§ 2.57 p.m.
§ THE SECRETARY OF STATE FOR DEFENCE (LORD CARRINGTON)
My Lords, I beg to move that this Report be now received.
§ Moved, That the Report be now received.—(Lord Carrington.)
§ On Question, Motion agreed to.
§ Clause 29 [Scandalous conduct by Officers]:
LORD BEAUMONT OF WHITLEY, moved Amendment No. 1:
Page 2, line 44, leave out ("with or").
§ The noble Lord said: My Lords, I will not detain the House by rehearsing the number of arguments which we had on Committee stage, even though there are now present a number of noble Lords who were not present on that occasion. Basically speaking, we were talking about the whole area of scandalous conduct as a cause for dismissal from the Armed Services, and I think we all agreed at that stage that the matters with which Military, Naval and Air Force law should deal could be divided into three categories: those that would be civil crimes under civil law; those that are military crimes, because they have an effect on something which is specifically to do with the Services—such as sleeping on guard or cowardice in the face of the enemy; and thirdly, those matters which pertain to the morale and discipline of the Forces.
§ The noble Lord, Lord Carrington, and the noble Lord, Lord Winterbottom, accepted, I think, that I felt as strongly as they did about the need for this third category; that the Services are a very special case and that there should be some way of getting rid from the Services of those who offend against the ethos of the Services in that regard. The noble Lord, Lord Winterbottom, on the last occasion talked particularly on this Amendment, or the Amendment of which this is a variation, about the necessity for dealing with scandalous conduct, 1283 and on re-reading his speech, I entirely agree with everything he then said. The noble Lord, Lord Shackleton, said of that Amendment that he saw there were difficulties in laying down a borderline of scandalous conduct, because it is difficult to know where to draw the line when the ethos of behaviour of members of the Armed Forces differs from that of an ordinary citizen.
§ My Amendment on the Committee stage would have sought to make scandalous behaviour—that is, behaviour which does not fall into either of the two categories of civilian and military crimes but merely offends against the ethos of the Services—subject only to dismissal without disgrace. I still hold to what I said on Committee stage. I think it is wrong that such a widely drawn clause, such a blanket offence, should be punished with a penal punishment, which dismissal with disgrace really involves.
§ I realise that the acceptance of my Amendment would mean that certain offences which are dealt with under this clause would have to be dealt with under other clauses, but I do not think that that is too big a price to pay for this particular point. As the noble Lord knows, I accept that the administration of this Service law is extremely good and very careful, and so far as I can see one cannot pick out any case of any serious or even minor injustice over a long period of time. Nevertheless, I think that there is something to be said for getting our law right, so that justice is not only done but (to use a cliché) totally seen to be done, and this Amendment of mine would have that effect. I think that we should take these cases, which are not crimes and which would not be crimes in civilian life, and which in terms of the special needs of the Services would merely by offences against the ethos and good order of the Services, out of the criminal category altogether and make them subject only to dismissal without disgrace, and not to dismissal with disgrace. I beg to move.
§ LORD CARRINGTON
My Lords, if I construe this Amendment aright, and I think I do, its effect would be to require a court-martial which has convicted an officer of scandalous conduct not only 1284 to dismiss him from Her Majesty's Service but expressly to state that his dismissal is without disgrace. There is no such punishment at present in the Service Acts and the noble Lord's Amendment would require it to be written as a new item in the table of punishments. But there is a very great difference between passing a sentence of simple dismissal, which is not specifically with disgrace, and going out of one's way to specify in the sentence itself that the dismissal is without disgrace.
Your Lordships may take the view that it would be inappropriate to require a court-martial by law to add such a rider to any sentence of dismissal, and indeed that this would be especially inappropriate where the court, by definition, has just found an officer guilty of scandalous conduct unbecoming an officer. Having said that, I am not sure that the noble Lord meant his Amendment to have that effect. I do not think he thought, when he put it down, that it was in point of fact specifically ensuring that a court would say it was dismissal without disgrace. If I may answer the Amendment which I think he meant—that is, dismissal tout court, without any disgrace or anything added to it—may I just explain the purpose of the section?
The present Naval section allows a court-martial to award a sentence of dismissal or of dismissal with disgrace. The Army and Air Force Acts, on the other hand, make cashiering, which is the Army and Air Force equivalent of the Naval dismissal with disgrace, a mandatory punishment. Clause 29 seeks to extend the flexibility of the Naval Discipline Act to the other Acts and adopts dismissal with disgrace as a common punishment in all three Acts and replaces cashiering. Dismissal with disgrace will stand in the same relation to dismissal as a severe reprimand stands to a reprimand, and it is intended to be available in cases where the court finds that the behaviour in question is so reprehensible that plain dismissal is an inadequate expression of the serious view they have taken of it.
