Clause 5. — (Application to Persons Called Up of Army Act and Air Force Act, and Provisions as to Discipline, Pay, etc.)

– in the House of Commons at 12:00 am on 1st March 1951.

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Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South 12:00 am, 1st March 1951

I beg to move, in page 8, line 21, to leave out subsection (2).

We view with considerable concern subsection (2) of this Clause. The Committee will see that it gives power to the authorities to prosecute in the magistrate's court a man going absent without leave, and at the same time it retains the existing power under military law of dealing with him summarily under the military law, or, indeed, of trying him by court-martial. There is no doubt that this provision is modelled on Section 15 of the Reserve Forces Act, 1882. Under that Act the maximum penalty was a fine of £25, with prison in default of payment. Here, the Committee will appreciate, the maximum sentence that can be imposed in the magistrates' courts is £25 and imprisonment for one month.

I do not believe that much use has been made, if any, of this power of prosecuting in courts of summary jurisdiction persons under the Reserve Forces Act, 1882, for absence without leave. I have a strong objection to the inclusion of this power of prosecution for what is, after all, in its nature, purely a military offence, if it is intended to use it in relation to the men who will be affected by this Amendment or if it is not intended to use it.

I should like the Committee to consider a moment what the position would be if this subsection remains in the Bill. There will be a lot of these people called up who are going into the Regular Army. The majority of those will be called up for 15 days, some for three months, and some for as long a period as 18 months. But all those called up, whether it be for 15 days, three months, or 18 months, will, if this Bill is passed in its present form, be liable, if they are absent without leave for one day—and this is not a question of not turning up for the call-up—not only to be dealt with under military law but to be brought into the local police court, prosecuted and convicted of a criminal offence.

It seems to me that that will lead to very odd results. Those who are brought into the magistrates' court, or a court of summary jurisdiction as it is sometimes called, and convicted will have that conviction permanently upon their record. Those who are dealt with by the military authorities, either summarily or by court-martial, will have no such record upon their record. Some of those who are called up under this Bill may be prosecuted before the magistrates' court; some may be dealt with by court-martial.

In the cases dealt with by magistrates' courts there will be a wide disparity of sentences because they have no practical experience of dealing with this kind of offence. There will not only be a wide variety of sentences passed by magistrates' courts, but there is likely to arise a wide disparity of treatment between the civil courts and the treatment, either summarily or by courts-martial, by the military authorities. The maximum punishment under the Army act for absence without leave is two years' imprisonment or two years' detention. If a man comes before a magistrates' court the court may have no power of awarding a sentence of detention. One of the objects of giving a sentence of detention is to avoid the stigma of a sentence of imprisonment.

On Second Reading the Under-Secretary used two arguments—although I think myself that not much importance should be attached to it because he was a little taken by surprise by the point—on which I must touch. He said that if this power to prosecute is not taken the man who has gone absent without leave must be taken within three months of the 15 days, because under the Army Act the man is only subject to military law for a period of three months after his service terminates. That is true. But he must be prosecuted within six months if he is brought before a magistrates' court, and if that man is not caught absent without leave in the first three months the chances of doing so in the last three months are slightly reduced. That was one argument, but I do not think it is a good enough argument for making absence without leave a criminal offence for all those who are brought up under this Bill when it is not made a criminal offence for members of the Regular Forces.

The other argument, which I think I can deal with fairly and shortly, was that, having regard to the period of time it would be administratively convenient to bring these cases before the magistrates' court. I do not think that in practice that would be found to be so. The same evidence would be required before a magistrates' court as before a court-martial. I think that it would be found that the magistrates' court, not being so familiar with this sort of case, would probably meet with some difficulty in establishing fairly and conclusively the case of absence without leave. I have put forward my arguments very shortly. I can see how this subsection came to be within the Clause, but I think that the Bill will be very greatly improved and the possibility of injustice and unfairness as between individuals considerably reduced if the hon. Gentleman will agree to its omission.

