excepted case,". The noble Lord said: For many centuries Parliament has kept close control of the powers given to the Defence Council and its predecessors, the Service Ministries, relating to the numbers of officers and men in the Services, the conditions of service, terms of enlistment and the exercise of discipline. Every year money has to be voted, and the numbers of men that may be maintained, including civilian employees, agreed. I have myself held the appointment, in what was then the vast Middle East Command, as Staff Officer responsible for manpower and establishments, and not only did I, and the Deputy Command Secretary, inspect every headquarters and local unit, but we had to satisfy ourselves that every rank was worthy of its responsibilities and that no passengers were carried, and also that local civilians, when available, should relieve Servicemen wherever possible.

This strict control under the close supervision of Parliament, reduces wastage to a minimum. Up till now, terms of enlistment and conditions of service of personnel for the Army and the R.A.F. have been laid down by Act of Parliament, and can be altered only by Act of Parliament. Great care is exercised. For example, in 1961 the House of Commons spent eight hours discussing terms of enlistment and conditions of service, and here in your Lordship's House, the effect on recruiting of every Service measure is the subject of interventions by many of your Lordships. The Reserve Forces Bill provided a recent example of that. The Bill we are now discussing replaces this system by empowering the Defence Council to alter conditions of service and terms of enlistment by regulation—an important change so far as the powers of Parliament are concerned. This requires close examination.

In the Select Committee on this Bill in the other place two main reasons were given by the Government for this proposal; first, that it would be easier for the Defence Council; and secondly, that it would be quicker. Obviously, it would be easier for the Defence Council to amend or inaugurate any change without Parliamentary approval. So that argument is not enough. The second argument, that it would be quicker, is a reasonable one. In the past up to five years' delay has been experienced, and in these days, when the Armed Services are in competition with industry for the far larger numbers of skilled and potential technicians they now require, there is no time for delays of this nature. So enlistment regulations might have to be altered quickly to take advantage of prevailing conditions. Therefore, we have no objection to a change being made in the law, provided that the procedure is such that Parliament still has the last word and final authority.

As it stands, Clause 2(4) provides for regulations being made by statutory instruments of two sorts. Where it repeals or amends an Act of Parliament, a draft has to be laid before Parliament, and no action on the regulation can be taken for 40 days. Where it does not, the regulations come into force but are subject to annulment by either House during a period of 40 days. My Amendment seeks to ensure that all statutory instruments made by the Defence Council under this clause are laid in draft. I do not seek the Affirmative Resolution procedure, which requires the affirmative vote, because that would take up Parliamentary time, even if the Resolution was not objected to. But we suggest that all these statutory instruments should be laid in draft form, and should come into force unless Parliament passes a Resolution that they should not be acted upon.

The effect of my Amendment, therefore, will he to prevent a regulation from taking effect until 40 days have elapsed after it is tabled. This is not a long period when compared with the delay which exists to-day, of up to five years, and it gives Parliament time to query, and if necessary annul, the regulations before they begin to be implemented, and not after. For if terms of service and enlistment subject to the procedure which the Government propose were annulled at some period within the 40 days, Servicemen would have been admitted from the day the regulation was laid until it was annulled, and their terms of service would have no legality; and it is by no means inconceivable that, before the 40-day period elapsed, the Ministry might have second thoughts, just as the Government have had second thoughts on Clause 25 of this Bill after it has been through all its stages in another place, including two Second Readings. The Defence Ministry would be unwilling to withdraw an enactment which was already being acted upon. But this would be easily possible if no action had been taken on it until the period for Parliamentary approval had expired. A fresh draft would then be laid before Parliament, and no harm would be done.

Another point which was not made in another place occurs to me. The Ministry of Defence and its policies are to a large extent controlled by the Treasury. All projects, large and small, have some financial consequences, and are therefore subject to Treasury approval, not least among them conditions of service. Frequently, the best plan, from the Ministry's point of view, has to be modified because of expense, and a cheaper and sometimes inadequate scheme adopted. Though we may agree to give more power to the Ministry of Defence, the Ministry will always have to obtain Treasury approval for its proposals and it might not be able to obtain approval for a much-needed regulation. In these cases, Parliament might consider that the needs of the country should override Treasury objection, and that more generous conditions of service should be offered. Therefore, Parliament must have the opportunity to study new regulations and, if necessary, to annul them.