I am also not entirely sure that the noble Lord understands that dismissal with disgrace is not a punishment which is peculiar to the offence of scandalous behaviour by an officer. It is a punishment which any Service man, officer or otherwise, convicted of any offence in the 1285 Acts which are now before us, is liable to suffer. Were the noble Lord's Amendment to be adopted, the offence of scandalous conduct would be the only offence in the Acts where a court-martial could not decide to award dismissal with disgrace, no matter how serious a view they took of the case. In these circumstances, I think it would be better if we left the matter as it is and for the noble Lord to be good enough to withdraw his Amendment.
§ LORD SHACKLETON
My Lords, I am sure that the noble Lord, Lord Carrington, is quite right in his construction of the Amendment and that he is right in turning his efforts in the direction in which I believe the noble Lord, Lord Beaumont of Whitley, intended. The simplest Amendment would be to delete "with or without disgrace" and leave it as just dismissal. But, granting that that is the noble Lord's intention, I think that there are some considerations to be borne in mind.
I believe that what the Government are doing is an improvement on the past, and to that extent we are advancing. But I have been somewhat uncertain as to whether we ought to get rid of the conception of disgrace. The noble Lord took the analogy of reprimand and severe reprimand. With respect, I do not think that is an analogy. The important factor here is the act of dismissal following a court-martial, which appears to me again contrary to what the noble Lord, Lord Beaumont of Whitley, said—though he may be wrong—that it is a penalty inflicted by the court. Perhaps it is not a penalty. The difficulty is in construing the word "disgrace". There was a civilian case, which I may use to illustrate the difficulty, of a certain dentist who was brought before whatever tribunal the dentists come before on the ground that he had some improper relations with a patient—actually, it was a patient whom he had never attended. He was found guilty of infamous but not disgraceful conduct and was not struck off the roll. I find it difficult to distinguish between "infamous" and "disgraceful". And I am wondering whether the time has not come when we should be rid of this point.
On the other hand, it is fair to say that personal honour is something to which importance is attached in the Services. 1286 Also, there is the possibility that in certain cases—because, as the noble Lord the Secretary of State said, this applies to other offences than scandalous conduct—a court-martial might not be inclined to inflict some other, stronger penalty and would prefer instead to add the words "with disgrace". So I would say that there are arguments on both sides. For my part, rather reluctantly I would be inclined to leave it in the way the noble Lord, Lord Carrington, has suggested. It is possible that personal judgments of this sort might be dispensed with. I hope that the noble Lord and those who are responsible in the Services will continue to watch this side—and I sometimes wonder whether there is any coherent review of the results of courts-martial—to see how this procedure goes and to consider the next time round (I forget whether this Bill is for five years or is now for ever) whether this particular addendum should be dispensed with.
§ LORD SLATER
My Lords, would not the noble Lord agree that when the attachment is given of dismissal with disgrace it carries with it something which is nauseating, especially when a man has to return to civil life and seek to take up employment? This young man, or whoever it is, having been dismissed, may seek to find employment but be denied the type of employment that he desires because of this particular attachment. The word "disgrace" in itself is most serious, and it is very hard for any member of society to have it attached to him. Will the noble Lord have another look at this?
§ LORD SHINWELL
My Lords, my only qualification for intervening is that I spent several years at the War Office as Minister of Defence, and occasionally cases of what were described as scandalous behaviour were reported to my section of the Defence Department. Cases of that sort were either referred to a court-martial or sometimes dealt with summarily without going to court-martial. I think that everything depends on the definition of the term "scandalous behaviour". What does it denote? Some of the cases that came before me for review were cases that had been tried by court-martial and a decision had been given; and, as the noble Lord the Secretary of State for Defence is now well 1287 aware, because of his occupation of that office, these matters often come up for confirmation.
The power of deciding whether the decision of the court-martial should be accepted or rejected is vested either in the Secretary of State for War or any other Service Minister, or in the present situation in the Minister of Defence. What is meant by scandalous behaviour? I can only say, from such experience as I occasionally had, that scandalous behaviour more or less relates to indecent behaviour, homosexual behaviour. The noble Lord, Lord Beaumont, dissents, and perhaps it would be useful to have his definition of scandalous behaviour.
§ LORD BEAUMONT OF WHITLEY
My Lords, if the noble Lord had been here for the Committee stage or had read Hansard, he would know that the noble Lord, Lord Carrington, furnished me with a complete list of all the offences for which anyone had been convicted of scandalous behaviour over the last 15 years, and only a small number were homosexual offences.
§ LORD SHINWELL
All I can say is that there were cases (and I regret to say this) of high-ranking officers. In a situation of that kind, if dismissal was decided upon, obviously it denoted dismissal because of scandalous behaviour.
There is another matter to which I should like to refer—and perhaps the noble Lord who moved the Amendment will be good enough to reply to it. Is there not a distinction drawn in this Amendment (the noble Lord will correct me if I am wrong) as between the treatment to be meted out to an officer and the treatment meted out to other ranks? Of course, it is well-known as regards other ranks that frequently they are dismissed with disgrace, and hardly any objection is taken, unless it comes up for confirmation before the appropriate Minister. Perhaps the noble Lord will say whether he dissents from what I suggest, or agrees with it, because I personally could not agree to any kind of Amendment which would distinguish as between an officer and one of the other ranks.