Photo of Mr Michael Maitland Stewart Mr Michael Maitland Stewart , Fulham East

I have been much impressed by the arguments put forward by the hon. and learned Gentleman. I ask the House, however, to notice that whether one is concerned for military discipline and making sure that orders are obeyed or concerned for the liberties, rights and proper treatment of the man there are arguments on either side. For example, the provision under Clause 5 (2) makes it possible for the offence to be dealt with, if that were appropriate, solely by fine. Unless we can devise some new procedure under the regulations to be made under this Clause, there does not appear to be at present any equivalent to that when we deal with it militarily. That is one argument for dealing with it through the civil courts.

As I suggested on Second Reading, there are some administrative difficulties. If a man goes absent and is apprehended later, he will probably have to be attached to a different unit for the disciplinary process to be carried through. We shall have to consider how, if we are acting under military procedure. to apprehend the man. Do we send a military escort to fetch him, possibly some months after the period of training is over, when he is living at home as an ordinary civilian? If we do, is that likely to create unnecessary odium? I do not say that the problem is insoluble, 'but these things were in our minds when the Clause was incorporated in the Bill. Although a good deal can be argued either way, I think that we must accept the force of the contentions advanced by the hon. and learned Gentleman, and we shall be glad to accept the Amendment.

Amendment agreed to.

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

I beg to move in page 8, line 28, after the words last left out to insert: Any person who has been convicted under this section shall, on conclusion of such sentence, he discharged from His Majesty's forces. I do not wish to repeat the argument which I used on an earlier stage of the Bill, except to say that I believe that a sentence under this section would mean discharge from His Majesty's Forces.

Photo of Mr John Paton Mr John Paton , Norwich North

On a point of order. I am at a loss to under- stand to what it is proposed to attach this particular Amendment, since we have already agreed to the deletion of subsection (2) to which this is an Amendment.

Mr. Leslie Hale:

I am concerned with a similar Amendment, and I presume that they will be discussed at the same time. This is an Amendment to the section, and subsection (2) applies to convictions under subsection (1).

Photo of Mr Douglas Clifton Brown Mr Douglas Clifton Brown , Hexham

The hon. Gentleman does not desire to move the Amendment?

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

Yes, I move to oblige you, Sir. You called upon me, and I did not wish to be discourteous.

Photo of Mr Douglas Clifton Brown Mr Douglas Clifton Brown , Hexham

The hon. Gentleman will, I am sure, oblige the Chair and the Committee if he does not move the Amendment.

9.15 p.m.

Mr. Leslie Hale:

I am sure that there has been a misunderstanding. My hon. Friend the Member for Norwich, North (Mr. J. Paton), has suggested that the Amendment has no force because of the deletion of subsection (2). But the Amendment applies to the whole Clause. In these circumstances, we desire the Amendment to be moved.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Northamptonshire South

I think that the hon. Member is wrong, because subsection (1) does not refer to convictions of any kind at all, and subsection (3) also has nothing to do with convictions. Therefore. I submit that the hon. Member for Norwich, North, is clearly right.

Mr. Hale:

Subsection (1) simply says that a Class Z reservist will be subject to military law, and the Amendment concerns anyone who becomes convicted under the subsection. It has always been inherent in our proceedings, quite apart from rather crude points of order, that if a subsection is deleted, some readjustment is made to the wording of later Amendments so that they can be moved.

Photo of Mr Douglas Clifton Brown Mr Douglas Clifton Brown , Hexham

We need not discuss that at any length. If the Committee so agree, the Amendment can stand by itself. I assume that men subject to mili- tary law can be convicted, and that being so the Amendment is in order.

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

I think that the Amendment will strengthen the Clause. The purpose of the Amendment is that in the case of anyone being convicted under the Clause he shall be forthwith discharged from the Forces.

Photo of Mr Woodrow Wyatt Mr Woodrow Wyatt , Birmingham Aston

Will my hon. Friend explain to the Committee what the man can now be convicted for?

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

It is not for me to answer that. I submit that it is a reflection on you, Major Milner, because you have called the Amendment. I should certainly have been the last person to rise had you not called my name. I wish to move the Amendment, and I think we are entitled to ask for the support of those with military experience. I think they will agree that if an offender ceases to be a liability their time will not be wasted. It will avoid further court martial proceedings in regard to people who are not likely to be of any use to the Army. Therefore, they should be glad to discharge these people from the Forces. This is a particularly logical Amendment, and I appeal to the brigadiers opposite to support it.

