HL Deb 08 December 1970 vol 313 cc831-74

5.12 p.m.


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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD JESSEL in the Chair.]

Clauses 1 to 20 agreed to.

Clause 21 [Low flying, and annoyance by flying]:

LORD BALFOUR OF INCHRYE moved Amendment No. 1: Page 18, line 13, at end insert ("but provided also that the pilot has warned the person in command that the likely result of the execution of an order will be to commit an offence.")

The noble Lord said: I beg to move the Amendment standing in my name on the Order Paper. In Clause 21 the Government propose to amend the Army Act 1955 by the insertion of the words set out in the Bill. I raise this matter because I think it is an important matter of principle. The Government are now placing a new responsibility upon the commander of an aircraft and also, I think, a new responsibility on the pilot of an aircraft. The position hitherto—and it is one which I expect your Lordships have accepted as being generally understood—has been that the pilot has been considered as the commander of the aircraft. Now the Government are proposing that a second party, another officer, can be in command of the aircraft and that the pilot shall be subordinate, but that the commander shall be responsible for his pilot's actions under certain circumstances.

The commanding officer could be a member of the engineering branch of the Royal Air Force; he could be a navigator; he could be an experienced pilot. I rather think the Government may say to me that the captain will always be a man with a considerable knowledge of flying. That may be so; but it may not. Or he may have a considerable knowledge of flying but not from the angle of pilotage. I think it is reasonable to assume that the pilot has a greater technical knowledge than the commanding officer on any particular flight, and a better technical knowledge of the requirements of pilotage on that particular expedition than the second party who would be in command.

It may be that the commander gives an order which involves low flying or flying so as to cause a nuisance, which are the two crimes dealt with in this particular clause. Or it may be that the pilot is so fearful of his commander that he does not warn the commander of the result of the execution of the order that the commander has given. Again, it may be that the pilot is at loggerheads with his commanding officer and is willing to execute the order without reporting that the likely result will be the commission of an offence. I grant to the noble Lord at once that these cases are unlikely, but in a Statute it is not good enough to argue that something is unlikely and to legislate on a chance that something will not happen. It is better to try to legislate against the possibility of such a happening.

The Government may argue that under my proposal there will be no time for the pilot to report to the commanding officer the effect of some order which the commanding officer has given, but I submit that to put an aircraft in a position of committing an offence needs time on the part of the pilot, and surely he would have time to point out to his commanding officer the likely result of the order which he had received. The strongest stand which I am afraid my noble friend will make against this Amendment will be to quote to me the accepted principle of discipline in the Services: that a commander is responsible for his orders. But we are dealing with a new era of technicalities, and we should not, I submit, judge the new necessarily by the customs, practices and traditions of the old. I am not suggesting a statutory obligation to question the order, but that the pilot should have, in effect, to give a warning about a situation which he knows may come about through the order of his commanding officer.

In the Royal Navy, about which the noble Lord knows so much more than I do (he had a distinguished naval career, whereas mine was very undistinguished), surely the navigator does not question the captain, but warns the captain that if he persists in his order the ship will go aground. But in the case of the Navy the captain must be more experienced than the navigating officer, whereas in the Royal Air Force, under this provision, this need not necessarily be so.

The last argument which I think the Minister may bring forward is that disciplinary action would normally take place only after a court of inquiry. My reply to that is, again, that "normally" is not enough. It does not mean that disciplinary action could not be taken without a court of inquiry; and the warning obligation on the part of the pilot to the commanding officer, who might have inadvertently given the order that caused an offence to be committed, would in itself reveal to any board of inquiry that responsibility for a subsequent offence did not rest with the commanding officer.


Would my noble friend mind giving way? I should be glad if he would explain to me exactly what he wants this Amendment to do. So far as I can see, its only effect is to exonerate the man who has ordered the aircraft to fly in contravention of the limits from all responsiblity and to make the pilot always responsible unless he can establish—and he would be a bold pilot who did do so—that he has said to the commanding officer, "You have ordered me to break the law". If that be the intention, it is casting a heavy responsibility on the pilot.


It does put a heavy responsibility on the pilot. But the point of the Amendment is that a man with lesser knowledge may be in command of the aircraft and may give an order—inadvertently, if you like—the execution of which will mean that an offence is committed—low flying or nuisance flying. If the pilot receives such a order and in his knowledge of piloting considers that it would cause a crime to be committed, it is not unreasonable that he should have to warn the commanding officer. When the commanding officer has been warned, presumably either he will countermand his order or will be absolved from responsibility. That is my purpose. This is a new situation, that the second person in command of the aircraft is someone other than the pilot; and I think it is a situation which needs to be looked at, otherwise we may leave a position where a second individual is made responsible for something for which he ought not to be made responsible and about which he should be warned by the pilot. I beg to move.


I rise to make the shortest speech of my life. I think that the commander of an aircraft should always be the pilot, and nobody else.


Like the noble Lord, Lord Balfour of Inchrye, when I first read this clause I did not quite understand it. I am used to the situation where the actual captain of the aircraft is the pilot in command of the aircraft. But asking myself what is the new situation, I came to the conclusion that it must be the result of the upgrading of the role of navigation in modern highly-sophisticated aircraft. Thinking of, for instance, the Nimrod, there are times during the operational role of this aircraft when the navigator and not the pilot is in command. He is not seated in the front, but is in his little private room, with his various sensors around him. This situation arises as the sophistication of aircraft increases and the pilot becomes more and more an airframe driver and the navigator plays a larger role in operating the aircraft.

I assume—and I hope that the Secretary of State will tell us if I am correct—that it is the fact that the navigator is rising in the scale of command within the R.A.F. that makes a situation like this, and a clause like this, necessary. If this is so, I think we must realise that the pilot may not know if the navigator has made a mistake. He is not sitting in front of the television screens watching the sensors; he is responding to instructions from a command centre. For this reason it is unreasonable to lay down categorically that the pilot must say to the operating commander, "You are making a mistake." In all probability he would not realise that a mistake has been made.


My noble friend and I have had some correspondence and talk about this subject, and I wrote him a letter. He has been good enough to rehearse some of the arguments I put in that letter in order to rebut my answer before I make it; but I make no complaint about that, as I make no complaint about the length of Lord Boothby's speech. I think it was wishful thinking; but nevertheless it was an agreeable speech. The noble Lord, Lord Winter-bottom, is of course quite right; indeed, my noble friend is quite right: the provisions in the present Act ensure that the offence of low flying, or causing a nuisance by flying, is the responsibility of the pilot. That is so because it has always been assumed hitherto, as the noble Lord, Lord Boothby, assumes, that the captain of the aircraft is invariably the pilot. But this is not so any longer in the R.A.F. Particularly in the case of aircraft employed on specialist duties, it may be that the commander is not the pilot. It seemed to the Government, and it seems to me now, that in these circumstances it really is not right that the onus for offences against these clauses of the Bill should fall on the pilot if he is acting under specific Orders of the captain. This is the purpose of Clause 21.

I think that the most serious objection to my noble friend's Amendment is that it has always been an accepted principle of Service discipline that the commander is responsible for his orders; and it would certainly be a very serious erosion of this principle to give a subordinate, in this case the pilot, a statutory obligation (for it would in effect be a statutory obligation) to question an order. There would be a danger, I think, if we did this in this particular case. In no other case in the whole of this Bill, or in any of the other Service Acts—the Army Act, the Air Force Act or the Naval Discipline Act—is there any provision of this kind.

My noble friend is wrong when he talks about the relationship between the navigator and the captain of a ship. The Naval Discipline Act does not lay down that a navigator shall warn the captain. I think this would be a very serious erosion of the principle that I have just outlined. In spite of the fact that my noble friend is not convinced by some of the arguments which I wrote him about, I still think that in certain cases there would be no time for the pilot to question the commander. Any of us who have recently been on the flight deck on some of the Royal Air Force aircraft will know this. I always think it miraculous how they find time to do anything up there. The margin between safety and danger is very slight, and it may well be that there is not time for the pilot to carry out this obligation.

In spite of what my noble friend has said, it is true that it would be unusual for a commander to be a person without considerable knowledge of flying. It is almost inconceivable in the R.A.F., in the circumstances in which we are discussing, that he should not be; in most cases, I imagine, he would have been a pilot himself. In all the circumstances I hope that my noble friend will not press this Amendment and will withdraw it, because I do not believe that it is right in principle to put such a provision into the Bill. Indeed, I believe that it would have an effect which would be contrary, in a sense, to that which he wants; because, in spite of my noble friend Lord Boothby, I do not believe that if the pilot is not the commander, he should bear the onus of this. It should be the commander who has the responsibility for giving his orders.


I do not want to prolong the argument. I could counter what my noble friend has said; but obviously this is not a matter about which we want to go to the stake. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Clauses 22 to 28 agreed to.

Clause 29 [Scandalous conduct by officers]:

5.30 p.m.