§ LORD CARRINGTON
My Lords, perhaps I may, with respect, remind your Lordships that this is the Report stage. I am allowed to speak only once and I 1288 can only speak again with leave of the House, for which I now ask. I made a point of not getting up immediately after the Amendment was moved so that your Lordships could say what you had to say on the Amendment before I wound up. I may say that on this occasion I agree with the last words of the noble Lord, Lord Shinwell.
§ LORD SHACKLETON
My Lords, if I may interrupt the noble Lord, he has skilfully informed the House that none of us can speak twice—it is very necessary to remind the House of that—and if that was the object, that is fine. But there are occasions when it is most helpful to have the Minister's reaction. Whereas I am all against a Report stage becoming too ragged, none the less, I think we entirely agree to the noble Lord speaking again, and he need not feel any embarrassment about asking for the leave of the House.
§ LORD CARRINGTON
My Lords, the noble Lord has very skilfully spoken twice without the leave of the House. May I ask leave of the House to speak for a third time? I was saying that I agree with the noble Lord, Lord Shinwell. I do not think this Amendment will do, not only because it does not really carry out the intention which the noble Lord, Lord Beaumont, has in mind, but also because it suffers from the great disadvantage—and I think it would have a curious effect—of removing dismissal with disgrace as a punishment for the offence of scandalous conduct, and yet leaving it for everything else. This, it seems to me, would be a very odd thing for the Government to accept.
The noble Lord, Lord Shackleton, and the noble Lord, Lord Slater, really argued against dismissal with disgrace as a punishment at all. But this is not what the Amendment seeks to achieve. I think one can argue that dismissal with disgrace is not a suitable punishment, although I personally do not entirely agree with that. One only has to look at the list that I sent to the noble Lord, Lord Beaumont, to see how infrequent are the cases in which this has happened: and I do not think one need be too sorry for the people who were the recipients of this punishment.
I think one also has to remember that the Services are proud of the standard of conduct which they believe it to be necessary 1289 for members of the Armed Forces to have. If somebody breaks what they think is the proper code of conduct, then they feel—and I feel with them—that there should be, in the circumstances, a punishment which makes it abundantly clear that the man has fallen from those high standards.
§ LORD BEAUMONT OF WHITLEY
My Lords, I entirely accept that the Amendment that I have put forward does not achieve what I had hoped it would. The second thing that I should like completely to concede is the point made by the noble Lord, Lord Shinwell—although it is not entirely the point of the noble Lord, Lord Carrington—about what other offences, if this Amendment were accepted, should come into the same category. I am not trying to remove dismissal with disgrace from Service discipline altogether. I am trying to remove it from blanket clauses. Therefore, I accept what I think is the corollary put forward by the noble Lord, Lord Shinwell: that if I am removing it for scandalous conduct, then I should remove it for the other blanket clause, which is conduct prejudicial to good order and discipline. I accept that that would have been a corollary and that I ought, if putting forward this Amendment, to put forward that one at the same time. I am most grateful to the noble Lords who have spoken on this point. I am a little disappointed in that I do not think that the noble Lord the Secretary of State has really come to grips with the argument behind the Amendment that I am putting forward, when he so sympathetically examined my arguments at a previous stage.
I hope that we have said enough on the Report stage to show that there are some people who have genuine doubts about the penalty of dismissal with disgrace for these blanket offences, which would not be crimes, either in terms of civil law or strict military security. Therefore, in asking your Lordships' leave to withdraw this Amendment, I hope that the noble Lord the Secretary of State will do as the noble Lord the Leader of the Opposition has suggested, and have another look at this in the course of the next year, or whatever the appropriate period may be. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.1290
§ 3.21 p.m.
LORD SHACKLETON moved Amendment No. 2:
After Clause 42, insert the following new clause:
. The following section shall be inserted after section 8 of the Courts-Martial (Appeals) Act 1968—
8A. A civilian convicted of an offence by a court-martial may appeal to the Court of Appeal against his conviction and sentence and for the purposes of such an appeal his conviction shall be treated as if it had been a conviction on indictment and his sentence as a sentence passed on his conviction of an offence on indictment; and the provisions of the Criminal Appeal Act 1968 shall apply".
§ The noble Lord said: My Lords, I rise to move the Amendment standing in my name. At the Committee stage I moved an Amendment, dealing with the same subject, which received general support in the sense that the noble and learned Viscount, Lord Dilhorne, gave support to the principle, and the noble Lord, Lord Carrington, was most forthcoming. He said that if I would withdraw my Amendment I would do so in the knowledge that he would seek at the next stage to put into effect what I had in mind. Owing to the speed with which this Bill is being hurried through this House, the noble Lord, Lord Carrington, has been given no time at all to do anything. I find it—and I am sure the noble Lord, with his experience as a former Leader of the Opposition will understand my position—rather objectionable that at this period in the Session a Bill of this importance, introduced in your Lordships' House, should not be given the time for the consideration necessary; even enough time for the noble Lord, Lord Carrington, himself to consider properly what was said on Committee.