I know that the Government have not asked for power for the Ministry of Defence to make regulations which are not subject in any way to Parliamentary approval. But what they are doing is to propose that there shall be amend- ments of regulations which will take effect from the day they are laid before Parliament and will be acted upon even if Parliament sees fit to annul them later. In these circumstances, I think that my Amendment is a reasonable one. It provides a safeguard without imposing a long delay or taking up Parliamentary time in cases where no objections are made. I would ask the Government to accept it. We believe in flexibility in regulations such as these, but we are concerned that proper control should remain with Parliament. I beg to move.

Amendment moved— Page 3, line 25, leave out from beginning to ("a") in line 31.—(Lord Thurlow.)


I should like to support the noble and gallant Lord, Lord Thurlow. There is no need for me to make a long speech because I agree with everything he has said. It is most important in all these cases that the rights and the knowledge of Parliament shall be retained. I feel that the suggestion he has made is a most practical one, and I cannot for the life of me see why the Government should not accept it.

6.10 p.m.


I think there is no difference between the two sides of the Committee about the need for Parliamentary control of the Armed Forces. That is common ground. Again, it is further common ground between us that the Affirmative Resolution procedure for regulations covering terms of enlistment and service is too unwieldy a method of controlling this type of regulation, and too wasteful of Parliamentary time. But, having said that, I think that the noble Lord, Lord Thurlow, when he speaks about 40 days, has forgotten one important fact. We are not, of course, taking 40 days as a calendar month and ten more days. We are speaking of 40 working days of this House and the other place. This means that if, shall we say, a regulation were tabled in July and had to await the complete passage of time, including working time, then that regulation, tabled in July, might not become effective until November—that is to say, if the regulation had to be laid in draft in the first place in every case. With the best will in the world, we cannot exactly harmonise our administrative and legislative requirements with the Parliamentary calendar.

For this reason it was felt that in cases where new regulations were being laid—and, after all, these do not cover matters of prime importance, but relate to matters which often require rapid reaction by the Defence Council to the existing circumstances—we felt that it would be easier and quicker to table the regulation and allow the proposals to come into effect immediately. This applies in relation to new proposals. If, of course, we are amending existing legislation, then the tabling of a regulation in draft—the procedure which the noble Lord suggests should apply to all forms of regulation—is necessary and desirable. We are changing existing law, and Parliament must have time to consider it. For that reason we propose this alternative measure where existing legislation and decisions of previous Administrations are being altered.

I do not believe that giving the Defence Council the power to act quickly, subject always to annulment of these regulations by either House of Parliament, is taking away from Parliament its right to control the Armed Forces. In the course of the Parliamentary year we can debate on the Affirmative Resolution the prolongation of the Army and Air Force Acts; there is also an occasion for debate when the Estimates are presented, and there are at least two occasions in the year when set-piece debates on the three Armed Forces can be arranged. In this particular case, when we are considering regulations which are proposed under this Bill, we are always in a position to criticise the Executive and to amend its proposals. All we are asking is that in certain cases where decisions of the Defence Council do not affect existing legislation we should be enabled to act quickly without taking away from Parliament its power to reverse the decisions of the Defence Council.


I am sure the Committee is most grateful to the noble Lord, Lord Winterbottom, for his explanation, but I wonder whether the matter ought not to be thought about once again—I know that it has been dis- cussed before. The noble Lord will tell me if I am wrong, but I believe that hitherto the situation has been that, until this Bill came forward, Parliament has dealt with a large number of these matters by Act. In other words every line of a Bill was gone through in all stages in both Houses and has been subject to great scrutiny.

There are two points on this matter. First of all, it indicates that Parliament is extremely jealous of the detailed matters related to enlistment affairs. Secondly, hitherto it has taken a great length of time to get any changes made. What I understand is being done here is to introduce some sort of compromise: that, instead of the Government having to go to Parliament for a complete new Bill every time, we are now giving the Defence Council power to make regulations. I believe that the Defence Council and its predecessors had other powers heretofore to make regulations which were not even statutory instruments at all. It may be that these are going to be promoted, as it were, so that whereas previously they were instant regulations, they will now become statutory instruments and therefore will be subject to Parliamentary approval of one sort or the other. There is a sort of two-way trend, on the one hand from an ordinary Act of Parliament, and all the time which that entails, and, on the other, from the instant regulation powers subject to no form of approval by Parliament at all. Here we meet in the middle.

