HL Deb 12 November 1970 vol 312 cc804-27

3.22 p.m.


My Lords, I beg to move that this Bill be now read a second time. Before turning to the contents of the Bill, I think I should deal with the point which was raised by the noble Lord, Lord Shinwell, on Tuesday; namely, whether it was proper to introduce this Bill in this House. Your Lordships may remember that the Army and Air Force Acts were for many years intimately connected with the grant of supplies for the Services of the Crown. This is no longer so. I will not trouble your Lordships with the full details, which are set out at length in pages 768 to 769 of the 17th edition of Erskine May. The present Bill deals solely with the discipline of the Armed Forces.

A brief summary of the provisions of the Bill will make it plain to your Lordships that it has nothing to do with Supply. Part I continues the Army Act and the Air Force Act and reduces the Naval Discipline Act to the same renewable status: Part II goes through the offences and punishment provisions of each Act and secures uniformity; while Part III amends procedural provisions. Part IV gives to the Navy the general Army and Air Force code about deductions from pay, and then extends that code for all three Services so as to allow deductions to enforce judgment debts. Part V contains a number of miscellaneous amendments.

There is no money in this Bill, and I am told that the authorities in another place have no objection, on the ground of financial privilege, to its introduction into this House. I hope, therefore, that your Lordships will agree that there is no objection on general constitutional grounds to the introduction of this Bill into this House.

Since 1954 the quinquennial Bills have originated in the other place, and in that year a Select Committee of that House on the Army and Air Force Act—on which the noble Lord, Lord Wigg, sat—recommended that a Standing Order should be adopted, providing for the committal of the Bills which would have to be introduced on the final expiry of the Army and Air Force Acts 1955 to a Select Committee immediately after Second Reading. On March 17, 1955, during the passage of the Army and Air Force Bills, the then Leader of the House, Mr. Crookshank, made a statement that the Government agreed that the five-yearly Bills should be committed to a Select Committee, but that this should not be done by means of a Standing Order. The introduction of the present Bill into this House in no way prevents Members in another place from adopting their customary procedure, and it is the Government's intention that the Bill shall be referred to a Select Committee if that House so decides.

Since 1955 the Bill has been eligible for introduction in either House of Parliament, and I hope, therefore, that I have said enough to show your Lordships that the introduction of the Bill into this House in no way affects the control of the other House over the Forces and that it has not been done with a sinister motive, but only in the interests of the sensible programming of the business of both Houses.


My Lords, since I am not going to take part in the debate, perhaps this will be a convenient moment to ask the noble Lord one question. First of all, I should like to say that I entirely acquit him of any sinister motive. We all know the efforts that Government Chief Whips and others make in trying to get Bills before another place—and they do not always get the best buy. It is, of course, for another place to assert its rights but, equally, I am sure the noble Lord will agree that we in this House would not wish in any way, even inadvertently, to transcend or take away from the rights of another place. But if I understood the noble Lord correctly, he said that there is no constitutional objection. My noble friend Lord Shinwell will be speaking later and may wish to raise further points on this aspect. I would only suggest that it would have been wiser for the Government—and I hope there will be another Government before the next Bill—to arrange for this Bill to come to us after it had been through a Select Committee in another place. But I have such sympathy for the Government Chief Whip that I will not press him further on that at this moment.


My Lords, before the noble Lord, Lord Carrington, replies to that, may I commend him for the way in which the Government are introducing more Bills into this House at an early stage? This is something for which we have always asked, and it is much more sensible from a workload point of view.


My Lords, I am much obliged to the noble Lord, the Leader of the Liberal Party. But I must honestly tell him that he must give credit to the Chief Whip and to the Leader of the House and not to me, because I am not at all sure that I would have pressed very hard for the introduction of this particular Bill into your Lordships' House. But I can confirm that the Government have gone into this very carefully, and there really is no suggestion that we are in any way seeking to take away or transcend any powers of another place. Certainly that is not the intention. I agree with the noble Lord, Lord Shackle-ton, and I think it is open to query whether or not, as there is a Select Committee, it is better to introduce the Bill there. But there are also the considerations which the noble Lord, Lord Byers, has mentioned, and I think that they balance each other out fairly evenly. Now that we have disposed of that point in a most amicable fashion, may I turn to the provisions of the Bill?

In their Report in 1966, the Select Committee expressed their confidence that the next Armed Forces Bill would make further progress in simplifying and standardising Service law. They concluded that reform on these lines should be implemented as quickly as possible where-ever it could be clearly shown that diversity of practice was a barrier to general and administrative efficiency. They did, however, specifically recognise that regard would have to be paid to inherited traditions and differences which did not impair efficiency. The review which the 1966 Select Committee recommended should take place was set in train within the Ministry of Defence. Representatives of all three Services, the Judge Advocate of the Fleet and the Judge Advocate General of the Forces took part in it. I believe that it will be apparent that we have attached due weight to the views expressed by the Select Committee.