LORD BEAUMONT OF WHITLEY moved Amendment No. 2: Leave out Clause 29 and insert the following new clause:

Repeal of ss. 64 and 66 of Army Act 1955, ss. 64 and 66 of Air Force Act 1955 and ss. 36 and 37 of Naval Discipline Act 1957. 1955 c. 18. 1955 19. 1957 c. 53. 29. Sections 64 and 66 of the Army Act 1955, sections 64 and 66 of the Air Force Act 1955 and sections 36 and 37 of the Naval Discipline Act 1957 are hereby repealed.

The noble Lord said: The purpose of this Amendment is to do away with whole categories of offences of scandalous conduct unbecoming the character of an officer and a gentleman as it exists in the Army and Air Force Acts and in the same category in the Naval Discipline Act, although "gentleman" for some reason is not included there. It is also designed to do away with the concepts of cruelty, scandalous and fraudulent conduct and disgraceful conduct of an indecent kind in the Naval Discipline Act; disgraceful conduct of a cruel, indecent or unnatural kind in the Army and Air Force Acts, and of course to do away with the Amendments in this Bill which are being put in their place.

The three Amendments standing in my name are designed to explore the area between civil rights and military necessity, and I should like to make quite clear at the outset that they are probing Amendments; I do not intend to press any of them. The most succinct expression of the principle which governs this area was stated in a context rather far removed from to-day's Bill, in the Second Report of the House of Commons Select Committee on Parliamentary Elections, 1963. There it said that, members of the Armed Forces should, so far as is consistent with the efficiency of the Services, enjoy the normal rights of a citizen. I hope that this afternoon we shall be able to talk with respect to these Amendments in the terms of that statement.

I hope that your Lordships will not feel that I am taking up the time of the Committee unnecessarily on these matters, because it seems to me that we should not unnecessarily take away any civil rights from a large section of our community. It also seems to me extremely important that we should do our best to recognise the extreme importance of the work and the service which we obtain from the Armed Services by giving them as far as possible the rights of a citizen. Members of the Armed Services, possibly more than a great many of us, richly deserve these rights.

The rights of the ordinary citizen in this country demand that the laws of the country should state clearly what is, and what is not, an offence for which he may be punished in any way. Uncertainty in the law is considered highly reprehensible by judges, legislators and by the public. Therefore I think we are bound to seek for as much certainty in Service law as is possible; unless it can be shown that some uncertainty is absolutely necessary for the efficiency of the Services. Uncertainty there undoubtedly is in these sections of the Army and Air Force Acts and in the Naval Discipline Act, and indeed in the Bill which is before us today. We are talking about blanket offences, and they are meant to be blanket offences—like "conduct prejudicial to good order and discipline". I believe we should question the existence of such blanket offences.

It seems to me that there are three kinds of action for which people in the Services can rightly be punished, or dealt with under the law. The first includes action which would be an offence under the civil law and about which I imagine there could be no argument. The second includes such action as would not be an offence in civilian life, but, because of the nature and the aims of Service life, may rightly become a crime if committed by Servicemen. This would include falling asleep on guard, and cowardice in the face of the enemy. About them, too, it seems to me, there should be little argument. The third category includes actions which are disruptive of morale without being offences against the law, except within the ambit of these Acts. I agree that in respect of these it is difficult to draw a line. Obviously, the Services are entitled to take cognisance of many if not of all of these actions.

In civilian life a firm may sack a man who behaves in such a way as to cause doubts among the customers, or his employers, as to his probity. It would be quite reasonable that a bank manager should be sacked by a bank if he were caught cheating at cards. Equally, I admit that because the Armed Forces are a public body, it is right that this kind of offence should be included in the law as such. But I query whether the blanket clauses I have named which, on their face value, are capable of almost infinite elasticity and are couched in verbiage which is extraordinarily imprecise, is the right method to employ in dealing with these matters.

The whole question of what is natural or unnatural conduct (particularly in the terms in which that statement is often used in this context) raises enormous problems which are certainly not settled by the law as it stands. Equally, I feel that where there is a clause, such as these are, whose only justification is that it deals with matters outside the first two categories I mentioned, civil crime and military crime (even though it is often used to deal with matters coming inside those categories as these clauses often are) it is wrong that one of the penalties should be dismissal from the Service with disgrace. This has a penal effect as opposed to the equivalent effect of sacking a bank manager who, in his private life, has been caught cheating at cards. In his case it means just getting rid of a person without applying a penal sanction.

During the Second Reading debate I asked for some information about what offences have been dealt with under these sections in the last few years. I should like to thank the noble Lord, Lord Carrington, and his Department for the immense help they have given me on this and other matters. Over 15 years there have been very few cases brought under these sections. Of the 22 of which I have details, I reckon that nine are clearly civilian crimes and two are clearly military crimes. Almost all the rest are cases of bouncing cheques, and in most cases it is not possible to ascertain now whether or not there was any fraudulent intent.

The remaining case, which seems to me the only case which is fairly and squarely caught by these clauses, and not by any other, is an extraordinary one. It concerns an Army officer who offered three junior ranks 100 dollars to tie him up and to shave off his moustache. I have some vicarious experience in various ways of eccentric behaviour, but I must confess that that is a totally new one to me. I accept that no specific military-drafted law could possibly cover the point. Equally, I wonder whether it should be covered. I certainly wonder whether we should expand the law with these uncertain blanket phrases which, I submit, are basically contrary to natural justice, in order to catch an occasional very odd offence of this kind.

I am convinced, let me make it quite clear, particularly from the records that I have been given from the Service Departments, that these laws and these sections are administered and put into practice in a responsible, humane and just way. But I do not think that they have much place in the Statute Law of this country. If there are any lawyers in the Committee I should be interested to know whether they agree with me. I should also be interested to know whether the Government have any plans—maybe not at this time but in a later Army, Navy or Air Force Act—to try to get away from the blanket offences and to move more towards making the law more sure and more specific; and with the aim of securing some answers on these matters I beg to move the Amendment.


If I may make a brief interjection, I think that the noble Lord, Lord Beaumont of Whitley, must not forget the environment in which the Armed Services operate. Many Service units and formations are living in closed communities on foreign soil, and therefore the codes of conduct demanded in those military communities must be rather more closely supervised and guarded than in a civilian community. I think it is simply because of the differing nature of military communities that this legislation is necessary. The noble Lord has said that the actual powers which exist are seldom used. Where there has been scandalous conduct, in most cases the officer in question is removed by administrative means. He leaves without disgrace; he retains, for instance, his flying log book and his wings, so that he can continue to earn his livelihood with the skills that he has learnt. He may receive severance pay. This is the way in which it generally works. I think that these powers should be retained for the exceptional cases which arise from time to time.

5.40 p.m.


I think the Committee ought to be grateful to the noble Lord, Lord Beaumont of Whitley, for raising this problem. Perhaps I may put the other side of the case. I think that there are two sides to this and I should like to put the side which to me is most convincing. Clauses 2 to 43 of the Bill are a result of a very thorough and searching review which had the object of rationalising the two existing codes in order to secure the advantages for the Services of a unified scheme of offences and punishments. I think that, by any standards, for the first time in the history of our Forces to get a common code is an achievement of quite considerable significance. I do not say this, of course, in order to argue that it is not possible to improve what has been done in this Bill. I am sure that it will be improved during its passage through this House and no doubt in another place, but I think that we ought to take great care not to remove one of the offence-making powers which has been a feature of our Service Acts for a long time.

The noble Lord has argued that, with one exception, in the cases I sent to him, the persons concerned could have been charged under other parts of the three Acts. May I put this to him. It seems to me that every profession requires a system of known and accepted standards that all its members accept as binding on them, whether or not what is declared unacceptable to them is unlawful for other people, and the Fighting Services are in no different position. They require a high and exact standard of personal behaviour, and those who become officers in the Services know that they are accepting the obligation to follow that standard. Naturally there are some who do not meet it and cannot follow it and some are allowed to leave without any great fuss, but cases do arise, not at all frequently, when what has happened is too serious to merit quiet disposal but calls instead for a more formal process, and this is where "conduct unbecoming an officer" comes into play. It is to deal with the case of an officer who has not necessarily committed a criminal offence, who may not even have conducted himself in a way prejudicial to good order and discipline but who nevertheless has behaved in such a way that he is not fitted to remain an officer.

This leads me to ask the House to examine this matter from the point of view of how the Services would have to deal with the kind of case I have described, if the noble Lord's Amendment were accepted. If the Services did not have the ability of making charges under this head, they would inevitably be forced to make more use of their other power of discharging an officer administratively. Maybe in some cases it would be advantageous to the officer simply quietly to leave the Service with no publicity, but it could be argued just as cogently that he should be given an opportunity of a fair and open trial rather than have his career terminated by administrative action.