The crux of the matter is that whereas the effect of the two methods of regulation-making powers is not very different, there is one very important difference. In a case like the one quoted by Lord Winterbottom, where regulations are laid in July and cannot necessarily be finally through the Parliamentary process before November, then throughout all that period men have been enlisted and other matters have been carried out under them. I am not sure that my noble friend Lord Thurlow was right when he said that if the regulation were annulled all the things which had been done before that moment under the regulations were thereby also annulled. I do not believe that that is the case. On the contrary, I think that all those people who had been enlisted under the regulations which were subsequently annulled would have been validly enlisted and would be bound by the terms of these regulations, even though they subsequently came to grief.

In those circumstances, Parliament is to be presented with a strong argument against rejecting the regulations altogether, because there is no power to amend them anyway. What is going to be said is: "These powers have been in force since July", and some noble Lord in charge of the Department will come along and say that there have been 5,000 or 6,000 men enlisted in the various forces under these regulations, and that it would make the whole thing complete folly for either House now to throw them out. All that would happen would be that there would be 5,000 or 6,000 men who had been enlisted under regulations which were then annulled: these men would be in a group on their own, and the whole thing would have to be started again, and their successors would probably be enlisted under other regulations. If we are coming to a compromise whereby complete freedom and complete Parliamentary control will meet in the middle, would it not be better, even at the expense, on occasion, of a few months' delay, to use the draft procedure?

It is all very well to look at subsection (4)(b) and say that in the case where all those matters which have previously been dealt with by the Bill itself the immediately succeeding regulations will certainly come before Parliament in draft, and therefore will be able to be discussed before they come into force. That is quite true. But the second-generation regulations will not come under that paragraph at all: they will come under the procedure in paragraph (a). So that what we are going to have is an erosion of Parliamentary control immediately after this Bill becomes law. The matters on which Parliament has previously insisted there shall be detailed consideration will still be subject to the draft procedure, but soon the position will be whittled away and after a little we shall get nothing but these regulations under paragraph (a), which are subject to annulment.

I know that it is late in the life of the Bill to mention this, but I believe that it would be a good thing if noble Lords opposite would consider the matter again, for I feel that it would not be a very great inconvenience to deal with the matter entirely under paragraph (b).

6.19 p.m.


Parliament is always sympathetic on this subject and is rightly suspicious of Governments', of all hues, seeking to find a convenient way to conduct business without unnecessary delay. I have heard many debates on this subject, particularly in another place. However, I consider that we are making rather heavy weather of this particular matter. This subsection is confined to a comparatively small range of powers. It certainly is not concerned with rates of pay. It is concerned basically with terms of engagement—the sort of matter which an employer deals with pretty quickly, and on which he certainly would not dream of going to the board of the company.

For historic and valid reasons, Parliament has always exercised a jealous control over matters of this sort, but of course, as the noble Lord is now aware, this power has never existed with regard to the Royal Navy. The Royal Navy has been able to recruit without reference to annual, biennial or quinquennial Acts of Parliament. But the fact that we have had a lengthy and cumbersome procedure in the past is not, to my mind, an argument in favour of inserting a piece of cumbersomeness into the procedure which we finally adopt. If noble Lords had felt as strongly as they have suggested they do, I am surprised they have not sought to adopt the Affirmative procedure. This is classically an example of regulation making power which is best dealt with by Negative procedure, and it seems to be a quite unnecessary complication to insert these 40-day delays.

A couple of years ago, I was very anxious to insert a break-point into the six-year engagement arrangements for the Women's Royal Air Force. I was prevented from doing so because I had to wait for an Act of Parliament. But if that particular moment had been at the end of July, as my noble friend suggested, I should certainly have wanted to move quickly. Recruiting figures and recruiting trends are very volatile, and I think it is reasonable that whatever Government are in power should be allowed the maximum flexibility in what they do, subject always to the ultimate supervision of Parliament. I am not sure that I really find the argument with regard to the Treasury convincing. If Parliament think that the Government have been unduly mean, they can always bash the Government and the Treasury by carrying a Prayer against the Order. No Government are going to expose themselves to that sort of situation. But the ultimate power in this matter rests in Parliament, and I hope that this procedure will now be regarded as an honourable compromise.