§ I am sure he will agree that if he were in my place he would say that if we have a role in this House we ought to have the necessary time available. I fully acknowledge that when I was Leader of the House, and leading for the Government, there were occasions when we asked the House to do things and to "swallow" speeds, which were, to put it mildly, pretty undesirable. The House and the noble Lord were always very co-operative when there was a particular timetable to be met, to get something through by a particular date, when it had 1291 to be got through, or towards the end of the Session. But I cannot see the reason for the haste with this Bill, other than the fact that we know the Commons are going to be tied up on the Floor of their House with the Industrial Relations Bill. We shall not necessarily be as accommodating in the future. I am also conscious that this Bill is going to a Select Committee in another place. Having said that, I can only express my sympathy with the noble Lord at finding himself in this position.
§ I have put this Amendment down for two reasons. One is so that he can tell us how it is that he has been unable, as yet, to produce an Amendment. He need not go into too much detail, because we know that the answer is that he has not had time. The second reason is to give him an opportunity at least to give a progress report on his thinking in the matter. The noble Lord has been helpful and has shown an initiative in this matter, so I would not wish to twit him too much on this.
§ I have put down this Amendment, not in the form of my original Amendment, which we have agreed was not satisfactory, but in the form that the noble and learned Viscount, Lord Dilhorne (who I know would have liked to be here, but is perhaps engaged elsewhere in his capacity as a Lord of Appeal), argued rather forcefully. I do not necessarily stand by his point, but I think it is worth making: that once a civilian has been convicted by a court-martial—and we are all agreed that in certain circumstances it is right that civilians should be tried by courts-martial, for their own protection—thereafter, so far as possible, the procedures which should be followed should be those that would apply in the case of a civilian convicted in a civil court. There should be a right of appeal, both against conviction and against sentence, to the Court of Appeal, and not necessarily to the Courts-Martial Appeal Tribunal. A particular argument in favour of this procedure (although I am not clear on the law with regard to it) is that it might in certain circumstances be possible to make use of the probation procedures, which cannot be used under a court-martial.
§ The noble and learned Viscount had very considerable force in his argument that there may well be reasons of which 1292 I am not aware (I am not an expert on this) as to why this is inappropriate. For that reason I should not wish to press this if an Amendment along the lines of my original Amendment were more acceptable. There will be time in another place to deal with this, and I think it is a pity that we cannot make the Amendment in our House; but there is something to be said for taking some time about this. I should like to suggest to the noble Lord that he might consider consulting the Law Officers on this matter. It seems to me to be a delicate issue, one on which the Service authorities, admirably advised as they may be by the Judge Advocate General, or the Judge Advocate of the Fleet (who I think is the Naval equivalent), might find it helpful if the benefit of the advice of Sir Peter Rawlinson, or of the noble and learned Lord who sits on the Woolsack, were obtained as to the most appropriate way to proceed. Despite the shortage of time we have to deal with this matter—though I acquit the noble Lord of any discourtesy to the House, and I am grateful for his sympathetic approach—I shall be interested to hear any further assurances he can give, and whether he may like to consider the rather different approach which I know was in the mind of the noble and learned Viscount, Lord Dilhorne. I beg to move.
§ LORD CARRINGTON
My Lords, when we discussed the Amendment of the noble Lord, Lord Shackleton, at the Committee stage I said that I was in sympathy with the broad objectives that he had in mind. I promised to see whether I could find ways to do what he asked. This was—if I may remind your Lordships—that arrangements for review, petition and appeal by civilians convicted by courts-martial should be left as they are at present, but that the civilian should be given an additional option which the Serviceman would not have to appeal against sentence to the Courts-Martial Appeal Court. Subsequently, as the noble Lord has said, the noble and learned Viscount, Lord Dilhorne, intervened and came forward with another suggestion which was that a civilian who wished to appeal against sentence should do so not to the Court-Martial Appeal Court, but rather to the Court of Appeal, Criminal Division. I said that I would examine that suggestion.
1293 As I recall it, the noble Lord, Lord Shackleton, said he was anxious that I should not use whatever difficulties we discovered in Lord Dilhorne's Amendment proposals as an excuse to demolish his own proposals. Now he tables an Amendment which is exactly the same as the noble and learned Viscount's suggestion. I suppose I may take it that he has not so much abandoned his earlier proposal—indeed, he has said so—but rather is backing two horses each way, in the hope that one of them will arrive at the finishing post in some sort of condition—
§ LORD CARRINGTON
—and I understand that.
To take the Amendment he has put down for to-day, I would say that it goes much further than anything that has been put forward explicitly up to now. It would have the effect of transferring appeals by a civilian against conviction, as well as against sentence, to the jurisdiction of the Criminal Division of the Appeal Court. As the Courts-Martial Appeal Court already has jurisdiction to hear appeals by civilians against conviction, this would mean withdrawing that jurisdiction from the Courts-Martial Appeal Court. I must say that I see difficulties, both of principle and of practicability, in this new proposal, which of course would make a very much greater change in the present arrangements than would the original proposals of the noble Lord, Lord Shackleton.