There have not been a very large number of these cases in recent years. The list which I sent to the noble Lord shows only four in the Royal Navy since 1955, 15 in the Army over the same period and three in the R.A.F. since 1965. I think that the noble Lord will agree that virtually all these cases—in fact he has said so—were for behaviour which could have been the subject of another criminal charge. A large number of the Army charges were in respect of cheque offences, but it should be borne in mind that they were usually coupled with some additional and often more serious charge. Secondly, it certainly is not customary for the Army to charge an officer with cheque offences unless he has been doing it for some time or because there is clear evidence of some criminal or fraudulent intention. It is right, I think, that we in Parliament should provide a code of military discipline that the Services themselves feel is reasonable and comprehensive and, of course, fair. There is also—though perhaps it is not very fashionable to say so—something of great value in the continuation of military tradition. This is an offence which has been in the Act for many years and I know of no evidence—and the noble Lord was good enough to say neither did he—that the Services had ever misused the power entrusted to them, and until that is demonstrated I really do not think that it would be right to strike out this clause from the Bill.

But the noble Lord's Amendment also seeks to abolish the offence of disgraceful conduct. This is a charge which can be brought against any member of the Services—officers, ratings and other ranks—and the Services find that they have to make a good deal of use of it. Twenty Navy personnel were convicted of this offence between 1960 and 1970, 668 soldiers were convicted over the same period and 169 R.A.F. personnel as from 1965. When Parliament enacted the Sexual Offences Act in 1967 it was their clear intention, whatever relaxations that Statute brought as regard the population at large, that there should be no lessening of the prohibition on homosexual offences within the Armed Forces and in the Merchant Navy. Parliament recognised that special considerations applied so far as these Services were concerned. Parliament therefore provided in Section 1(5) of the Sexual Offences Act that: Subsection (1) of this section shall not prevent an act from being an offence (other than a civil offence) under any provision of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957. If we accepted the noble Lord's Amendment and gave up the offence of disgraceful conduct, we should be unable to maintain this position. Men who commit acts of this kind can be prosecuted under the section which the noble Lord now wishes to delete from this Bill. The Services need this section, and if they did not have it they would find it impossible to deal with some offences in this area. I venture to suggest to your Lordships that were we to remove that section now, a serious situation would arise, one which would have a serious effect on the efficiency of the Forces. For the reasons I have given the House, I think it would be unwise to support the noble Lord's Amendment, and I would ask him whether he would not withdraw it.


May I say a word on this subject? In the years of the war I attended many more courts-martial as Attorney General than those courts-martial to which the noble Lord, Lord Beaumont of Whitley, referred. I attended Air Force and Army courts-martial and then there were two distinct codes, which made the work tiresome. When I sat on the Committee which considered the Service Acts, I found that there were wide discrepancies between the Naval Discipline Act and the Army and Air Force Acts. I should like to say—this is my first opportunity of saying it—that I welcome very much the purpose of this Bill.

Turning to the noble Lord's Amendment, I do not think that the noble Lord is right in saying that these offences are uncertain in law or contrary to natural justice. I do not think anything of the sort. It is always a question of fact, whether an officer has been guilty of scandalous conduct unbecoming an officer and (as it used to be in the Army Act) a gentleman. There is no difficulty with regard to that. It is not always the case that an officer who has been bouncing "dud" cheques can be charged with an offence under ordinary law. I remember that in war-time days there was a bank which said it would cash a cheque for any officer up to £5. One court-martial which I attended had to try a field officer who had spent a whole day going round the branches of the bank in London in a taxicab, cashing cheques, thereby obtaining a sort of compulsory overdraft. Whether he could have been convicted of a criminal offence I think is rather doubtful. It is necessary, in my experience, that there should be an offence of that character, and I think it operates without injustice.

When one comes to the offences of a disgraceful nature, or as it is now going to be, disgraceful conduct of a cruel indecent or unnatural kind", I am sure it is essential in the interests of discipline that that offence should be retained. The noble Lord gave as one of his instances a case which he said he did not think could form the substance of a criminal charge. I think it would be deplorable in the interests of the Services if nothing could be done to show that conduct by an officer of the kind that the noble Lord related was not disgraceful conduct, warranting court-martial and his dismissal from the Service.

5.51 p.m.


I, too, welcome the consistency which these proposals bring; indeed, one of the great arguments in favour of this Bill is that it does bring more or less into line various provisions of the different Service Acts. I also very much share the view of the noble Lord, Lord Carrington, that the noble Lord, Lord Beaumont of Whitley, has raised a matter of real importance, and one on which many of us have considerable anxieties. I agree with my noble friend Lord Winterbottom that it is necessary in the Services to have provisions of this kind. But I think it does bother one when court-martial procedures are used in particular cases which, on the whole, the civilian outlook having moved on, would not normally, whether or not an offence has been committed, find their way into court. On the other hand, there is the difficulty to which the noble Lord, Lord Carrington, referred when he argued: is it not better for these matters to be dealt with by court-martial rather than by administrative action? This really is a dilemma, because a large number of cases are in effect dealt with by administrative action when, conceivably, court-martial proceedings could be taken.

There is an inevitable tendency in the Services for them to seek to set higher standards of moral behaviour than prevail generally in the community. Noble Lords may applaud this. On the other hand, there are important questions of equity involved. I used to be very bothered with the number of cases that came to me, as Minister, where officers had committed adultery and it was pointed out that there was liable to be a divorce which would bring discredit on the Service. This seemed to me to be a dangerous argument, and one, furthermore, that somehow showed members of the Services were expected to have much higher moral standards than the community at large. They may be entitled to expect this, but in my view it is not reasonable to expect it. I had so many of these cases, and I did not always agree with the advice that I had. I got tired of hearing of cases of scandalous adultery, and suggested that in effect they should be known by the letters "R.H.A." (my noble friend can tell me whether this still stands), meaning "random heterosexual activity", which I thought was a more neutral phrase, without the connotation that produced a reflex action in judgment.

I do not seek to pass any judgment to alter people's moral codes; I only say that we are in a difficult area. I would completely accept what the noble Lord said, that when we passed the Sexual Offences Act it was always understood that different conditions would prevail in the Services—and indeed, I doubt whether that Bill would have passed if undertakings of this kind had not been given. None the less, there is I suggest a danger for the Services to get too far out of line with what is generally regarded as appropriate for criminal military action of that kind. While I have no solution to what the noble Lord, Lord Beaumont, has said, and I do not disagree with what the noble Lord, Lord Carrington, has said, I think this is a matter which should be borne in mind and considered. I must say that I am still worried about the sort of administrative action that is taken, and to that extent, where cases are suitable for court-martial procedure, I prefer them to go to court-martial.


I am grateful for noble Lords' various comments on my Amendment, and particularly for the words of the noble Lord, Lord Shackleton. I entirely accept what the noble Lord, Lord Carrington, said about the question of disgraceful conduct. I shall have a word to say about the scope of the Sexual Offences Act when we come to consider Clause 45. But I entirely accept what he says about the necessity for keeping this in at the moment at this particular level and in this particular way.

I am a little reassured by the noble and learned Viscount, Lord Dilhorne, when he tells me, with all his legal expertise, that this is not uncertain and it is not against natural law.


Natural justice.


I beg the noble Viscount's pardon—natural justice. I entirely accept this, though I am a little shaken by his feeling that the offence I mentioned was really worthy of dismissal from the Service.


If the noble Lord will allow me to intervene again, I did not express any opinion on the sentence passed, but merely upon the conviction. I am not competent, without knowing the full facts, to express any view on the sentence passed; but as to the conviction, that is a different matter.


I beg the noble Viscount's pardon if I misrepresented him. I still look forward to reading Hansard with interest tomorrow. On the general question of conduct unbecoming to an officer, I accept a great deal of what has been said. But I think that within it there would be room for looking again at one small area of this Amendment, and that is the whole question of being dismissed the Service with disgrace. I wonder whether, for these blanket offences, people should be court-martialled and dismissed with disgrace: because it is almost certain in cases of this kind that they could be handled by court-martial for other offences, as I think the noble Lord, Lord Shackleton, said. I should like to have a look at this point again, possibly with the noble Lord, Lord Carrington, before Report stage, but certainly on Report stage. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 29 agreed to.

Clauses 30 to 33 agreed to.

Clause 34 [Civil Offences]:

On Question, Whether Clause 34 shall stand part of the Bill?


I did not give the Secretary of State warning that I proposed to raise a point on this clause, because I am not going to ask a question, and therefore I do not expect an answer. But I wish to draw attention to an anomaly, is it seems to me, in the clause. In the explanation it says that the clause provides that a person found guilty by court-martial of a civil offence"— and so on— may not be awarded a punishment more severe than any which could have been imposed by a civil court for the same offence. The point to which I wish to draw the noble Lord's attention is that 72 or 96 days at Colchester is a considerably more severe punishment than the same thing at Wormwood Scrubs. At Portsmouth it is still more severe. Therefore, this clause does not do what it sets out to do. I am not going to move an Amendment, but I felt I could not let this large piece of legislation go through without raising this point, which I believe to be very important, and one which I think the Minister should look at carefully.