The noble Lord made a point which is entirely valid, that of course under subsection (4)(b) it will be necessary to lay a draft before Parliament, and his case is that this particular control will be steadily eroded. I am sure it is right, if we are amending an actual Statute—this is a matter of constitutional propriety—that that amendment should be laid in draft, but it is not necessary when we are dealing with Orders. This is almost a matter of respect for the Statute, as opposed to the statutory instrument. Again, it is necessary that Parliament should see that this is laid in draft, because it is conceivable that a Government might go beyond what they ought to do in relation to the Statute. But once that is settled, then the powers are restricted. It is only within that area that subsequent matters can be dealt with by Order under the Negative procedure.

Having listened to the debate, having read very carefully the arguments, and having at one time been attracted by some of the arguments, I am quite satisfied that we have arrived at the right balance in this matter. In these circumstances, I hope that noble Lords will accept this procedure. We have not been given an example of the type of Order or the type of amendment condition which noble Lords opposite might have thought was one which they would have liked to see in draft, in case they wished to annul it before it came into force—


Just on that point, I should have thought, with great respect, that it would be an awful mistake for us to suggest the type of matter which we to-day might think was objectionable in this respect, particularly as the noble Lord says that these are matters which fluctuate extremely. Surely it would be a very bad thing if we were to try to indicate what we at this moment might consider not objectionable but open to question. I should have thought that that was not the right thing to do to-day.


I would have thought that the noble Viscount had quite destroyed his own case. He has said that it would be impossible to foresee circumstances in which one would like to see a statutory instrument laid in draft.


I did not say that. I could easily foresee circumstances. All I am saying is that I think it would be a pity to say what they are.


I think it is an awful pity that the noble Viscount will not say what they are, because I want to be convinced. The clause sets out very clearly the type of matters which will be covered by these Orders. It is very easy to imagine, even by looking at existing terms and conditions which are available to any noble Lord to ascertain, ones on which it would not be right to waste the time of Parliament, and indeed, to delay this rational and effective operation of Government in relation to recruiting and such matters. It is to my mind quite unsatisfactory that we should, without some sort of valid reason, abandon a procedure which is now proposed and which provides the ultimate Parliamentary control. These matters come under the supervision of Parliament, and if Parliament does not like them it can annul the Order.

There are occasions when it is right for the Opposition to die in the last ditch for the protection of Parliamentary freedom, but I can assure the noble Lord that this is not such a major issue and I hope he will now agree to let the matter go. It seems to me that we have arrived at what is a proper compromise. In this matter we are imposing on the Navy a restriction which has never existed before, and this seems to be the right sort of balance which we have settled on.


I am not entirely convinced with the arguments of the noble Lord, but I see the point about the 40-day period. It seems rather odd that we cannot get some better system in Parliament, and that this regulation, whether it is going to be for a period of 40 days or 140 days, should depend entirely on Recesses and such things. But that is the procedure and there it is. I still think that our compromise solution is a better one than the noble Lord's, but I do not feel violently strongly about it and I have no intention of dying in the last ditch on this. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clauses 3 to 24 agreed to.

Clause 25:

Jurisdiction of civil courts

25.—(1) The Army Act 1955 shall have effect with the substitution, for section 133, of the following section:—

"133.—(1) Where a person subject to military law— (b) has been charged with an offence under this Act, the Air Force Act 1955 or the Naval Discipline Act 1957 and has had the charged dismissed or has been found guilty of the charge by his commanding officer or the appropriate superior authority, a civil court shall be debarred from trying him subsequently for an offence substantially the same as that offence; but except as aforesaid nothing in this Act shall be construed as restricting the jurisdiction of any civil court to try a person subject to this Act for an offence.

6.29 p.m.

Lotto SHACKLETON moved, in subsection (1)(b), to leave out the words after "this Act" down to and including "of the charge" and to insert "and has had the charge dealt with summarily". The noble Lord said: Before I deal with the Amendment, let me say that the noble Lord, Lord Ogmore, raised a very interesting point on Second Reading with regard to this clause, and it may be that in discussing the Amendment we shall have to go rather wider. Since the noble Lord, Lord Ogmore, has put down a Motion to leave out Clause 25, I shall try to confine my remarks as much as possible to the Amendments which I am about to move, and if they are acceptable to the Committee we can then have a more general debate on the Question, Whether the clause shall stand part of the Bill? Obviously, I have to go into the basis of the clause to explain these particular Amendments, but if noble Lords want to go wider, then of course we must.