We have achieved a single common code of offences and their related maximum punishments, as I shall explain more fully later on, but we have not sought in this Bill, and we do not in any case think that it would be desirable, to seek to make fundamental changes in the framework of the existing systems for administering the disciplinary code in the Army and R.A.F.—systems which are virtually identical—and in the Naval system.

I think it will be accepted by everybody who knows this subject that the system of administering justice in the Royal Navy has stood the test of time, is well understood by all in the Navy, and, most important of all, meets seafaring operating requirements by being both swift and economical. I am glad to say that there have been very few criticisms of Naval justice, either from within the Service or from the Judges. The Army and R.A.F. system is no less suited to the environment in which these Services live and operate, and it is equally well understood and accepted by their personnel. We must never lose sight of the fact that the disciplinary systems of the Services must be grounded in the operational and environmental needs of each particular Service.

So far as the Royal Navy is concerned, it is self-evident that forces afloat must have some means of dealing quickly with breaches of discipline. It is therefore, in our judgment, still right that there should continue to be two disciplinary systems: that of the Army and Royal Air Force, which gives the commanding officers a relatively modest power of punishment, and that of the Royal Navy, which gives commanding officers greater powers of punishment. Both systems contain elaborate provisions to protect the individual Serviceman, with arrangements for appeals, reviews, and complaints by any man who feels he has suffered any kind of grievance. We are satisfied that these arrangements, which have stood the test of time, are still effective and fair to all concerned. There will, I think, be a very wide measure of satisfaction in the Services that they will not have to cope with unsettling wholesale changes in their disciplinary systems at a time when so much else is changing in the Service way of life.

We have also considered whether the three Acts should be combined into a single Act. We found that the advantages of a single Act were much less than might at first sight be supposed, and that on balance its disadvantages were likely to be more numerous. First, a single Act would be a good deal longer than any of the present Acts. Secondly, and of great importance to the Forces on the ground, it would be not only longer but more complicated and more difficult to use in practice than the present single-Service Statutes. I am sure your Lordships will agree that we do not wish to enact legislation in a form which imposes an additional and unnecessary administrative burden on commanders in the field, possibly engaged in action or serving in an arduous peace-keeping role. For all those reasons we have decided not to seek to combine the three discipline Acts into one Act. We propose, instead, to leave the three Acts in being, making such adaptations of them as are necessary for the enactment of a common code of offences and punishments; and this is the purpose of the present Bill. Perhaps I may mention at this stage that after this debate I shall seek your Lordships' approval of the Army and Air Force Act 1955 (Continuation) Orders extending those Acts until the end of 1971, which I hope your Lordships will in the circumstances be ready to approve without much debate.

My Lords, I turn now to the Bill itself. I do not propose to take the House through it, because there is already a very full Explanatory Memorandum, but I think it right to mention some of the more important elements of the Bill. Clause 1 is of constitutional and historical importance. Both the Army Act and the Air Force Act were annual Statutes until 1955. Only then did they become quinquennial Acts subject to annual renewal by Order in Council after Affirmative Resolution in both Houses up to a maximum of five years. The Bill of Rights in 1688 laid down that no standing Army should be maintained in peace time without the consent of Parliament, and the acceptance of this principle came after a century of turmoil at the end of which Parliament reasserted its claim to control the Army. However, the various Statutes governing the Royal Navy were never subjected to the same arrangement, and so the Naval Discipline Act of 1957 is a permanent Statute.

We have examined this position in the light of the 1966 Select Committee's recommendation that the aim should be to standardise the Statutes of the three Services, and there is certainly a case, I think, for taking the view that the original reasons for placing the Army and the Air Force Acts on this special footing are now quite spent. On the other hand, no one who reads the considerations which were in the minds of the 1954 Select Committee will doubt that it was thought then, and I have no doubt it will be thought now, that it is important to have a full Parliamentary scrutiny every five years of the exercise and extent of the special jurisdiction entrusted to the Services by Statute. We have therefore come to the view that the better course would be to make the Naval Discipline Act a quinquennial Act along with the other two Statutes. The change we are making is, of course, a break from long Naval tradition, but I do not think it needs reassurance from me that it denotes no suspicion of what the Royal Navy is about.