I said last time that I was a little nervous about some of the effects of this change. One question was whether it would be fair to a Serviceman if a civilian with whom he had been jointly charged had an additional right of appeal against sentence after the Serviceman had exhausted his remedies by petitioning the Defence Council. This difficulty looms even larger in relation to the Amendment we are now considering. I really do doubt whether it would be right for two separate Appeal Courts to sit and consider the convictions of two men who had been involved in the same crime.
Your Lordships will see that in transferring appeals against conviction away from the Courts-Martial Appeal Court to the Criminal Division of the Court of 1294 Appeal the Amendment makes them subject to the provisions of the Criminal Appeals Act 1968. These provisions are geared to trial by jury—indeed, the first ground of appeal under that Act is that the verdict of the jury should be set aside on the ground that it is unsafe or unsatisfactory. There are no juries in courts-martial and no division of responsibility as to law and fact.
Similarly—and I mention this only to show the complexity of this matter—we could not properly take jurisdiction away from the Courts-Martial Appeal Court and leave the Courts-Martial (Appeals) Act as it now is. There is no reason to suppose that the present system of review and appeal under the Service Acts and the Courts-Martial Appeal Court is unsatisfactory in regard to appeals by civilians against convictions. Indeed, in the twenty years that the Court has been in existence only one civilian has carried his appeal to it. That was in 1960; and the appeal succeeded, not on the grounds of any irregularity in the trial, but because the Courts-Martial Appeal Court, on careful analysis, took the view that on the evidence the conviction was unsafe.
For all these reasons, I would ask the noble Lord not to persist in this Amendment. But I do of course stand by the earlier commitment I made to the noble Lord. I accept that civilians should have this additional right to appeal against sentence, but such appeals should, in my opinion, be to the court that Parliament has expressly set up to review courts-martial decisions. I also regret that I have not yet tabled an Amendment in your Lordships' House—and the noble Lord, Lord Shackleton, in a very good-humoured way, made a perfectly valid and fair point. I meant no discourtesy to the House, but the fact is that the matter is rather difficult and has proved to be technically more difficult than I had thought.
I also accept the fact that we have not had a very long interval between the Committee stage and Report stage. These are responsibilities of the Government, and although, of course, any member of the Government has a collective responsibility, some decisions are more collective than others; and I would say (since my noble friend the Chief Whip is not here) that for my part I think that this is one 1295 such case. I must apologise to the noble Lord if this matter has been hurried, but what I should like to do, if your Lordships will permit me, is to ensure that an Amendment is laid in another place which satisfies the original point made by the noble Lord, Lord Shackleton; and when we have our own Amendment ready for introduction I will gladly have a word with him and consult him about it.
§ LORD SHACKLETON
My Lords, I am grateful to the noble Lord. I think there was advantage in having the argument set forth with regard to my second Amendment, because the noble Lord was not in a position to deal with the point of the noble and learned Viscount, Lord Dilhorne, on the last occasion. We have now heard these arguments. I feel that I am getting slightly out of my depths on this subject, but the Cross-Benches are well filled in the legal sense at the moment, and therefore I will not seek to comment on some of the points made by the noble Lord, Lord Carrington, except to say this. The fact that there was only one appeal against conviction by a civilian to the Courts-Martial Appeal Court does not provide to me satisfactory statistical evidence that the review of sentences with regard to civilians was satisfactorily carried out. I gave details of a particular case which caused me great concern at the time and in which, even now, I do not know whether we arrived at the right sentence.
However, the noble Lord has given a positive assurance. I am grateful to him for saying that he will consult me on the Amendment. I am content to leave it to him, because if he succeeds in moving it into the Bill in another place it will in due course come back to us here and we shall have another opportunity to look at this point. In those circumstances, I ask for the leave of the House to withdraw my Amendment.
§ LORD CHORLEY
My Lords, before the noble Lord withdraws, may I make this remark? It occurred to me that two or three years ago an article about this subject of civilians under courts-martial, by Professor Borrie of the University of Birmingham Law School, appeared in the Modern Law Review, and it showed that there are certainly a number of real com 1296 plaints. I wonder whether the noble Lord, Lord Carrington, and his advisers have had the opportunity of studying this article, because I think it would be of some value to them.
While I am on my feet I might perhaps say one other thing. The point that when a civilian and a soldier are jointly charged the civilian is given greater rights than the soldier is not, I think, a very sound one. After all, a man who joins the Armed Forces knows perfectly well that he is coming under a system of military law, and he enters the Service on that basis—that his rights under the ordinary Common Law are to a large extent sacrificed. The civilian who is involved in this connection knows nothing of the kind, and on the face of it it seems altogether wrong that he should find himself deprived of the rights he would have under the ordinary law of the land.
§ LORD CARRINGTON
My Lords, I am much obliged to the noble Lord, Lord Charley. I will certainly look at this article. I am afraid that he has different tastes in bedside reading from mine, and I did not know that this article existed. But I will certainly look it up and benefit from it.