I should like to explain the principle of this clause. Its purpose is to bring the law applying to the Army and the Royal Air Force into line with the Common Law principle that a person should not be tried twice for the same offence. The law applying to the Navy is already in line with that principle. It is against that background that I should like (to turn to the Amendments. These Amendments have two effects. They are designed to correct a technical defect and also to make what is no more than a drafting change.

The technical defect is that, under Section 77(4) of the Army Act 1955, when a commanding officer has investigated a charge against an officer or soldier which he cannot try, the commanding officer—and I quote may dismiss the charge if he is of opinion that it ought not to be further proceeded with"; and, in the Air Force Act, the wording is similar. The words "has had the charge dismissed" in the new section, Section 133(1)(b), which is set out in Clause 25(1), therefore have the effect of preventing a person subject to military law from being tried by a civil court if his commanding officer has dismissed a charge which he has no power to try. Although it seems right (we shall come on to this in a moment) to bar the second trial of persons subject to military and Air Force law—and I do not want to prejudge the issue on this—we ought not to bar trial by a civil court if the accused has, in fact, never been tried at all.

It may be of interest to remember that the civil equivalent of the proceedings mentioned in Sections 76 and 77 of the 1955 Act in cases with which the commanding officer has no power to deal summarily is committal proceedings before a magistrates' court when the members of that court are sitting as examining justices. If they have no power to try the charge before them summarily, it is their function to decide whether or not to commit the accused for trial by a higher court; and, if the accused is discharged, he can always be tried later for the same offence because the committal proceedings do not constitute a trial.

It is perfectly reasonable, as I am sure your Lordships would agree, for a commanding officer to end Service disciplinary proceedings when he cannot try the case, as commanding officers are held responsible for the discipline and efficiency of the units they command; but it is a very different matter for them to prevent a civil court from trying a charge which they themselves cannot try and where a civilian may be involved. The replacement, therefore, of the words "has had the charge dismissed" in Clause 25(1) by the words "has had the charge dealt with summarily" will ensure that the new section, Section 133(1)(b), proposed by Clause 25, bars trial by a civil court only where there has already been a summary trial. There is a definition of what is meant in Section 77 by dealing summarily with a charge in each of the 1955 Acts. That is the main case for this Amendment.

The drafting point, on which I must confess I was myself misled at first, is this. The references to the Air Force Act 1955 and the Naval Discipline Act 1957 in the new Section 133 at the end of subsection (2) of this clause are unnecessary as a matter of drafting. It is only necessary for each of the 1955 Acts to bar the subsequent civil trial of persons charged and tried under this Act; and I am therefore proposing at the same time that the unnecessary words be omitted. No comparable change is needed in the Naval Discipline Act, because the relevant section, Section 129, bars a subsequent trial by a civil court for the same offence only where a person subject to that Act has been acquitted or convicted of an offence after a trial. The essential point is that under Section 129(1) the accused must have been tried. I beg to move.

Amendment moved— Page 20, line 17, leave out from beginning to ("by") in line 19 and insert ("and has had the charge dealt with summarily").—(Lord Shackleton.)


I am very grateful to the noble Lord, Lord Shackleton, for explaining his Amendments. I hope that it will meet the convenience of the Committee if we do not go wide on these Amendments, because, so long as the clause remains in. I think they are an improvement and it would be a great pity to leave them out. That does not mean to say, of course, that I am necessarily accepting the clause as a whole, but if it is the Committee's final desire that the clause should remain in, then I think it is much better that these two Amendments should be in as well. So far as the explanation of the drafting point is concerned, I quite see the force of the noble Lord's explanation, and I accept it.

On Question, Amendment agreed to.


I beg to move.

Amendment moved— Page 21, line 2, leave out from ("law") to the end of line 3.—(Lord Shackleton.)

On Question, Amendment agreed to.

On Question, Whether Clause 25, as amended, shall stand part of the Bill?

6.37 p.m.