I turn now to Part II—that is, Clauses 2 to 43—which is in a sense the most important part of the Bill. These clauses seek to enact a truly common and unifica scheme of offences and related maximum punishments which will apply to all members of the Armed Forces. Hitherto there have been two codes; that of the Royal Navy and that of the Army and Royal Air Force, while the Royal Marines who serve under the Army Act also serve under the Naval Discipline Act when afloat as members of a ship's company. In general, the common scheme of offences and punishments creates no new offences, and, indeed, some specific offences are abolished. Some offences which now exist in either the Naval Discipline Act or in the Army and Air Force Acts are extended to all three, but this is an inevitable consequence of an amalgamation of two separate codes which is, in a sense, a process of give and take. Thus, for example, prize offences are imported into the Army and Air Force Acts by Clause 3 of the Bill: hitherto they appeared only in the Naval Discipline Act and are unlikely ever to be used by the other two Services. Some actions which are now offences against particular provisions of an Act will become chargeable under other provisions.

Naturally, in arriving at this common scheme a good many changes have been made. For example, the common scheme of punishments provides for a single maximum penalty for all offences. This is the position now in the Naval Discipline Act, but at present certain offences under the Army and Air Force Acts carry a higher maximum penalty when committed on active service and a lower penalty at other times. In present-day conditions there are situations in which the existence or otherwise of active service, as defined in the Army and Air Force Acts, is quite inappropriate for determining whether or not the level of responsibility merits consideration of a higher or lower maximum punishment. Flying aircraft, sometimes with large numbers of crew and passengers aboard, is one obvious example. The patrols of the Polaris submarine force is another.

Moreover, there may well be good reasons for not deeming quite onerous operational duties to be on active service. We propose, for this reason, and because of the need for commonality, that these offences should now carry only the higher maximum, as in the Navy. Although the effect of this change is that Army and R.A.F. personnel will be liable to greater punishments for those offences which were previously more severely dealt with only on active service, the practical effects will not be significant. Only three offences are involved, and in peace time these would normally be handled either summarily or by district court-martial, both of which are subject to their own limitations on their maximum powers of punishment: for example, a district court-martial cannot give more than two years.

The higher civil courts, when passing sentence on an offender for more than one offence, have power to direct whether sentences of imprisonment imposed on the different counts shall run concurrently or consecutively. The power to order that the sentences shall run consecutively is commonly invoked when the offender has been convicted of a series of offences the maximum statutory punishment for any one of which is limited. Courts-martial at present lack the power to order that sentences of imprisonment shall run consecutively, and, in consequence, a man found guilty by, for example, a general court-martial of a number of offences, each carrying a maximum of two years' imprisonment, could not be sentenced effectively to more than two years' imprisonment in all. Clause 39 brings the powers of Naval courts-martial and Army and Air Force general or field general courts-martial into conformity with those of civil courts in this respect by enabling them, when dealing with a series of civil offences, to order in appropriate cases that the sentences shall run consecutively. The power does not, however, extend to a series of service offences.

Noble Lords will note that it is proposed to re-enact the death penalty for a range of military offences. I recognise that some noble Lords will query this provision. There are, however, two particular considerations that I would put before your Lordships. The first of these concerns offences relating to acts com- mitted by Service men in the presence of the enemy or on the battlefield. We have not sought to re-enact the present provision in the Service discipline Acts which makes mutiny with violence or threat of violence a capital offence at any time. The military offences which we propose should continue to carry the death sentence as an optional, not mandatory, sentence are mutiny or incitement to mutiny on active service and the following offences when committed with intent to assist the enemy: misconduct in action; assisting the enemy; obstructing operations; and failure to suppress a mutiny. There is in addition an offence of spying for the enemy on board Her Majesty's ships and naval establishments abroad. All those Service offences for which I propose that the death penalty should be retained are thus those which will directly or indirectly assist the enemy. I am sure that the deterrent of the possibility of the death penalty must continue to apply when, in the most extreme of situations, a Serviceman faces the temptation to indulge in treacherous acts which are likely to endanger the lives of his comrades-in-arms, or lead to their defeat at the hands of the country's enemies.

The second consideration is this. Since 1939—that is, throughout the whole of the last war and since—four men have been executed under the provisions of the Service discipline Acts for convictions other than for murder which is of course a civil offence and one which no longer carries the death penalty even under the Service discipline Acts. Three men were executed after conviction for mutiny in 1942 and one convicted for the civil offence of treason committed in the course of the war was executed in 1946. No execution for any military offence has taken place since that date.

My Lords, I turn now to Part III of the Bill; that is, Clauses 44 to 57. I have already explained that it is not the purpose of this Bill to make important changes in the separate disciplinary systems which are at present in force in the Services. We have however used this Bill to make a number of minor adjustments which have been found necessary for operational reasons or which take account of various developments which affect the Service discipline Acts. None of the changes has the effect of widening the gaps between the two disciplinary systems and we have in fact in a number of places taken the opportunity to move them somewhat closer together. Many of these clauses are very technical but I will pick out a few of the more interesting ones.