Answering "off the cuff"—and I may be wrong—it seems to me that it is a difficult argument to sustain, because the same is perfectly true in civilian life. A sentence at Dartmoor is infinitely more disagreeable than one in an open prison.

Clause 34 agreed to.

Clauses 35 to 43 agreed to.

LORD SHACKLETON moved Amendment No. 3: After Clause 43, insert the following new clause:

Appeal against sentence by civilians

".The following section shall be inserted after section 8 of the Courts-Martial (Appeals) Act 1968:— 8A.—(1) A civilian who is convicted and sentenced by a court-martial may with the leave of the Appeal Court appeal to that Court against sentence. (2) The Appeal Court shall in relation to an appeal under this section have the same powers as are conferred by section 11(3) of the Criminal Appeal Act 1968 on the Court of Appeal in relation to an appeal against sentence under that Act. (3) In this section "civilian" means a person who is made subject to military law, air-force law or the Naval Discipline Act, by section 209 of the Army Act 1955 or the corresponding provisions of their Force Act 1955 or the Naval Discipline Act 1957".

The noble Lord said: I beg to move Amendment No. 3. Perhaps it would be convenient if, in some degree, I referred to Amendment No. 4, which is a second and, in my view, a less desirable "runner" in seeking to achieve what I have in mind. It may surprise some of your Lordships to know that it is possible for civilians to be tried and convicted, acquitted or sentenced by courts-martial. Although other noble Lords will be more expert on the law in this matter than I, this arises under Section 209 of the Army Act 1955 and the corresponding provisions for the other Services which provide that certain civilians, who are described in Section 209 and in Schedule V as, "Accompanying any part of the regular Forces here or overseas" are subject to military law. I in no way wish to criticise this provision which in my view—and a consistent view which other noble Lords will have—is generally in the interests of a civilian in countries overseas. Granting that, it is none the less necessary to consider whether it is in every case in the interests of the individual.

At this point it is necessary to bear in mind that the Courts-Martial (Appeals) Act, which is consolidated in the 1968 Act, makes provision and makes possible for someone convicted by courts-martial to appeal against conviction. This provision for courts-martial appeals is still a comparatively recent provision. I think it was brought in some time in 1955. However, there is no appeal against sentence. I would not quarrel with the general principle; it is for the Services to judge the seriousness of a particular offence and, by the procedures which they have, to inflict whatever punishment or penalty they think fit. As is so often the case, one finds awkward disadvantages in certain rather exceptional circumstances. I have been led to put down this Amendment by a case I had to deal with as Air Force Minister. Although I do not wish to reveal the consideration that we gave to the matter at the Air Force Board, it caused me such anxiety at the time—although I believe that we arrived at the right decision—that ever since I have felt that it was desirable to provide in the case of a civilian that there could be an appeal not merely against conviction, but also against sentence.

The case was the following. A young wife, unentitled in those days (which meant that she was too young and her husband was too young to receive marriage allowances), living under difficult circumstances in a foreign country, was convicted, I think the phrase was, of inflicting grievous bodily harm, or words to that effect, on her infant. She was convicted under the Children and Young Persons Act, it being laid down under Section 71 of both the Army and the Air Force Acts that: Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this section. We are talking about a civilian, and the matter is concerned basically with a civilian type of offence. Because the defendant was a woman, the composition of the courts-martial had to include a number of W.A.A.F. officers. This is perfectly proper in regard to the W.A.A.F. officers, but whether unmarried W.A.A.F officers are particularly well qualified to consider the circumstances of a young mother, under heavy stress, is another matter. Also, there was some evidence—although the court did not accept it, and it is not my intention to re-try this case—of compassionate circumstances. In due course the woman was convicted and sentenced to one year's imprisonment. She petitioned against conviction and sentence.

In my view, and in the view of the Air Force Board, there was no doubt that she had been rightly convicted. Our difficulty arose on the type of sentence. On this matter a Service Board, whether it be the Defence Council or one of the Service Boards, is at a considerable disadvantage in judging what the appropriate sentence is. It will be argued that they can get advice, but it is not so easy because in those circumstances the Board sits as a court of appeal. I understand that it is not in a position to call for evidence, witnesses, or whatever one would do, or to have any advocates present. Advice is given by the Judge Advocate General. Noble Lords who have had experience will know that it is not unknown for the most high-minded Service officers to consider that the advice given by their legal confrères is not very forceful. There were a number of aspects that worried me deeply. I should like to tell the whole story, but it would be improper for me to do so. In the end, the Air Force Board reduced the sentence to a level with which I was certainly satisfied.

It is worth bearing in mind that in these circumstances the civilian could not have been put on probation, which is the most likely punishment in a case of this kind, and where (and I want to stress this point so that there is no misunderstanding) there was no suggestion of any kind of sustained, intentional or premeditated cruelty. What bothered me was that if we had taken a certain decision—and there were those who were inclined to argue that a year was the right punishment, contrary to the evidence which I personally, and strictly informally, collected from those who were in a position to advise me—we might have let that go and there was no appeal to a civilian body. I should feel that in this case the civilian, instead of being given advantage by being court-martialled, was severely at a disadvantage. I think it would be in the general interests of the Services if, in the case of civilians—and it may well be, although I am not asking for this to-day, that this will in due course apply to other offences, not committed by civilians—there were some right of formal appeal.

The Amendment I have put down is drafted with the usual admirable help one is sometimes able to find around the House of Lords. It sets out very clearly what I seek, but I should not in the least be surprised if the noble Lord, Lord Carrington, suggests that this particular Amendment will not do as it stands. I might at this point say that I have put down a second Amendment to make it discretionary to refer such matters to the Courts-Martial Appeals Court, but I should infinitely prefer my first Amendment because it is much simpler; and I hope that the noble Lord will feel inclined to think that I have made out a case. Such matters very rarely happen. I shall be interested in particular to hear what the noble and learned Viscount, Lord Dilhorne, who has had great experience in these matters, thinks of this question and the degree of differentiation that arises between civilians under military law and civilians under civil law. I beg to move.


I think the noble Lord, Lord Shackleton, has put his finger on a point that requires serious attention. It is right, in relation to Service personnel, that if there is an appeal against conviction it should go to the Courts-Martial Appeals Court, and that sentence is a matter to be considered and finally decided by the Service authorities. I should not wish to interfere with that at all; that is the right division. I should not like to see responsibility for deciding as to the right punishment to be imposed on someone convicted of an offence who is in the Services being transferred to the civil courts at all.

However, when one comes to the question of civilians who are tried by courts-martial, I agree with the noble Lord that it is often in their interests that they should be, rather than be tried by the local courts of the territories abroad in which they are, with the possibility of suffering punishment of those courts. It is obviously desirable that that power should be retained. Having said that—and I do not wish to compare a court-martial with a trial before a jury which the accused person might otherwise have had if tried in this country—the effect of having trial by court-martial abroad means a different system at that stage. But what I cannot see is why thereafter the process of appeal should not be precisely similar to that which would happen if the conviction had occurred at the Central Criminal Court or at assizes or at quarter sessions. In relation to such a conviction there can be an appeal to the Court of Appeal (Criminal Division)—not the Courts-Martial Appeals Court but to the Court of Appeal (Criminal Division)—against conviction and against sentence; and the Court can review both.

Why in the case of a civilian should there be no review by any civilian court of the sentence passed upon her by a court-martial? Why should the review of sentence be confined to the Service authorities? That, surely, is wrong. I have the greatest respect for the Secretary of State's opinion on most matters, and for that of the defence counsel, but I venture to suggest—and I think the noble Lord, Lord Carrington, will agree with me—that if it came to a question of considering what was the proper sentence to impose on a woman for infanticide he would admit he was somewhat at a loss.

So, what I should like to suggest to the noble Lord as worthy of serious consideration is this: not that you should provide an appeal by a civilian so convicted by court-martial to the Courts-Martial Appeals Court, but that you should give that civilian, so far as you can, similar rights to those he would possess if convicted in this country; that is to say, the right to go to the Court of Appeal (Criminal Division) on appeal against conviction or, if it is wished, against sentence. Having said that, I rather hope that the noble Lord will not accept the Amendment of the noble Lord, Lord Shackleton, because it does not provide for that; but I hope the noble Lord will say that he accepts what has been put before him by the noble Lord, Lord Shackleton, and myself in principle, and will seek to put down Amendments at a later stage.

6.16 p.m


I agree with both noble Lords that one of the most difficult functions is the exercise of appellate responsibility in relation to the Service discipline Acts. I know, because I have spoken to the noble Lord, Lord Shackleton, about it before, the case he had in mind and the experience which he had, and I sympathise with his wish to see that things of that kind do not happen. Not very many civilians are court-martialled under the Service discipline Acts—only about twenty, compared with well over 2,000 courts-martial of Servicemen. I suppose the fact that any civilians are court-martialled is in a sense rather odd, but there are good reasons for it. It is not that the Services themselves want to do it. They are dealt with by the Services only because it has been judged better to provide that these civilian offences should be dealt with by courts-martial composed of officers of the forces they are accompanying, than that they should be dealt with in local courts, with all the difficulties entailed in language and strange procedures and so on—and the noble and learned Viscount, Lord Dilhorne, is well aware of that.