§ LORD SHACKLETON
My Lords, I do not want to be asked again not to withdraw my Amendment. I fully accept that the noble Lord had a point to make, and it is always difficult to judge when a discussion is finished, but I do now ask leave of the House to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 3.38 p.m.
LORD BROCKWAY moved Amendment No. 2A:
After Clause 61, insert the following new clause:—
. Sub-paragraph 10(a) of Schedule 3 to the Parliamentary Commissioner Act 1967 (which provides that certain action taken in respect of appointments or removals, pay, discipline, superannuation or other personnel matters in relation to service in the armed forces are matters not subject to investigation by the Parliamentary Commissioner) is hereby repealed.
§ The noble Lord said: My Lords, I beg leave to move the manuscript Amendment No. 2A. I want sincerely to apologise for moving this Amendment in manuscript form. It arose from the fact that my Amendments were drafted by a legal friend, and in this Amendment he referred 1297 only to the Act of 1967 without giving its name, which naturally puzzled the Clerks to the House. It was only late last night that, thanks to their assistance and the asistance of the Ministry, we were able to identify the Act as the Parliamentary Commissioner Act, and that is the reason why I am now moving the Amendment in manuscript form rather than having it on the Order Paper.
§ The purpose of the Amendment is quite simple. It is to place the men who are in the Armed Forces in the same position as civilians, with the right, through a Member of Parliament, to appeal to the Parliamentary Commissioner when they think they have a genuine grievance. It will be accepted that the distinction between the Armed Forces and civilian life is now becoming less marked and that we are seeking to secure for the men who are in the Forces the same rights which generally apply to civilians. There used to be a very distinct demarcation. The man in the Armed Forces had to obey orders, had to obey commands; and if he disobeyed those commands he was subject to court-martial and to punishment. The Nuremberg trial destroyed that distinction. The Nuremberg trial laid it down that if a man in the Forces commits an inhuman act, even if that act has been ordered by his superiors, he can still be regarded as guilty, and a trial is now proceeding in America (to which I will not refer further) which raises this same issue.
§ The purpose of this Amendment is to say that just as a civilian, over the very broad field of legislation which has now been carried by the two Houses of Parliament, has the right, if he feels there is a grievance, to appeal through his Member of Parliament to the Parliamentary Commissioner, that right should also be attached to members of the Forces. That is the purpose of the Amendment. I shall be moving a second Amendment which will refer particularly to boy soldiers, but if there is a case for saying that the adult who joins the Armed Forces shall have this right, that argument is still stronger for boys who are taken into the Forces at only 15 years of age. I beg to move.
§ LORD BEAUMONT OF WHITLEY
My Lords, I should like to support this Amendment in theory, though I am a little surprised that the noble Lord, Lord 1298 Brockway, did not come and support me when I put down a practically identical Amendment at Committee stage.
§ LORD BEAUMONT OF WHITLEY
It was discussed at Committee stage and, as the House will know, I entirely agree that the Armed Forces should become subject either to the Parliamentary Commissioner or to a special Parliamentary Commissioner for the Forces, which I think is possibly the better solution. On the Committee stage I had the assurance of the noble Lord, Lord Carrington, that this matter was being looked at by the Government, and probably we cannot go further with it to-day.
§ LORD CARRINGTON
My Lords, the noble Lord, Lord Brockway, has no reason to apologise for having put down the manuscript Amendment, because I know he had originally put down another Amendment which was a little obscure but which had the same effect. The present Amendment goes a good deal further than that moved by the noble Lord, Lord 13eaumont, on the Committee stage. I need not go into the arguments all over again, and I am sure the noble Lord, although he was not able to be here at the Committee stage, has read what I said then about the Amendment moved by Lord Beaumont. The present Amendment goes much wider, in that it brings in such matters as discipline, and of course the Parliamentary Commissioner is concerned only with maladministration, so I do not think this Amendment would do in any case. But may I remind the noble Lord of what I said on the Committee stage to the noble Lord, Lord Beaumont? I think it will make the point clearer. I said then that the Select Committee of another place has reported on this matter and the Government are considering that report, but I am not yet in a position to make a statement about it. In that event I do not think it would be appropriate to put it in this Bill.
§ LORD BROCKWAY
My Lords, while thanking the Minister, may I ask him one question? In answer to a previous Amendment he has said that there will be consideration in another place; can he give the same promise in respect of this issue?
§ LORD CARRINGTON
My Lords, the noble Lord has misunderstood me. What I said was that the Government were examining the Report of the Select Committee, and that Committee made some recommendations about an extension of the powers of the Parliamentary Commissioner. That is what I said the Government were examining.
§ Amendment, by leave, withdrawn.
§ 3.48 p.m.