Clause 45 provides, with one exception, that the consent of the Attorney General or the Director of Public Prosecutions shall not be required in connection with proceedings under the Service discipline Acts when the charge is a civil offence. It has been decided to include this following a decision by your Lordships' House to quash the conviction of a naval rating by court-martial because the naval authorities had not sought the consent of the Director of Public Prosecutions. The House held that this was required under the Sexual Offences Act 1967, even though it was not I think Parliament's intention that that Act should lay this obligation upon the military authorities. It will, I believe, be generally accepted that a civil authority, even an eminent one, should not have to be involved at this point in the military disciplinary system. There must of course be checks by the courts upon the operation of Service law, but I think the proper check lies in what Parliament has provided in the Courts-Martial Appeal Court.

Clause 55 relates to the position when a deserter is brought before a magistrates' court, when apprehended by the civil or military police. Noble Lords may recall that some years go there was an unfortunate case involving a private soldier who was brought before a magistrates' court as a suspected deserter. He convinced the justices that he should be released, but he was subsequently arrested again by the military police under the normal power of arrest given in the Army Act and charged by the military authorities. At the time there was criticism that, following the second arrest, the soldier in question was not brought again before a civil court. Administrative instructions were issued to ensure that a similar situation should not arise. We now propose to embody this in this legislation.

My Lords, whereas most of the provisions of Part IV of the Bill do not involve our taking new powers, Clauses 58 and 60 redeem a promise made in another place during the committee stage of the Administration of Justice Bill that this Bill would enable judgment debts to be enforced by recovery from Servicemen's pay.

Clause 71 (in Part V) seeks to close a lacuna in jurisdiction which we have discovered. At present, some civilian passengers on board an aircraft of the Army or Royal Air Force come under no court jurisdiction when outside British airspace. Because the aircraft is not a civil registered aircraft, the appropriate civil legislation does not cover them and neither are they subject to the provisions of the Army or Air Force Acts. Noble Lords will readily appreciate, particularly at the present time, that it is necessary to remedy that. This we have attended to.

My Lords, I have run through the provisions fairly briefly; but we shall have another opportunity on the Committee stage to discuss them in detail and more fully. I hope that from what I have said your Lordships will agree that this Bill is a useful step forward in unifying the scheme of offences. The Bill also contains other important amendments to the Acts, some of which themselves make significant steps towards rationalisation. I can confidently recommend your Lordships to support the Second Reading of this Bill. I beg to move.

Moved, That the Bill be now read 2a.—(Lord Cairington.)

3.47 p.m.


My Lords, I can only concur with my noble Leader when he expressed the opinion that the introduction of this Bill to your Lordships' House raises no constitutional problems. In fact, I personally welcome it. Although complex, it is an extremely interesting measure and one which is worthy of your Lordships' attention.

Before I go on to make my own contribution to the debate I should like to make one point to the noble Lord, the Secretary of State, about the Committee stage of the; Bill. He has told us that it will go before a Select Committee where it will receive very detailed scrutiny. In the case of the 1966 Bill there were, I think, eight sessions of the Select Committee. This much larger piece of legislation may spend an even longer time before the Select Committee of the Commons, but I hope that that will not diminish the importance of the Committee stage in this House. This House has great expertise in this matter, and direct experience of the problems of courts-martial is something of great value when considering this Bill. I hope, therefore, that your Lordships will not feel inhibited from giving this Bill a thorough scrutiny during the Committee stage. I think you will be able to illuminate certain pathways which another place may be able to explore during the proceedings in the Select Committee. I should also like, before coming to the Bill itself, to thank the Secretary of State and his Department for the guidance they have given me in preparing myself for this debate.

My Lords, the Bill, of course, is not something dreamt up out of empty space but is the result of undertakings given to the Select Committee in 1966, and it has been worked on for, I think, at least two years by a cell within the Ministry of Defence. It is carrying on a process of harmonisation of the disciplinary systems of the three Armed Services, and in addition it is carrying into law certain undertakings given on various other occasions—such as those given to the Latey Committee or subsequently when that Committee's Report was discussed here and in the other place. This process is, I think, the result of the evolution of the Armed Forces as they are to-day. It is a recognition of the fact that the Forces are no longer sailors, soldiers and airmen, but that each Arm has its own air force, its own navy and its own infantry. We are very triphibious these days. War-like operations take place without a declaration of war. To-day the Service man is less and less a member of a military class set apart from society as a whole; he is a specialist within society doing a job for which he is trained.

Another problem we have to face—perhaps not a problem but a fact—is that in peace time, members of our Armed Forces are stationed on foreign territory instead of being stationed at home or within the Commonwealth; and therefore the Bill recognises the need to harmonise discipline and the administration of the three Services; the need to link military law more closely with civilian law and the need to mitigate where possible the impact of military activities on civilian life. For this reason, I welcome particu- larly Clause 21, which stiffens the penalties which may be imposed for low flying over the civilian community. During my period at the Ministry of Defence as Under-Secretary of State for the Air Force, this was one of my preoccupations, and I am glad that the disciplinary powers which have been given to the Heads of the three Armed Forces to control low flying and careless flying have been stiffened and increased. I think this is the main cause of irritation between the Armed Forces and the civil population, and therefore Clause 21 is of value.