As the noble Lord, Lord Shackleton, has intimated, on Second Reading I raised a point of principle—and, I think, very important principle—which is contained in Clause 25 of this Bill. As the noble Lord, Lord Shackleton, and, indeed, as the noble Lord, Lord Winterbottom, have said, Parliament has always been very jealous of the power of the Army. It has not been so jealous of the power of the Navy; and both Ministers have already used the analogy of the Navy to try to persuade us that the Air Force and the Army should fall into the same category. Historically, Parliament has not been jealous of the Navy because the Navy did not operate on land: it was only the Army which operated on land.

Now from the time of the Commonwealth (when, as your Lordships will remember, the Independents were led by General Cromwell and his major-generals, as they were called, who were also, naturally, Independents) Parliament, representing the civil population, has maintained a close watch over the power of the Armed Forces. This was intensified by the action of James II, who was held by Parliament at that time, both Whigs and Tories, to be maintaining far too large an Army in this country and thereby to be committing actions which were dangerous to the public welfare. This was one of the reasons why he was induced, or, at any rate, decided to abdicate.

Ever since then this hold by the civil power over the military has taken two forms. The first has been the Army Act, which, until recently, was passed annually. Many of us in Parliament remember when we used to pass the Army Act annually. The second has been the civil courts' power, which operates at the present moment and will continue to operate unless Clause 25 is passed, to try any member of the Army or the Air Force in a civilian court if he has committed an offence triable by civil law, irrespective of the fact that such an offence may have been tried by court-martial. Your Lordships will find that in the Army Act 1958 under Section 133, and in the Air Force Act 1955 under Section 133. The converse—by reason of Section 134 of those Acts—does not apply. In other words, at the present moment it is an absolute bar to trial by court-martial if a man has been tried by a civil court and has been either convicted or acquitted. It has been so for 300 years. This safeguard is subject to certain qualifications, the main one being that when the civil court decides that it is going to take cognisance of an offence which has been tried by court-martial it must, under Section 133, take into account any punishment that has been awarded by the court-martial. So far as I am aware this has raised no difficulties at all.

The main point of my putting down this Motion is to find out why it is necessary to alter something which has been in existence for very many years, which has a great historical tradition behind it, which is one of the integral parts of our constitutional law and which, so far as I am aware, during the years I have spent in the Armed Forces has never presented any difficulty at all. All soldiers and all officers know quite well that this is the situation and I have never heard anybody complain. I agree that there are, in fact, two rights here. There is the question of the civil liberties of the public vis-à-vis the military and the question of the rights and civil liberties of the man.

If it is felt by the Government that they want to change this situation, it is surely not beyond the scope of Parliamentary Counsel to draft a clause which would ensure, in any case where the civil courts were likely to try a member of the Armed Forces, that the military should not try it by court-martial. I want it to be clearly understood that I have no wish whatever for any member of the Armed Forces to be tried twice. If it is felt that there is a danger of that happening, then the offender should not be tried by court-martial. I feel that this clause embodies a very dangerous provision, and I hope that the noble Lord, Lord Shackleton, can persuade us that it is not. Neither he nor the noble Lord, Lord Winterbottom, gave any particular views on this point during the Second Reading debate, although Lord Shackleton referred to it in rather general terms. I was informed by the noble Lord, Lord Winterbottom, that this would be dealt with in Committee. I have not heard why this change is necessary. I think it is dangerous.

We have a situation in this country where more and more power is being taken almost daily, at any rate weekly, by the Executive, by the Government, by the Civil Service. There is no question about that; it occurs in Bill after Bill. Only this evening we have heard comment by the Conservative Front Bench on certain provisions of the Land Commission Bill. There are numerous Bills which are coming, and which have come, before the House in which the Executive, the Government, have taken large powers over the rights of the individual and over the civil liberties of the public at large. This country is becoming a Socialist State and noble Lords opposite are presumably believers in it; at any rate they are themselves signatories to the proposition that they are aiming at the common ownership of the means of production, distribution and exchange—in other words, they aim at a Socialist State. They are quite entitled to believe in that if they wish. At one time I believed in it myself. When I no longer believed in it I left the Labour Party. I did not quarrel. I may say that I left on the best of terms, as noble Lords opposite will admit, and I am glad to say I am on the best of terms with them now. I have not made any personal enemies. I hope they have not.