I must confess to being a little anxious that any change that is made in the position of civilians as a result of this Amendment, if accepted, would be taken as a precedent for seeking to apply similar changes to the Services. It would, in my opinion, be quite wrong if members of the Services were able to appeal against sentences to a civilian court rather than to their Service board. This, indeed, the noble and learned Viscount, Lord Dilhorne, made clear was his opinion also. The tasks of a Serviceman and the circumstances in which he may have to perform them call for a very high degree of discipline, and all of us on all sides of the Committee recognise that, in order to maintain this discipline, some special code of military law is necessary. It follows that the treatment of a soldier convicted of an offence against military law may in some respects have to be different from the treatment of a civilian convicted of an offence against the civil law.

Having said that, I nevertheless accept that considerations of this kind do not stand in the way of what the noble Lord, Lord Shackleton, and the noble and learned Viscount, Lord Dilhorne, wish to do. And I am in complete sympathy with what they wish to do. I should not like to accept this Amendment as it now stands, for three reasons: first, because I do not think, however well and ably it may be drafted, it quite does what the noble Lord intends; secondly, I should like to go away and think about what the noble and learned Viscount, Lord Dilhorne, has said about the Courts- Martial Appeals Court not being the right appeal for a case of this kind; thirdly, because I am a little worried about a case which could conceivably arise in which a civilian and a Serviceman could be jointly charged with the same offence, and the civilian would be able to appeal against sentence and the Serviceman might not be able to.


But does that really matter? The Serviceman can have the matter reviewed by the Service authorities. They are the right body to consider his case. Does it matter that the right body to consider the civilian's case is another body?


The noble and learned Viscount is so much more experienced in this matter than I am, but they may come to different conclusions, and I am not at all sure that this would necessarily be—although it might be—just in the circumstances; I am not sure that it would necessarily appear to be just to those concerned. In any event, I should like to think about it. If the noble Lord, Lord Shackleton, would withdraw this Amendment, in the knowledge that I would seek at the next stage to put into effect what he had in mind, I would willingly go away and look at it.


I am grateful to the noble and learned Viscount and to the noble Lord. I appreciate that there could be a difficulty of the kind he has mentioned with regard to a civilian and a Serviceman, but similar difficulties arise, and have arisen recently, where certain cases in different courts have been treated differently also. This still would not rule out the desirability of what I have in mind. I am grateful for the support of the noble and learned Viscount. My only doubt about sending a case to the ordinary criminal appeal court is that somehow somebody in the Ministry of Defence will find, for no doubt perfectly valid reasons, that there is some objection, and I may lose the advance I have already made. So whereas I do not find myself in disagreement with the noble and learned Viscount, it may well be that there are some reasons against what he proposed, in which case I hope the noble Lord, Lord Carrington, will at least do what I ask.


Before the noble Lord withdraws the Amendment may I ask the noble Lord, Lord Carrington, to look into the other point that was touched on by the noble Lord, Lord Shackleton, about probation. If it went to the Court of Appeal (Criminal Division) there would certainly be power to put on probation, but I am not sure that such a power would exist in the case of a court-martial.


Most certainly I will do that. I do not wish to umpire between the noble Viscount, Lord Dilhome, and the noble Lord, Lord Shackle-ton, at the present time, and I am not capable of it, but I should like to go away and think about the question and then come back with something on Report stage.


The noble Lord will have to umpire, but he can do so in private, with linesmen to advise him. It is not that I disagree with the noble and learned Viscount; I merely want three-quarters of this loaf. Again I am grateful to the noble and learned Viscount for raising the probation point, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 44 agreed to.

Clause 45 [Exclusion of enactments requiring fiat of Attorney General etc. in connection with proceedings]:

6.23 p.m.

On Question, Whether Clause 45 shall stand part of the Bill?


Again we come to an Amendment concerned to defend the principle that members of the Armed Forces should, so far as is consistent with the efficiency of the Services, enjoy the normal rights of a citizen. There are two distinct points that I want to make on this: one general and one particular. The general one concerns all the statutes that are affected by this particular clause. This clause deals with the necessity to obtain the fiat of the Attorney General or the consent of the Director of Public Prosecutions before a prosecution is undertaken. One is dealing with all the Acts which are affected by this, except the Sexual Offences Act 1967. The other point I wish to make is entirely to do with that particular Act.

The general point is that the safeguards of the individual contained in the enactments affected by this clause were all presumably enacted at various times by Parliament for the protection of citizens. Therefore, under the principle which I have already stated, they should prima facie in any case extend to members of the Armed Services, unless the Government can show that they are not consistent with the efficiency of the Armed Services. And the burden of proof of this is on the Government. Although I accept the point that has been made (I cannot remember whether it was in public or in private), that in fact all these cases, with the exception of the Sexual Offences Act, occur only very rarely indeed, nevertheless I feel that if the law is now going to remove this protection it is up to the Government to tell us why. This has not been done. In the Second Reading debate the noble Lord, Lord Carrington, made some valid points about the Sexual Offences Act, but he did not make any points about the other Acts. I believe that this needs to be done, and this is an opportunity to do it.

My second point has to do with the Sexual Offences Act, the only Act, I understand, that is invoked quite often. The Committee will remember that until the 1967 Act was passed, homosexual relations in private between males were illegal. After that Act became law, sexual relationships in private between male over the age of 21 were legal, but sexual relationships between males over 21 and males under 21 were illegal. However, as a protection for the individual no proceedings can be entered into except by or with the consent of the Director of Public Prosecutions.

I entirely accept what I know the noble Lord, Lord Carrington, is going to say: that to leave the law as it stands is a total nonsense, because since the Armed Services are expressly excluded from the Sexual Offences Act 1967 we get the anomalous situation whereby while in the Armed Services a prosecution must receive the approval of the Director of Public Prosecutions in a case where one of the men is over 21 and the other is under 21, this permission need not be obtained for prosecution where both men are over 21, in spite of the fact that under Service discipline both offences are regarded as being equally illegal, abhorrent, or however you care to describe them.

Therefore I agree that it is not right to leave the law as it is at the moment, but I would ask the noble Lord and the Government to take a look at this particular situation to see whether they do not consider that the exemption of the Armed Forces from the Sexual Offences Act 1967 goes too far. I ought to make it clear that I am not entirely happy with the exemption at all, but the point I am trying to make tonight is only that in certain circumstances I think it can be seen to have gone too far.

We all know the reasons for this situation, whether or not we agree with them. I quote from the report of the Committee on Homosexual Offences and Prostitution, paragraph 144: We recognise that within services and establishments whose members are subject to a disciplinary régime it may be necessary, for the sake of good management and the preservation of discipline and for the protection of those of subordinate rank or position, to regard homosexual behaviour, even by consenting adults in private, as an offence. I think that that is the attitude the Government more or less took on that point, and I can understand it. But there are some unfortunate results. Homosexual conduct between a member of the Armed Forces and a civilian on leave, far away from the actual Services themselves, from the body of men who together form the Services, is illegal for one partner and not the other, even though it may be the civilian who is the more active partner of the two. It may even be the civilian who offers some incentive to the member of the Services to perform such an act.

I was interested that on the last Amendment the noble Lord, Lord Carrington, raised the problem of the difficulty of a civilian and a member of the Services, jointly charged, going to different courts: because here we have a situation which can result in two people performing an exactly similar act, well away from any consideration of the Service morale and discipline, where one is able to be accused and convicted under the law and the other is not. That seems to me to raise a very difficult problem in justice. I do not know the answer to it: if I did I should probably have put down a completely different Amendment from that to omit the clause.

As it is I have taken this opportunity of raising these two separate points: the one about the general relief from consulting the Attorney General and the Director of Public Prosecutions, and the other as to whether or not the exemption to the Sexual Offences Act 1967 is too broad.


I think perhaps the best way I can answer the noble Lord, Lord Beaumont of Whitley, is to explain why Clause 45 is there. Clause 45 has been included in order to restore the position that was thought to exist before the decision of your Lordships' House in the case of the Secretary of State v. Warn in 1968. This resulted in the quashing of two convictions by court-martial of charges of gross indecency because the naval authorities had not complied with Section 8 of the Sexual Offences Act 1967 which requires the Director of Public Prosecution's consent to prosecute in a case where one of the parties is under 21.

Before that judicial ruling it had been generally thought that the position was as described by the Attorney General on November 18, 1948, when he said, in another place, that he exercised no control over the jurisdiction of military courts or the administration of military law. All the Government are seeking to do in Clause 45 is to restore that position. This represents no suggestion that the military courts should not be subject to legal safeguards. The Acts themselves contain elaborate provisions to protect and preserve the Serviceman from any oppressive behaviour, and there is now the Courts-Martial Appeals Court to which any man convicted by court-martial has a right of appeal. The question is not whether there should be safeguards, but where they should be placed in the proceedings. We have to ensure that the balance is right as between these essential protections and safeguards for the individual Serviceman, on the one hand, and the equally important requirement that the disciplinary procedure should be speedy and effective.