LORD BROCKWAY moved Amendment No. 3:
After Clause 62, insert the following new clause:
. The following subsection shall be inserted after section 2(5) of the Army Act 1955 and section 2(5) of the Air Force Act 1955:—
(6) Where a person below the appropriate minimum age has been entered for service in accordance with this section he shall, on attaining that age become entitled to claim to determine his full time service at any time before the expiration of a period of three months beginning with his so attaining that age and any such claim shall be made in accordance with regulations made under section 2 of the Armed Forces Act 1966.
§ The noble Lord said: My Lords, this is a reference particularly to boy soldiers. Later we shall be having a debate on the Report by the noble Lord, Lord Donaldson, and therefore I do not wish to enter into the issue in detail. However, I think we should be in error if we allowed this Bill to pass without seeking to amend it in a way that will not prejudice further decisions arising from the Donaldson Report. The purpose of the Amendment is again quite simple. We were all delighted to hear the noble Lord the Secretary of State say that Her Majesty's Government would accept the recommendation of the Donaldson Report by which boy soldiers, when they reach the age of 18, would have the right to decide that they should leave the Armed Forces at 21, and we welcome that. This Amendment suggests that the Government could go a little further. It proposes that these boys, when they reach the age of 18, should not have to wait three years before their discharge at 21, but should be able, within the first three months after attaining their adulthood, to seek—and indeed to receive—discharge.1300
§ These boys join often at fifteen years of age, it may be from unhappy family circumstances, it may be by the pressure of a father, it may be as a sense of release from an orphanage in which they have been kept. They joined the Armed Forces at fifteen and, under the old regulations unless they make an application within their first six months they had to remain in the Forces until they were thirty. Now at eighteen years of age they are to be allowed to make application to leave the Forces at twenty-one. My Lords, even so, it means that a boy of fifteen joining in that way may have to be six years in the Forces before he can be discharged, growing up, perhaps becoming engaged to be married, in all kinds of different circumstances. I submit to this House that it would be much more just if these boys, when they reach the age of manhood, could come to a decision which would not mean that they would have to wait for three years but that, if they did not desire to remain in the Forces as a career, should be able at eighteen years of age to leave. That is the purpose of the Amendment and I hope that it will be supported by your Lordships. I beg to move.
§ 3.50 p.m.
§ LORD BEAUMONT OF WHITLEY
My Lords, I rise to welcome this Amendment, without much hope, I am afraid, that it will get very much further. I welcome the Report of the Donaldson Committee. As I said when the Government made a Statement on that Report in your Lordships' House, I think it has made a considerable step forward. But I think it is right that this matter should be raised at this moment on this Bill, because I do not think that the Donaldson Committee went far enough—or perhaps it went as far as it could but the Government should go further. The Donaldson Committee actually recommended that at the age of eighteen apprentices should be able to opt to leave the Forces immediately, and that others should not be able to leave till three years later. The Government decided that this was an anomaly, which indeed it was, but instead of levelling down, which I said at the time I thought they should do, and saying that everyone should have the option to leave at 1301 eighteen, they levelled up so that everyone would be able to leave at twenty-one.
Both the recommendation of the Donaldson Committee and the decision of the Government were decisions of expediency. How can we see that the Forces are kept at the proper level while doing the best that we can for the people who want to get out? And I entirely accept that the Forces must be kept at a proper level. But I do not think that we have looked enough at the whole question of civil rights involved. As your Lordships will know, the National Council for Civil Liberties have just started, not a campaign, but a talking point about civil rights for children. Leaving aside the wilder remarks of those who have commented on it—there were not very many wild remarks from the National Council for Civil Liberties themselves—it is, I think, important that we should draw a fairly clear line as to when someone else is responsible for a child, when the Government are responsible for him, and when he becomes entirely responsible for himself. Now that we have taken a definite step forward and made the coming of age eighteen, I believe we should regard it very seriously indeed and say that in almost every field this is the moment when a person becomes responsible for his own future, whereas before he was not entirely so. I do not believe that this question of the right of a person to opt out at eighteen has yet been looked at closely enough.
If I am asked, as no doubt I shall be, how I would look after the level of recruitment for the Services, I should like, because I know this question will arise, to give my personal answer. Because civil rights are very important, I would have an incomes policy—which, of course, the Government would not have at any price—and within that incomes policy I would make the Services one of the very highest priorities, making them attractive to people coming in. That is why, unlike a number of noble Lords on this side of the House, I am not nearly as worried about Generals getting rises in pay as they appear to be. I think the Services need an even better deal than they have at the moment and should be given the highest priority. I mention that point because this question of recruitment is a counter-argument; I 1302 think the Services should have very high priority.
I believe that on coming of age a person who has entered into an engagement while he was not of age should be allowed to leave. This is a question of basic rights, and I am quite certain that we shall get round to it in time. I hope the Government will look at this matter again, if not to-day at least over the next year or two.