It is purely a question of principle. They believe in a Socialist State with all that that means with regard to the centralisation of power—that is the point—in the Government and the Executive; and no Socialist State can operate without it. You can look all round the world at the Socialist State and you will find it is, integrally and essentially, centralisation of power. In certain cases, those where dictatorial power is in command, the centralisation of power becomes intensified and everything comes before and is decided by one or two or half-a-dozen people. There are numbers of countries which, within the last ten or fifteen years, have fallen under dictatorship. Unfortunately, this process of dictatorship, this control by the "man on horseback", or a general, is continuing. We have not to go far across the water to see one of those cases. In South America, Africa and Asia, the "man on horseback", the dictator, whether he is a general or not, becomes very prominent indeed. I am not suggesting that any of the noble Lords or noble Ladies opposite wish to become dictators.

A NOBLE LORD: They could not ride a horse.


They may not be able to do so; but in these days the methods of dictatorship have become more mechanised; they do not need horses. The fact is that although they may not want to have these powers and to exercise them, their successors may. That is the point. There are provisions such as these in the Bill, and the provisions will remain for many years to come. I am sorry that the noble and learned Lord who sits on the Woolsack is not here. I should have reminded him that although two or three of his predecessors in office have been canonised as saints, some of his successors may not be of the same character. We may have some doubtful characters in this House or elsewhere in years to come, when present noble Lords and Ladies have passed away and received in Another Place the rewards of their efforts.

In these circumstances I feel it is dangerous to have provisions of this kind in the Bill. It means that if you had a political general operating under a dictatorial government (whether Fascist or Socialist or whatever it may be) he and his officers would no longer be subject to the civil power for anything they had done. If they did something which was of a dictatorial nature they could hold a faked court-martial; that general or those officers could be acquitted, and the civil courts would be powerless to try them. Even in the Commonwealth this did not happen. Even when Cromwell's soldiers were actually fighting against the King's soldiers in the Civil War, the magistrates still held control, and on many occasions when Cromwell's soldiers tried to requisition corn or horses they were hauled up before the civil magistrates who happened to be the King's representatives and country gentry, and had great difficulty in getting away. Cromwell found that his own troopers were put in gaol by the civil magistrates for taking horses and corn. So one can see how jealous, all through history, has been the control by the civil courts of the military. I would say that this is an important point that the Committee is being asked to make. It is not a minor one. There is a great historical background. In my view this clause is a dangerous feature which, unless the noble Lords on the Front Bench opposite can explain to the Committee's satisfaction, we should not pass.

6.50 p.m.


I congratulate the noble Lord, Lord Ogmore. He has found an opportunity to make, I will not say a very original historical speech, but none the less one which I think it was just worth hearing. I find it difficult to believe that the noble Lord meant it seriously at all, but it is always terribly difficult to know when the Liberals mean anything seriously or what particular point they are on. I would only say to the noble Lord that we have been listening to a great amount of political talk of a jolly kind, and if the noble Lord seriously thinks that the liberties of this country depend on the maintenance of this particular clause, as opposed to the effective Governmental and Parliamentary control which exists through the annual authorisation to renew or not to renew the powers of the Army, I think he must have been missing quite a lot of the earlier discussion in relation to control over the Armed Forces.

This is a matter which has been considered in the past and there is here a conflict between two principles. The noble Lord, Lord Ogmore, based his attack on the Bill on this particular clause, largely I think on the grounds that future occupants of the Government Front Bench might not be of such a benign kind as the present ones. The noble Lord even suggested, or a noble Lord suggested, that we might, unlike Cromwell's soldiers, be unable to ride. I would remind the noble Lord that my noble friend was an officer in the "Blues", and I was once a serjeant in the most inefficient unit in the British Army, the Oxford University Cavalry Squadron, so let me rebut that part of the charge, and point out—


May I point out that I made no such charge. I said that dictators were now mechanised and that the position no longer applied.


I acquit the noble Lord of that charge. This is an important point. I find it very difficult to credit that the reason for discrimination against the Army—and the R.A.F. have to follow suit—is distrust going back to Cromwell an days. As a former member of the R.A.F., I think it a little hard that they should have inherited the same treatment. Nor could one possibly suggest that in this country the operation of court-martial procedures and military law is something which is controlled by the Government. The implication of the noble Lord is that one day a Government may come into power which would subvert and distort this form of justice. But, of course, they would be busy distorting other forms of justice, and I suggest, in view of the other principle, that we ought not to worry too much about the argument of the noble Lord, Lord Ogmore.