The judicial decision of 1968 has disturbed this balance. It is now necessary for the Services, anywhere in the world, to seek leave from the Director of Public Prosecutions before prosecuting a soldier for a sexual offence if one of the parties concerned is under 21. This inevitably takes time, and it produces the temptation, which we do not wish to encourage but which is perfectly proper and understandable, to deal with more of such cases administratively instead of by proceeding under the discipline Acts. It was not, I think, during the passage of the Sexual Offences Act, Parliament's intention to reverse what the Attorney General had said in 1948. It is, I think, desirable that the position should be restored, and it is solely to this end we have included this provision in the Bill.


Do I understand from the noble Lord that it is the understanding of the Government that Parliament, when it passed the Prevention of Corruption Act 1906, the Official Secrets Act 1911, the Law of Property Act 1925, et cetera, thought it was excluding the Armed Forces from the provisions of all those Bills? The noble Lord nods, and I am grateful to him for that clarification. I should like to say again that there is a question of injustice raised by the kind of example that I gave, and I hope that the Government will have a look at that; and again perhaps it is something we might have a word about before the Report stage.

Clause 45 agreed to.

Clause 46 [Extension of powers of "higher authority" with respect to army and air force charges]:


This is little more than a drafting Amendment. It does not alter the substance of the clause. It is very technical. I beg to move.

Amendment moved— Page 37, line 26, leave out from ("and") to line 28 and insert ("also for section 80 of the Air Force Act 1955 (which is to the like effect):—").—(Lord Carrington.)

On Question, Amendment agreed to.

Clause 46, as amended, agreed to.

Clauses 47 to 51 agreed to.

Clause 52 [Countries for serving of naval sentences of imprisonment and detention]:


The next two Amendments, in my name, Nos. 6 and 7, are purely clarifying and drafting Amendments. I beg to move.

Amendment moved— Page 42, line 24, leave out ("or disciplinary court").—(Lord Carrington.)

On Question, Amendment agreed to.


I beg to move.

Amendment moved—

Page 42, line 31, at end insert— ("( ) Section 125(2) of the Naval Discipline Act 1957 (under which, except in the provisions there specified, references in that Act to the United Kingdom include references to the Channel Islands and the Isle of Man) shall be amended by substituting for the words 'section eighty' the words 'sections 80 and 82A', and by adding at the end the words and in the said section 82A, the reference to a colony shall be construed as including a reference to the Channel Islands and the Isle of Man'.")—(Lord Carrington.)

On Question, Amendment agreed to.

Clause 52, as amended, agreed to.

Clauses 53 and 54 agreed to.

6.37 p.m.

LORD CARRINGTON moved Amendment No. 8: After Clause 54, insert the following new clause:

Amendment of Naval Discipline Act 1957 as respects effect of taking offences into consideration, 1957 c. 53.

" . Section 129 of the Naval Discipline Act 1957 (jurisdiction of civil courts) shall be amended as follows—

  1. (a) in subsection (1) (under which, where a person is acquitted or convicted of an offence by a court-martial or disciplinary court or on summary trial, a civil court is debarred from trying him for the same, or substantially the same, offence), immediately before the words 'a civil court' there shall be inserted the words 'or has had an offence committed by him taken into consideration by a court-martial or disciplinary court in sentencing him', and
  2. (b) in subsection (2) (under which, where a person is acquitted or convicted of an offence by a civil court, wherever situated, he cannot be tried under the Act for the same, or substantially the same, offence, and a person so convicted is not to lose any seniority, privilege etc, by reason of the conviction or the offence), after the words 'wherever situated' there shall be inserted the words 'or has had an offence committed by him taken into consideration when being sentenced by a civil court in the United Kingdom', and for the words 'so convicted' there shall be substituted the words 'who has been so convicted or has had an offence committed by him so taken into consideration'."

The noble Lord said: Clause 49 gives naval courts-martial power to take into consideration at the request of the accused offences other than those charged. Partly as a consequence of this new power, but also in order to achieve conformity between the Service Acts, I propose by the Amendment to provide that civil courts should be debarred from trying civil offences taken into consideration by naval courts-martial and conversely that naval courts-martial should be debarred from trying military offences taken into consideration by civil courts. This is already the position under the Army and Air Force Acts and this brings the Navy into line. I beg to move.


Since the whole object is to bring the disciplinary rules of the three Services into line, this is entirely sensible.

On Question, Amendment agreed to.

Clause 55 agreed to.

Clause 56 [Addition to Naval Discipline Act 1957 of provisions as to proof of proceedings]:


Again this is purely a technical Amendment and does not alter the substance of the Bill. I beg to move.

Amendment moved—

Page 45, line 37, at end insert— ("( ) Paragraph 1 of Schedule 1 to the Courts-Martial (Appeals) Act 1968 (under which, where the record of any evidence given before a naval court-martial may be read as evidence on a retrial, it may be so read without further proof if it is produced from the custody of the Defence Council) shall be amended by substituting for the words 'if it is produced from the custody of the Defence Council' the words if it forms part of the original proceedings of the original court-martial or a copy thereof and those proceedings are, or that copy is, admissible as evidcnce under section 129C of the Naval Discipline Act'.")—(Lord Carrington.)

On Question, Amendment agreed to.

Clause 56, as amended, agreed to.

Clause 57 [Fees for copies of proceedings of army and air-force courts-martial]:

LORD AIREDALE moved Amendment No. 10: Page 45, line 45, leave out ("determine") and insert ("prescribe")

The noble Lord said: This clause provides for the determination of the fees to be charged for copies of courts-martial proceedings. The clause itself points out the contrast between the existing practice, whereby the fees have been prescribed by rules of procedure made by the Secretary of State and they have been a uniform scale of fees, and the new procedure, whereby the Judge Advocate General is to make the decision, and he is not by the clause required to prescribe the fees but to determine the fees.

It occurs to me that in peace time it may not happen all that frequently that people demand copies of courts-martial proceedings, and I suppose it might happen that the Judge Advocate General would make an ad hoc determination of the fees to be charged in a particular case. I suppose that the Judge Advocate General would be at liberty to, and might, depart from the hitherto uniform scale of fees, and might decide, for instance, that a lieutenant-colonel could properly be charged a higher fee than a private soldier. I am not attempting to argue whether that would be right or wrong, but it would be a departure from the existing practice.

I am suggesting in this Amendment that just as the Secretary of State up to now has been required to prescribe the fees, so that people who think that there is anything to be criticised in the scale of fees have been able to find out what the fees are and to make representations about them if they so desire, so the Judge Advocate General should be required in the same way to prescribe the fees in the future, simply so that people shall know in advance what the fees are going to be. I beg to move.


As the noble Lord, Lord Airedale, has said, the present maximum charges for copies of the proceedings of courts-martial have to be prescribed in Rules of Procedure. I should not think that this is the right place to prescribe those charges. The purpose of this clause is to permit the Judge Advocate General to operate in a way similarly to the registrar of the Courts-Martial Appeal Court. I appreciate that the noble Lord's Amendment is designed to maintain the status quo, because he feels that the individual should be in a position to assess the cost of any proceedings which he may require. I absolutely appreciate that. But in fact the present practice does not help the individual very much; nor for that matter can any other, because the cost of the proceedings depends upon a factor which is different in every case; namely, the length of the proceedings required. Therefore the only way of ever establishing the cost of anything is to refer to the Judge Advocate General who, on application, makes known the total cost of the copy of the proceedings required. So I do not think that the noble Lord's Amendment has the effect of doing what he hopes is already happening.

In case the noble Lord should still feel uneasy—and I hope he does not—I would gladly give him my assurance that there is no question of charges being fixed in excess of those which are levied for equivalent services from, say, the registrar of the Courts-Martial Appeal Court, and that information on scales of costs will always continue to be available on application to the Judge Advocate General's Department.


I am very reassured by those last words, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

Clauses 58 to 61 agreed to.

6.42 p.m.

LORD BEAUMONT OF WHITLEY moved Amendment No. 12: After Clause 61, insert the following new clause

Extension of powers of Parliamentary Commissioner

" . The following amendments shall be made to the Parliamentary Commissioner Act 1967There shall (at the appropriate places in alphabetical order) be inserted in the list of authorities in Schedule 2: — Army Royal Air Force Royal Navy and in paragraph 6 of Schedule 3, before the words "proceedings at any place" there shall be inserted the words "disciplinary".

The noble Lord said: The object of this, the third of my probing Amendments, is to extend the Parliamentary Commissioner Act 1967 to cover the Armed Services. It is purely a probing Amendment. Had it not been, I should probably have preferred to put down an Amendment setting up a purely Service Parliamentary Commissioner than one extending the powers of the present Parliamentary Commissioner; but it would have meant a prolonged and unwieldy Amendment, and I thought it more convenient to your Lordships to raise the matter in this form.