§ LORD CARRINGTON
My Lords, the noble Lord, Lord Brockway, is trying it on, and he knows that I know that he is trying it on. He is perfectly entitled to do so, perfectly entitled to raise this matter on this Bill, but I would remind him of this. The Government of noble Lords opposite appointed the Committee under the noble Lord, Lord Donaldson, to inquire into this, and they reported not so long ago. One of the things that they expressly reported on was the suggestion which is contained in the noble Lord's Amendment, and they rejected it specifically. They said:We thought that the costs in men and money of introducing this system across the board was so high that it was incumbent upon us to think again.The Committee, which was a very high-powered one, went into the whole question of boys' engagements very thoroughly, and I think the House will and should accept that their views carry great authority. They took enormous trouble. The Government examined their Report and I announced that with one comparatively minor Amendment we accepted the recommendations of this Committee. I announced it to your Lordships' House three weeks ago. I do not believe that the noble Lord, Lord Brockway, or even the ingenious noble Lord, Lord Beaumont—who brought an incomes policy into an Amendment on boys' service—or indeed the House, would expect the Government to upset a decision taken only three weeks ago. I hope that the noble Lord will withdraw his Amendment and comfort himself with the thought that he has an Unstarred Question down on this matter after the Christmas Recess and can have another go.
§ LORD BROCKWAY
My Lords, it is that thought that influences me now. In view of the fact that we shall be having a debate on the Donaldson Report in the 1303 New Year, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 66 [Complaints by persons subject to Naval Discipline Act 1957]:
LORD CARRINGTON moved Amendment No. 4:
Page 54, line 17, at end insert—
( ) Section 181 of the Army Act 1955 and section 181 of the Air Force Act 1955 (complaints by warrant officers and below) shall each be amended as follows—
§ The noble Lord said: My Lords, your Lordships will remember that at the Committee stage I gave notice of my intention to put down an Amendment which would give soldiers and airmen a statutory right to take complaints to the Defence Council. At present only ratings of the Royal Navy have such a right, though airmen have in fact been permitted for some years by Queen's Regulations to pursue their complaints to the Council. The right of officers to complain to Her Majesty is established by Clause 66, which your Lordships have approved, and the further Amendment I have now moved will bring the Services completely into line. I beg to move.
§ On Question, Amendment agreed to.
§ Then, Standing Order No. 42 having been suspended (pursuant to the Resoluion of December 10):
§ 4.0 p.m.
§ LORD CARRINGTON
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the 1304 purport of the Armed Forces Bill, has consented to place her interest so far as it is concerned on behalf of the Crown at the disposal of Parliament for the purposes of the Bill.
My Lords, I beg to move that the Bill be now read a third time and in doing so I would say just a few words more. This is a long and complicated Bill, and it does four main things. First, it renews the Army and Air Force Acts. Second, it seeks to place the Naval Discipline Act upon the same constitutional basis as the other two Acts, the Army Act 1955 and the Air Force Act 1955. Thirdly, it enacts for the first time a common code of offences and punishment which will apply to all Servicemen under any of the Acts. Fourthly, it makes a number of valuable changes in the procedural parts of the Acts, all of which have the effect of bringing them some-what closer together in various respects.
I am sure that this Bill is a good Bill and will be of benefit to the Services. I should like to add that I have been most appreciative of the constructive interest which so many of your Lordships have shown during the passage of the Bill. I think it represents a substantial step forward in bringing closer together the Statutes governing the Services, and I commend it to your Lordships. I beg to move that the Bill be now read a third time.
§ Moved, That the Bill be now read 3a.—(Lord Carrington.)
§ LORD WINTERBOTTOM
My Lords, before we send this Bill to another place I should like to make one or two short points. When the Secretary of State started his speech he seemed to feel it necessary to justify the fact that the Bill started in this House. I, for one, felt that this was the correct place for it to start, having regard to the position of the Secretary of State as a Member of this House, and I think that the discussion that we have had here has been extremely useful. The Bill is not controversial, but it affects the rights of hundreds of thousands of our fellow citizens. I am certain that the administration of justice within the Armed Forces, which is of a very high standard, will nevertheless benefit from this Bill. I am sure that the House will agree with me in saying that the clarity with which the Secretary of State has put forward the various points of 1305 view of the Government and the courtesy with which he has treated certain Amendments are appreciated by us all.
§ LORD BEAUMONT OF WHITLEY
My Lords, at a previous stage the Secretary of State most handsomely apologised for the speed with which the Bill has had to proceed through your Lordships' House. We all accept the difficulties, but I suspect that at the beginning of the production of the Bill, in addition to the pressures from the Commons there was a certain lack of realisation of the important issues involved and the interest that the Bill would raise in your Lordships' House, as indeed elsewhere. I should like to make it clear that in spite of the fact that I have put down several Amendments and obviously am not entirely happy that they have all been rejected, I think that the Bill is an extremely good one. I feel very strongly that, with the possible exception of boy Servicemen, the whole area of the rights of Servicemen is extremely well guarded by the present authorities, and that immense trouble is taken to see that injustice does not occur. But it is absolutely right that both your Lordships' House and another place should keep constantly under review this rather difficult area of where Servicemen's rights and civil rights meet. So long as we keep that subject under review and go on looking at it from time to time, I do not think that we shall come to very much harm.
§ On Question, Bill read 3a, and passed, and sent to the Commons.