Perhaps I would have spoken more kindly if the noble Lord had not gone quite so widely; he even found it necessary to explain why he resigned from the Labour Party, about which, I may add, some of us have other views. I would have thanked him for raising an important point of principle, and I should like to deal with this.

It is a principle of Common Law that a person may not be put in jeopardy twice for the same offence, and the question of double jeopardy in relation to the Navy was exhaustively considered by the Select Committee on the Naval Discipline Act in 1957 and the outcome is set out in Section 129 of the Naval Discipline Act 1957, which provides that a civil court shall be debarred from trying a person for the same offence if he has been acquitted or convicted after a trial under that Act. I hope that your Lordships will agree that the reason for this discrimination against the Army and the Royal Air Force is no longer valid and that this difference in the treatment between the three Services should be ended and that the law governing them should be brought into line with the principle that no man should be tried twice for the same offence. Only if there were some really overriding reason of public interest would it seem right to me to continue the present situation, and it is clear that there are no such reasons; and I say this with absolute conviction within the view that I take of Parliament and politics in this country.

I would add—and this may be of some comfort to the noble Lord, Lord Ogmore—that the commanding officers in all three Services are instructed that the decision whether a Serviceman accused of an offence against civil law should be tried by a Service authority or a civil court is one for the chief officer of police in England and Wales and for the procurator fiscal in Scotland. Commanding officers are also instructed to report to the police at the earliest possible moment any alleged offence in the category of a civil offence which would be in question.

I should like to repeat the assurance given by my right honourable friend the Attorney General on this clause when it was considered in another place: not only was it justified but it would have no damaging consequences to the civil arm of the law. The Attorney General gave an assurance that the clause does not affect the right of a citizen to bring civil proceedings against a Serviceman in pursuit of compensation for any damage he may have suffered. In these circumstances, and now that my own speech has had a mollifying effect on me and I hope upon your Lordships, in a reverse direction to the speech of the noble Lord, Lord Ogmore, I hope that the Committee will accept that this principle is a sound one and consistent with the civil liberties of this country; and I hope, therefore, that we shall not tamper further with the clause.


I have derived a certain amount of satisfaction from the speech of the noble Lord, Lord Shackleton. I am always pleased to hear the noble Lord. Actually I was one of his Sponsors in this House and I look upon him with great affection for that reason and many others. As he said, here are two liberties to be dealt with, the liberty of the soldier, airman or sailor, and the civil liberty of the public as a whole. I do not want to repeat what I have said. If it be decided to leave the situation as it is now, and has been for some time, I do not think there would be any infraction of the liberty of the soldier, sailor or airman. A clause could be drafted by the Parliamentary draftsmen to get round that in the way I suggested earlier.

Regarding the civil liberties of the public, one might imagine what might be the course of events in the future. I have absolved noble Lords and the noble Lady opposite from any attempt whatever, or any desire or wish, of that dictatorial kind and I cannot say more than that. I cannot understand why the noble Lord, Lord Shackleton, was so cross because I said that noble Lords opposite believed in the Socialist State. Surely they do. That is an integral part of their faith. They believe in Socialism, and Socialism means collectivism and control by the State. All I said was that if some power of the future, whether Socialist, Fascist or anything else, wished to subvert the law, this is the sort of clause by which they could do it.

I am not satisfied when the noble Lord says this could never happen here and everyone would behave like a gentleman. Those are famous last words. Social democrats all over the world have said them. It has been said in Italy, in Czechoslovakia, in Germany and practically everywhere else. Those who said it were perfectly good people; many of us knew them. They were reliable and trustworthy people who believed just as strongly in their good faith as the noble Lord, Lord Shackleton, does and with equal cause. The fact is that when the dictators came in this was the sort of clause and power they used. As I say, these are famous last words; we have heard them so many times. There was a perfectly good Government in Spain, but what happened? When Franco came in how many of their precepts were regarded? He used Parliament and the powers provided by Social Democrats. The same thing happened in other parts of the world, and it is happening to-day. I do not want to pursue the matter any further. I have ventilated it, and if the Committee are satisfied with the explanation of the noble Lord, Lord Shackleton, so be it.

Clause 25, as amended, agreed to.

Remaining clauses and Schedules agreed to.

House resumed: Bill reported with Amendments.

[The Sitting was suspended at two minutes past seven o'clock and resumed at eight o'clock.]