As I have said, each of the Armed Forces has its own navy and air force, and I find Clause 19 interesting in so far as it extends to the 1955 Acts the offence of losing or hazarding one of Her Majesty's ships. This offence exists at present only in the 1957 Navy Act. One noticed with wry amusement the case of the unfortunate major who was recently court-martialled for hazarding his ship. He got into trouble with an L.C.T. in the Channel. This was, I believe, the first example of a soldier being charged with hazarding a ship, and a certain amount of professional advice had to be given by the Navy. That is the sort of thing that is happening as the Services become more and more integrated. Until now, my Lords, it has not been possible to charge a sailor with cowardice. Sailors were never cowards. Now, unfortunately, under this Bill they can be charged with cowardice.

Clause 3 refers to prize money. There are a whole series of measures which lay down punishment for someone who defrauds Her Majesty when collecting prize money. I assume that one can turn the argument the other way round, and that if you can be punished for defrauding Her Majesty when taking a prize, presumably you can take a prize and enjoy the benefits thereof. Now the Army has been brought into the ambit of prize money through the provisions in Clause 3. This may seem a little remote, but one of the benefits which the Royal Air Force enjoyed was a substantial prize fund which was won in the last war and paid in respect of submarines forced to the surface and captured intact. I hope that the Army will now be able to benefit from activities of this type and will not suffer the penalties of fraudulent conversion in respect of the prizes they win.

I must say, my Lords, that I feel a certain personal concern about the implications of Clause 6, which refers to looting. Many noble Lords might have run foul of the provisions in this clause had they existed at the time of the 1939–45 war. I seem to remember that in our passage through the Low Countries a certain volume of champagne was captured in Brussels by the Welsh Guards and was, of course, distributed as welfare—as a support to morale—to other members of the Division concerned. My own regiment had a very agreeable collection of German welfare stores. Perhaps the capture of enemy welfare stores is not included in the provisions of Clause 6.

As I mentioned earlier, the civilian law is brought closer in harmony with military law. I think that is right, as the soldier is becoming a specialised civilian serving the community as a whole. The Secretary of State has mentioned the modification of the law relating to the death penalty as stated in Clause 7, and one can only agree completely with this step. It is a wise provision. There are a whole number of clauses in which the two systems of law are brought closer together. For instance, speaking of Clause 17, the Explanatory Memorandum refers to offences of stealing, receiving, and fraudulently misapplying property. These are to be dealt with as civil offences and omitted from military law. Clause 18 refers to offences in billets. Clause 34 provides that no one may be punished more severely by a military court than by a civil court for the same offence. Clause 39 is a very important clause. The Explanatory Memorandum says that it enables any court-martial other than a district court-martial to award a sentence in respect of two or more civil offences which comprises terms of imprisonment equal to those which would be awarded by a civil court. This brings the powers of courts-martial in such circumstances into conformity with those of civil courts dealing with a like series of offences. That is an important amendment.

Part IV of the Bill deals with the forfeiture of pay and deductions from pay and is extremely important because it brings the military law into harmony with the Administration of Justice Act. I think that these are all very sensible measures for bringing the two systems of law into harmony. Like the Secretary of State, I commend the wisdom of Clause 55. All of us who were at the Ministry of Defence at the time will remember the unfortunate Parkes affair and we hope that we shall avoid that sort of thing by inserting this clause in the Bill. Clause 62 contains provisions which one can welcome relating to recommendations of the Latey Committee. Clause 71 refers to the very peculiar situation, which was mentioned by the Secretary of State, in which if a civil servant, shall we say, is travelling on a VC.10 over the North Atlantic he may commit almost any offence without any charge being brought against him, although his wife could be charged. It is a peculiar situation. This is part of the whole range of the Bill which covers a very wide field.

I feel that although able men have worked on it for two years, the expertise to be found in your Lordships' House and in the Select Committee in another place should be brought to bear upon the Bill because it is experience of actually administering military law which is important. Those who have served on a court-martial must realise the very difficult situation in which quite junior officers may find themselves when called upon to discharge their responsibilities. It would be of enormous value, and the Bill would be improved, if particular attention is paid to it during the Committee stage in this House and elsewhere. As the Secretary of State has said, this is a complicated Bill and a specialist Bill, but not an unimportant Bill. It is of great importance to some hundreds of thousands of our fellow citizens serving in the Armed Forces. While I completely support the Bill's intention, and also the Secretary of State in commending it to your Lordships, I feel that careful study of the Bill by your Lordships and by another place would be of value to everyone who has to administer it when it becomes law.