That there are a great many complaints arising out of Service life is no condemnation of Service life. There are a great many complaints arising out of civilian life, as we all know, and many of them are raised in your Lordships' House. In one year the Parliamentary Commissioner received about 250 of such complaints, and would probably have received a great many more if Members of Parliament had not been aware that such complaints were excluded from his powers. As it was, many went to him merely so that he could certify that they were excluded from his powers, and thus satisfy the Members' constituents.

Quite a number of Members of another place have said that they receive many complaints from Service people and about Service affairs. Those of your Lordships who have been Members of another place, and particularly those who have represented garrison towns, may know that this is true. Perhaps even the number of complaints raised in another place is an underestimate of the number that there might be, because there appears to be a feeling that even to-day Servicemen are not completely acquainted of their power to come to their Member of Parliament. I am sure that this is not due to any falling down on the matter by the Service Departments. But it was quite interesting that Mr. Antony Buck, the Conservative Member for Colchester, with whom I shared my own exiguous military service, speaking in the proceedings of the Select Committee of another place on the Parliamentary Commissioner for Administration, at page 153 said: Representing a garrison town, I have a lot of soldiers coming in to see me, and many of them say, 'Of course it is only recently that we realised we were even allowed to come and see you'".

To say that there are complaints is not to say that there is any serious degree of maladministration in the Services, and I should not like anything that I am saying at the moment to be construed in that way. It is merely to admit what we all know to be true: that wherever there is authority there are people who will feel aggrieved; and the best thing that can be done about this is that justice should not only be done but should be seen to be done. It is even more important in Service life than in civilian life, because although it is probable that the means of ratifying complaints is stronger and better organised in Service life than it is in civilian life, equally the authority exercised is greater and the sense of grievance can go deeper.

Many other countries, some of them with strong military traditions, and almost all of them with a high sense of justice in public life which is carried through to their Services, and was carried through to their Services before they set up a Parliamentary Commissioner, have some kind of what, for lack of a generic term, I will call an Ombudsman. In Denmark, the powers of a general Ombudsman apply to the forces. In Norway, they have what I can only describe as an Ombudsboard. In Sweden, they had a separate military Ombudsman, but his powers are now merged with those of the civilian Ombudsman. In Germany—and I think this is the most interesting single example—there is a special Ombudsman for the Services. He handles over 6,000 questions, not necessarily complaints, of one kind or another in a year. When the German Ombudsman was first set up there were many senior officers and ex-senior officers who felt that the appointment was unnecessary and would be bad for morale and discipline. I have consulted some senior German officers on this matter, and I believe that now the overwhelming feeling of regular officers is that it is a thoroughly worthwhile institution. It has improved morale and pride in citizenship. It has done away with a number of nagging doubts and disgruntlement which can harm Service life.

We are sometimes told that there is a difference between volunteer and conscript armies. In this matter I do not think this applies. What we are considering is not the nature of a contract that a man enters into when he joins the Service, but the assurance of his rights as an ordinary citizen when he arrives there. In the German experience they have found that proportionately they get as many questions from Regulars as from volunteers, and many questions from officers as well as from other ranks.

As your Lordships will know, this matter has recently been raised by Dr. Alan Thompson in an additional note of the Donaldson Committee on Boy Entrants. He closes his remarks by saying: I suggest, however, that the Minister should now examine (a) whether the Ombudsman system can be reconciled with the special security and disciplinary needs of the Services; (b) if so, whether it would be better to have a separate military Ombudsman, as in Sweden, or extend the existing Ombudsman system to the Services; (c) the kind of complaints which should be submitted to him.

I think it is a pity that such a major consideration, although it would have had to be started long before the publication of the Report of the Donaldson Committee, could not have been made in time for inclusion in this important Bill, because, although the noble Lord the Secretary of State may think otherwise, it seems to me that there is a place for it in this Bill and not just in a separate Bill. If, as I somehow suspect, it is now too late to consider this matter for inclusion in this Bill, I should like to ask the Secretary of State whether he will not at least agree that the Government should look into the matter again, and should see whether some form of Parliamentary Commissioner should be established to deal with these matters. I beg to move.


I am sure the Committee are grateful to the noble Lord, Lord Beaumont of Whitley, for the very thorough way in which he has studied this complex Bill, the skill with which he has chosen certain elements of it to raise in discussion, and the lucidity with which he has introduced his points of view. Having said that, I hope he will forgive me if I find myself unable to agree with him. I hope he will not feel that the two other Parties are ganging up against him. Perhaps I am assuming too much and am putting words into the mouth of the noble Lord, Lord Carrington. If he should disagree with the noble Lord, Lord Beaumont of Whitley, he must realise we are both members of the same trade union, of which the Secretary of State is so to speak, the general secretary and I was once a branch secretary.

Although, in my view, the Armed Forces are moving closer to a civilian way of life in pay and conditions of service, and so on, and the legal provisions we are introducing through this Bill, at the end of the day they have to be a different sort of animal. When they are operational, they have to have an immediate reaction and obedience to orders. When troops go into action we must accept the fact that democracy has to go out of the window. What one must have is an efficient and flexible system of discipline which enables men to act effectively in action.

I think the over-civilianisation of the Armed Forces that is being tried in certain countries in the world does not in fact lead to this type of discipline. The introduction to the Armed Forces of trade union methods, the application to them of the Ombudsman principle, must in the long run weaken instant obedience. I think the most sad case that one has noticed in recent reading was the case of a platoon in Vietnam where, when a platoon was ordered to attack, some members of the platoon said to the officer, "We want to discuss this with the Inspector General". There is a conceivable situation, in certain circumstances, that someone might say "We shall have to raise this with the Ombudsman". This is the sort of thing that would weaken discipline intolerably.

I think the basic difference between the Scandinavian countries and this country is that there is no individual Member of Parliament, so far as I know, in Scandinavia. The Members of Parliament are chosen from a Parliamentary List, and for this reason the average soldier in Scandinavian countries has not his own Member of Parliament as he has in this country. If this Bill were altered to fall in with the noble Lord's views, the application would have to go through the Member of Parliament anyway: for that is how the Parliamentary Commissioner operates. Therefore, in my view, it is much better that, just as a civilian uses the machinery which exists for him, if a member of the Armed Forces has a grievance to raise, he should raise it through his Member of Parliament. We should not bring in a piece of machinery which we do not use in tile same way as do the Scandinavian countries.


As I understand the Amendment of the noble Lord, Lord Beaumont of Whitley, he would agree that disciplinary proceedings under the Services' Discipline Acts should continue to be a matter not subject to the Parliamentary Commissioner.




I am sure that is the view on both sides of the House. This is really what the noble Lord, Lord Winterbottom was saying: that it would be totally wrong for the Parliamentary Commissioner to be given powers in relation to the proceedings of any court of law, military or otherwise. His task is the discovery of maladministration on behalf of a Member of Parliament, to whom he reports his findings.

Having said that, I think the noble Lord, Lord Beaumont of Whitley, was really talking about something a little wider and different from disciplinary proceedings. I find myself in a difficulty here, because, as noble Lords will recall, a Select Committee of another place reported earlier this year on the question of the area excluded from the Parliamentary Commissioner's investigations. That Report raised considerable and important issues of policy for the Government. It is still under consideration, and in due course a statement will be made upon it. I know the noble Lord will understand that I am not in a position to anticipate what the statement will be, or to indicate now whether the Government feel that any changes can be made in the Parliamentary Commissioner's jurisdiction on the lines which were set out by the Select Committee.

For that reason, I do not think that it would be right to use this Bill, which is concerned overwhelmingly with the codification of Service law, to make a change in the complex legislation regarding the Parliamentary Commissioner, before the Government have had a chance of making up their mind on the Select Committee's Report. I do not wish to be in any way damping on what the noble Lord has said, or indeed encouraging I am entirely neutral until we have had a chance of discussing this Select Committee report. I hope the noble Lord will not think that there has been any suggestion of "ganging up" by the other two Parties.


Indeed not. Before withdrawing this Amendment, I should like to make the point which the noble Lord, Lord Carrington, has already made for me; that this Amendment was not meant to deal in any way with disciplinary matters. Therefore, I do not think that the point made by the noble Lord, Lord Winterbottom, applies. I do not think that the ability to appeal on matters of maladministration would in any way weaken the discipline in the Services. The more we have intelligent citizen soldiers, the better. Nor, if I may say so with great respect, did I think the point he made about Members of Parliament was entirely valid because, if I understood him aright, he said he did not think we should put in a provision in order that soldiers should be able to complain in the same way as their civilian counterparts. This is exactly what I am seeking to establish. They can complain to their Member of Parliament, and then they can complain to the Parliamentary Commissioner. And this is exactly what I should like to see happen. Having made those two points, I will only add that I am delighted that the Government are considering this whole matter. I should just like to express the wish that they consider this point favourably. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 62 [Minimum age for enlistment or entry without parental etc., consent]:

6.59 p.m.