4.0 p.m.


My Lords, I agree with the noble Lord, Lord Winterbottom, that this is an important Bill. It is the first Bill for some time to deal with the whole question of the consolidation and review of Service law, and as such it touches on the whole problem of the Forces and civil liberties. I understand, from the slightly bellicose noises that have been proceeding behind me, that the noble Lord, Lord Shinwell, is not entirely satisfied about the constitutional position, and I look forward to listening with interest to what he has to say. The only thing I would say on the matter is that we should be careful, if we are not in any way trespassing on the privileges of another place, that we do not by disuse or over-courtesy in some way derogate from our privileges and rights. I should like to see a much bigger and more important debate than we look like having to-day. Though from time to time we discuss certain matters in this field (and I know that the noble Lord, Lord Gifford, is raising the question of the Visiting Services Act later on in this Session) I do not think that for some time we have considered the subject as a whole, and it is a subject that concerns the civil rights of a large number of people.

There are basically two questions to be held in mind: one is the special needs of the Services, because of the special place they have in the State; the second is the necessity for insuring so far as posible that no person is in any way robbed of the civil rights he has as an ordinary citizen of this country. Some interesting experiments have been made over the last few years, not least in the German Army, which I should very much like to see discussed once more, though I would make it clear that in saying that I do not make any criticism against the present system. What I should like is to have this Bill looked at more carefully in Committee stage, in the kind of way your Lordships' House does so extremely well. I hope that we shall be given some time to look at the Bill in detail before we get to the Committee stage. The period between the publication of the Bill to the Second Reading has been remarkably short, and I hope that we shall be given a little longer before the Committee stage. One of the people I have consulted on this matter reckons that it would take about a fortnight for a couple of researchers to get down to all the problems which are raised.

I will only mention three points which I shall probably wish to raise at Committee stage. The first is the question of an Ombudsman for the Forces. The second is on Clauses 29 to 31 of the Bill, which would do away with that delightful old formulation, scandalous conduct unbecoming to the character of an officer and a gentleman. It would also do away with cashiering. I am not at all clear what exactly is the difference between cashiering and discharging. Cashiering does not seem to be too serious. Colonel Gold was cashiered and he seems to have thriven on it considerably. Then there is the provision in Clause 31 under which someone can be charged with disgraceful conduct of a cruel, indecent or unnatural kind. I should like some information about how that is going to be used in practice. How often have people been charged in the last few years and what was the actual nature of their offences? Because this brings into question the whole problem of whether we are entitled in any way to discipline people in the Armed Forces for things not strictly of a military nature and not against the civil law. I hope that we shall get more detailed information on this point, not now, but before Committee stage.

Thirdly, there is this matter of Clause 45 and permission from the Director of Public Prosecutions. Obviously, this has come about by mistake, but it seems to me to be rather a happy mistake and we should look at it carefully before we do away with it. I have mentioned just three of the points that I hope we shall discuss when we look at the Bill carefully in detail, as the noble Lord, Lord Winterbottom, suggests. But I want to make it clear that I think the Bill is an extremely good piece of work. It progresses in a forward manner in a large number of places. I very much welcome it and certainly commend it to your Lordships.

4.8 p.m.


My Lords, the noble Lord, Lord Beaumont of Whitley, suspected that, seated behind him, I was expressing my dissatisfaction with this Bill. I assure him that he is quite mistaken. He must not blame me; it must have been the microphones, because I was only indulging in a few words with my noble friend Lord Williamson behind me. I hope that that relieves the noble Lord's mind.

Let me say this without further ado. The noble Lord, Lord Carrington, can not be accused of being actuated by either sinister designs or criminal intent in bringing this Bill before your Lordships' House—not at all. I certainly do not express any dissatisfaction at its being introduced into this Assembly. Nevertheless, I venture to ask a question which has not yet been answered. The noble Lord, Lord Carrington, spoke about our constitutional rights and I offer no objection to that, but I would still ask this question, which is very important: why is this Bill introduced in your Lordships' House? This is the question the noble Lord did not answer. There is no precedent for introducing a Bill of this character in your Lordships' House. Would the noble Lord challenge that statement?

My only justification for intervening is that I became familiar with the subject as far back as 1929, when I was Financial Secretary to the War Office—quite a long time ago—and I have been made familiar with it over and over again as Secretary of State for War and Minister of Defence. I recall the colourful debates we had on the subject and the criticisms which were made. I refer your Lordships to Volume 538, col. 1460, of Hansard of the House of Commons. What is it all about, anyway? It is a principle embodied in the Bill, which cannot possibly be ignored in a matter concerning our Armed Forces, and that is the principle of discipline. I suspect from what I have just heard that the noble Lord, Lord Beaumont of Whitley, does not care much for the harsh discipline which concerns our Armed Forces. Well, you cannot have a free-for-all in the Armed Forces. This principle of discipline in the Armed Forces has been debated over and over again in the other place, in the Press of the country and on the public platform, but nobody has ever suggested that we can administer the Armed Forces of cur country without a measure of discipline. As I say, you cannot have a free-for-all.

Of course, it may be argued that some items of discipline are too harsh. When the noble Lord, Lord Carrington, referred to the reason for telescoping that section of the Bill which relates to Naval discipline with the discipline in the Army and the Air Force, he reminded me of the discussions that we had in the other place on this very point. It was always maintained—and I think with justification—that Naval discipline was much harsher than Army and Air Force discipline. That matter has been argued out frequently. But eventually in the other place we came to the conclusion that it depended largely on the final decision of the head of the Armed Forces—because every sentence can come before the Minister of Defence now, as previously before the political heads of the three Forces, for confirmation. That is the right of appeal. Therefore on many occasions discipline imposed by way of sentence on those who were alleged to be guilty of indiscipline has been revoked or modified.

I am concerned only about the question of discipline, and say at once, irrespective of some minor amendments which concern sentences regarded as unduly harsh, that I would not oppose the general principle embodied in the Bill. But I return to my original question. I asked for clarification the other day and, if I may indulge in a little egotism, it was wise on my part to do so, because the researches which the noble Lord, Lord Carrington, and his noble friend Lord Jellicoe have carried out have illumined their minds on the subject. It was obvious the other day that the noble Earl, Lord Jellicoe, knew very little about it; and I have a suspicion that even the Secretary of State for Defence, the noble Lord, Lord Carrington, knew little about it before he received the brief which has been delivered this afternoon. I see that the noble Lord dissents from that. But I know all about this sort of thing, It happens that I know what goes on inside.


If the noble Lord knows all about it, then it seems strange that when he intervened on Tuesday he was wrong.


Then I cannot understand where the noble Lord acquired the information. Almost everything he said in that speech was familiar to me. I have heard it over and over again, apart from some additions and modifications which, as a result of research, it was decided to inject into this Bill. The language is familiar. It is precisely the kind of talk that we heard in the other place. I suspect that the noble Lord, Lord Carrington, became acquainted with the subject only when he became Secretary of State for Defence. I ask the question again: why was the Bill introduced here? It may have been because the Secretary of State for Defence is in this Assembly. We are very glad to have him here: of course, he could renounce his title and go to the other place, subject to an Election.

Let me make it plain that I have no objection to the introduction of Bills into this House. But I am well aware that when this Bill goes to the other place they will, as a result of the deliberations of the Select Committee, come to certain conclusions, possibly with Amendments to the Bill. It will be difficult if we have a Committee stage in this Assembly to revise anything done by the other place. Indeed, my noble friend Lord Winter-bottom asked whether there was going to be a Committee stage in your Lordships' House. I am surprised that the noble Lord, Lord Carrington, agreed that there is to be a Committee stage in your Lordships' House. If the Select Committee, which is established by the legislation of 1955, is to consider Amendments—and its decision is conclusive, subject of course to the decision of the other place—I cannot for the life of me see how we can revise that decision. However, I stand to be corrected in this matter, and we may have the right in this House to modify some of the decisions reached by the Select Committee.

I do not want to make heavy weather of this and to go into all the details of discipline, Naval discipline, sentences and all the rest of it. I know exactly what is going to happen: it is precisely what I have ventured to say to your Lordships. It is this: that when sentences are imposed, however harsh they may seem to be, and however objectionable from the point of view of the victims who are adjudged guilty, they can always be modified by a decision of the Secretary of State for Defence. There is a tremendous responsibility resting on the noble Lord, Lord Carrington, as Secretary of State for Defence, because he has to deal with all the Armed Forces in relation to any act of discipline that occurs and is brought to his knowledge.

There is not much more that requires to be said. My only reason for raising the matter the other day was that I though there was some confusion and I asked for clarification. The noble Lord has clarified the situation, except that he has not answered the important question of why the Bill was introduced in this House. It is all very well to postulate the constitutional position of the Government's right to introduce Bills in this Assembly, but the question is: why was the Bill brought here when there is no precedent for it? The only previous Secretary of State for Defence who was in this House was the late Lord Alexander of Tunis—a fine, outstanding person whose acquaintance I was delighted to have. Not since he was Minister of Defence in this House, or indeed at any time, has a Bill on this subject been brought before this Assembly. So I ask: why was this Bill not introduced in the other place? I do not want to provoke any trouble—that is the last thing that I should think of doing—but it may be that in the other place they will ask questions about this. They will want to know why they had not the privilege of dealing with this matter before it came to your Lordships' House, and the Secretary of State may find himself in a heap of trouble. I do not want to see him in that situation, but if he finds himself in any awkward predicament or embarrassment, I will do my best to extricate him.