LORD CARRINGTON moved Amendment No. 13:

Page 51, line 23, at end insert— ("( ) Paragraph 9 of Schedule 7 to the Army Act 1955 (which substitutes references to the age of 17 for references to the appropriate minimum age in Part I of that Act as it applies to marines) shall cease to have effect.")

The noble Lord said: This Amendment is necessary because the provision relating to the Marinas appears in a Schedule to the Army Act, rather than in the Naval Discipline Act, and it is necessary to ensure that all the Forces are covered by this necessary consequence of the acceptance of the Latey Report. I beg to move.

On Question, Amendment agreed to.

Clause 62, as amended, agreed to.

Clause 63 [Purchase of discharge from army and air force]:


This is a very technical Amendment, and I should be doing your Lordships no service if I read out the explanation. I beg to move.

Amendment moved—

Page 51, line 33, at end insert— ("( ) In section 2 of the Navy, Army and Air Force Reserves Act 1964 (liability of certain former soldiers to recall for service), in subsection (1)(b) (no liability in the case of persons discharged under section 14 of the Army Act 1955), the reference to section 14 of the Army Act 1955 shall include a reference to regulations under section 2 of the Armed Forces Act 1966 conferring a right to discharge by purchase.")—(Lord Carrington.)

On Question, Amendment agreed to.

Clause 63, as amended, agreed to.

Clause 64 agreed to.

Clause 65 [Complaints by persons subject to Naval Discipline Act 1957]:

On Question, Whether Clause 65 shall stand part of the Bill?


I rise only to give notice that on the Report stage I shall seek to move an Amendment to this clause. As drafted the clause seeks to place the officers of the Royal Navy upon the same footing as their fellow officers of the Army and R.A.F. This is wholly right, and I commend it to your Lordships.

On the other hand, the clause as drafted does not seek to deal with the position of the other ranks of the Army and the Royal Air Force. At present a sailor has a statutory right to take his complaint right up to the Defence Council, if he is unable to obtain redress of any grievance at any lower level in the administrative chain. The soldier and airman do not have the same statutory right, but the Royal Air Force have for a very long time given the airman similar rights by Queen's Regulations. I do not think that this is a matter of very great substance, but I think it right that the three Services should be treated alike, and I shall therefore put down an Amendment on Report stage.

Clause 65 agreed to.

Clauses 66 to 72 agreed to.

Clause 73 [Meaning of "rating" in Naval Discipline Act 1957]:

7 p.m.

LORD CARRINGTON moved Amendment No. 15:

Page 57, line 42, at end insert— ( ) Section 45(2)(b) of the said Act (under which a rating may be arrested by any officer, and by any chief petty officer, petty officer or leading rating of superior rate or greater seniority in the same rate) shall be amended by inserting the words 'warrant officer' immediately before the words 'chief petty officer'. ( ) In section 14(1) of the Armed Forces Act 1966, in the definition of 'rating' (person of or below the rate of chief petty officer), for the words 'chief petty officer' there shall be substituted the words warrant officer'; and in section 21(1) of the Reserve Forces Act 1966, the definition of 'man' (which for the military and air forces except the marine forces includes warrant officers, and for the naval forces means a person of or below the rate of chief petty officer) shall be amended by omitting the words '(except in relation to the marine forces)' and by substituting the words 'warrant officer' for the words 'chief petty officer'.

The noble Lord said: This clause and my Amendment are necessary because of the re-institution of the rate of warrant officers in the Royal Navy. For many years the highest naval rate has been chief petty officer and so the able sailor who did not wish to advance through becoming commissioned, or else did not qualify for the upper deck, could not achieve a status equivalent with the warrant officers of the Army and the Royal Air Force. I feel, therefore, that there will be general approval among your Lordships that it was decided by the Admiralty Board to put an end to this anomaly. The first selection board for the new rate will be in January, and the first holders of the new rate will appear in the Fleet next spring. They will be called fleet chief petty officers initially, because the Naval Discipline Act does not provide for any rate above chief petty officer. Clause 73 seeks to give them the proper title of warrant officer. I beg to move.

On Question, Amendment agreed to.

Clause 73, as amended, agreed to.

Clause 74 [Sufficiency of evidence in Scottish courts]:


This is a matter of construction of words, and the difference between North of the Tweed and South of the Tweed. I beg to move Amendment No. 16.

Amendment moved— Page 58, line 11, at end insert (", in section 21 of the Army Reserve Act 1950 as subsection (3), in section 21 of the Air Force Reserve Act 1950 as subsection (3) and in section 34 of the Auxiliary Forces Act 1953 as subsection (4).")—(Lord Carrington.)

On Question, Amendment agreed to.

Clause 74, as amended, agreed to.

Clause 75 [Repeals and transitional provisions]:

LORD CARRINGTON moved Amendment No. 17: Page 58, line 14, at end insert ("(Part II of which includes certain enactments which are spent)")

The noble Lord said: This Amendment provides for the addition of a short factual statement to Clause 75(1) which gives effect to Schedule 2. Certain enactments which are repealed by Part II of the Schedule are no longer effective. One example is the Naval Billeting Act 1914, the operation of which depends upon the issue of a proclamation by Her Majesty calling out the Naval Reserves under the Royal Naval Reserves (Volunteer) Act 1859. This Act was revealed by the Armed Forces Act 1966, so that the 1914 Act cannot now be brought into operation. Its remaining provisions are reenacted in an amended form by Clause 66 of the Bill now before you. I hope that your Lordships will agree to this Amendment. I beg to move.

On Question, Amendment agreed to.

Clause 75, as amended, agreed to.

Clause 76 agreed to.

Schedule 1 [Amendments arising from Part 11 of this Act]:


All of these Amendments in the Schedule are either purely drafting or technical and they do not affect the substance of the Bill in any way. If your Lordships agree, I suggest that I move all the Amendments in Schedule 1 en bloc, and all the Amendments in Schedule 2 en bloc. I beg to move Amendments 18 to 20.

Amendments moved—

Page 60, line 29, at end insert— ("( ) In section 198(8) of each Act, for the words "body of troops" or, as the case may be, "body of the air force" there shall be substituted the words "body of Her Majesty's forces".")

Page 61, line 7, at end insert— ("( ) In Schedule 3 to each Act, the following shall be substituted for paragraph 4 in the second column:— 4. (a) Using insubordinate language to his superior officer. (b) Behaving with contempt to his superior officer. ( ) In Schedule 3 to each Act, the following shall be inserted after the paragraphs numbered 4:—

"4A. Using insubordinate language to his superior officer. 4A. Behaving with contempt to his superior officer.
4B. Striking a person who is on board a ship or aircraft when taken as prize. 4B. Ill-treating that person otherwise than by striking him."
( ) In Schedule 7 to the Army Act 1955, paragraphs 12 and 12A shall be omitted.")

Page 61, line 15, at end insert— ("( ) In section 118(2)(a), after the word "fourteen" there shall be inserted "14A".")— (Lord Carrington.)

On Question, Amendments agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Repeals]:


I beg to move Amendments 21 to 32.

Amendments moved—

Page 62, line 9, column 3, at end insert ("; and in section 31(3), the words front "and in this section" to the end")

Page 62, line 56, column 3, at end insert ("In Schedule 7, paragraphs 12 and 12A.")

Page 63, line 5, column 3, at end insert ("; and in section 31(3), the words from "and in this section" to the end")

Page 64, line 20, column 3, at end insert ("In section 47(2), the words "or place of duty".")

e 64, line 23, column 3, leave out ("97(1)(a)") and insert ("97(1), in paragraphs (a) and (c),")

Page 64, line 30, column 3, at end insert—("In Schedule 4, paragraph 2.

In Schedule 5, the entry relating to Schedule 7 to the Army Act 1955.")

Page 64, line 31, column 3, at beginning insert ("In section 13(1), the words from "or that subsection to "of that Act".")

Page 64, line 36, column 3, leave out from ("1955") to end of line 40.

Page 65, line 9, at end insert—

("14 Geo.6. c. 32. The Army Section 15(3). Reserve Act 1950.
14 Geo. 6. c. 33. The Air Force Section 15(3).") Reserve Act 1950.

Page 65, line 17, column 3, at end insert ("In Schedule 7, paragraph 9.")

Page 65, line 24, column 3, at end insert (", paragraph 13(8), paragraph 14(8), and, in paragraph 18(4), the words from "in subsection (4) "to the end")

Page 65, line 38, at end insert—

("1966 c. 30. The Reserve Forces Act 1966. In section 21(1), in the definition of "man", the words "(except in relation to the marine forces)".")
—(Lord Carrington.)

On Question, Amendments agreed to.

Schedule 2, as amended, agreed to.

House resumed: Bill reported with the Amendments.