4.19 p.m.


My Lords, I am almost overwhelmed by the last two sentences that have fallen from the noble Lord, Lord Shinwell. I should like first of all to thank all three noble Lords who have spoken for their welcome to the provisions of this Bill. I am happy to think that at any rate some of my opening remarks defused the noble Lord, Lord Shinwell, and that the bubbling noise which we on this side of the House heard was only an exchange of civilities between him and the noble Lord, Lord Williamson. The noble Lord was good enough to say that he was glad that I was here. May I say that I am very glad that he is here, because I think he livens us all up very much indeed. I think the noble Lord misunderstood me when I was talking about constitutional rights. I was talking about the constitutional rights of another place, and I was making it clear that I did not think that by introducing this Bill in this House we were in any way infringing the constitutional rights of another place. I do not think there is any doubt whatever that there is a constitutional right for us to have this Bill in this House first. I do not believe there can be any question about it.

The noble Lord asked me why it was that the Government decided to introduce the Bill in this House. The reason is simple: at the begining of a Session of Parliament there are very few Bills which come up to your Lordships' House because most Bills are introduced in another place, and most Bills have to be introduced in another place for reasons which the noble Lord, Lord Shinwell, knows very well. All Governments, this one, the previous Government and the one before that, have always had the difficulty that the business of your Lordships' House has been very thin at the beginning of a Session, but in June and July, when all the Bills come up from the Commons, we are overloaded with work.

It has been the wish of both sides of the House, ever since I can remember—and I have been a Member of the House for 25 years—that we should try to do something about it and start as many Bills as we possibly could in this House in order to relieve the congestion in June and July, which imposes an enormous burden on your Lordships. It was felt that this Bill was one that could perfectly well be introduced in this House, and there did not seem to be any objection to that procedure. It is perfectly true that it never has been done before; it is perfectly true that it was not introduced in this House when the late Lord Alexander was Minister of Defence, because at that time it was a Supply Bill. It was not until 1955 that these Acts ceased to be Supply Bills, because they were then involved with money. It was only since then that it would have been possible to introduce them in this House.

Although it is perfectly true that it has never been done before, I am rather sad to think that the noble Lord, Lord Shinwell, after his great career in the House of Commons and as a great Socialist, should set such store by never doing anything that has not been done before. We, at any rate, as a Government, are not frightened of a little innovation. I hope very much—


My Lords, I do not object to inconsistency by the noble Lord as a member of Her Majesty's Government. After all, their whole philosophy is utterly inconsistent.


My Lords, the noble Lord is now changing his ground with great celerity but with not much conviction. I hope—as do the noble Lord, Lord Beaumont, and the noble Lord, Lord Winterbottom—that we shall have a good Committee stage in this House. We have something to contribute which would be valuable, and it might well be useful for the other place, and for the Select Committee in the other place, to take account of the deliberations we have in this House on various clauses and aspects of this Bill. I notice that the noble Lord, Lord Shinwell, wrote a letter the other day to The Times about the reform of the House of Lords which also was not noted for its forward-looking attitude, but at the end of his letter he said that he thought that on occasion the House of Lords might even do some good. I think we might even do some good to this Bill on Committee stage, and I hope that the noble Lord will join in and see what he can do to help us.

I am very grateful for the other points which were raised by the noble Lord, Lord Winterbottom, and the noble Lord, Lord Beaumont. This is a difficult Bill on which to have a Second Reading because there is no constant theme running through it; it consists of a number of varied and isolated topics, and as such it is really impossible to have a Second Reading debate. I am glad if the officials at the Ministry of Defence helped the noble Lord, Lord Winterbottom, as much as they have helped me, because if it can be said that we have made lucid speeches I do not believe that we should have made them had we not had that help, for this is an extremely difficult Bill. I congratulate the noble Lord, Lord Beaumont, because I do not know that he had that help; but, in spite of that, I thought he was extremely good. I certainly look forward to hearing from him on the three subjects which he suggested he might raise. I do not agree with him in his remarks with regard to the Attorney General, or the Director of Public Prosecutions, but we can certainly argue that matter on the Committee stage.

I also agree with the noble Lord, Lord Winterbottom, in what he said about looting. It was not called "looting", if he remembers; it was called "liberating". I remember that I once "liberated" a Mercedes motor car, just before the end of the war. My divisional commander found me in it and said that it was the most disgraceful thing that he had ever seen, and removed it from me. The next week I found him riding about in it, and I suspect that if the provisions of this Bill had been in force then, he, as a major-general, would have received greater punishment than I, as a temporary major—at least I hope so. I trust that your Lordships will give the Bill your support and that on Committee stage we shall have a useful, far-ranging debate and do something to help the other place in their deliberations on this measure.

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