Mr. Hale:

The Amendment standing in my name is in almost identical terms. I understand that it is being discussed with the Amendment of my hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes). It raises the same point, but I hope that we shall not regard this as the moment to press this matter to a Division. [HON. MEMBERS: "Why not?"] We shall have later opportunities. We accept for the moment the decision that has been taken by the Committee, but the point is one that deserves serious consideration. The object is perfectly clear, although the Amendment is not now quite so consequential having regard to the previous Amendment, on the acceptance of which I congratulate the hon. and learned Member for Northants, South (Mr. ManninghamBuller)—I only wish that I were more successful in the Amendments I move. As I say, the Amendment is not now quite so consequential, but it can be made so by adding the necessary conjunctive words, as is so often done in proceedings in Standing Committee.

The whole object is well understood by the Committee. A man is called up for 15 days, but for some reason during those 15 days he breaks his period of service. It may be through some act of folly on his own part, some indiscipline, because of some emergency at home or something of that kind. Those are matters which can be considered by the tribunal. If such a man is called up for service if he enrols, if his name is down, and if he is doing what he is called up for and if something like that happens, and he is convicted, and penalised under military law, all we say is, whatever may be his future under military service, he will not be called up for another fortnight.

Photo of Sir Frederick Messer Sir Frederick Messer , Tottenham

Does that not have the effect that every soldier can be discharged from the Service?

Mr. Hale:

Of course it does not. I am sorry my hon. Friend has not read it more carefully. This only relates to the 15-day period of service, because this same man might be called up for 18 months, but that comes under a different training anyway.

Photo of Sir Frederick Messer Sir Frederick Messer , Tottenham

But everyone could get out by this means?

Mr. Hale:

Everyone can get out of service in the Armed Forces through a court martial, a period in the glasshouse —institutions, which, by the way, I hope we shall some day pay particular attention to—and by the possibility of a stiff military sentence. However, if a man carries his objection to military service to that extent, I think the military authorities would agree that it is not worth while having him at all.

Photo of Mr Woodrow Wyatt Mr Woodrow Wyatt , Birmingham Aston

Could my hon. Friend tell me what this Amendment means? Does it mean that a person called up under this Clause would not be subject to military law during the time of his call-up? I do not follow what the Amendment means.

Photo of Mr Arthur Henderson Mr Arthur Henderson , Rowley Regis and Tipton

In spite of the dulcet tones of my hon. Friends, I have to disappoint them again. It is quite impossible to accept a situation such as that referred to by my hon. Friend the Member for Oldham, West (Mr. L. Hale), on the basis that if a man commits a breach of military law and is punished for it, he is thereupon able to return to his own home. Indeed, as the Clause is drafted, the Amendment would cover not only those called up for 15 days, but also those called up for three months and 18 months.

While I do not believe that any individual in the Royal Auxiliary Air Force called up for three months or 18 months as a flying instructor would ever be convicted of a serious offence, I do not think they would expect to be discharged from the Force merely because of the fact of a conviction. Certain types of offence carry with them cashiering or dismissal from the Forces, and the law for that already exists. To suggest, as my hon. Friend does, that because a person is convicted—no matter how minor the offence may be—he should be discharged is a situation which we find impossible to consider, and I am bound to tell my hon. Friend that I could not in any circumstances agree to give it serious consideration.

Amendment negatived.

Photo of Mr John Boyd-Carpenter Mr John Boyd-Carpenter , Kingston upon Thames

I beg to move, in page 8, line 36, at end, to add: and if either House of Parliament, within the period of forty days beginning with the day on which the regulations are laid before it, resolves that an Address be presented to His Majesty, praying that the regulations be annulled, no further proceedings shall he taken thereunder after the date of the resolution, and His Majesty may by Order in Council revoke the regulation so, however, that any such resolution and revocation shall be without prejudice to anything previously done under the regulations. The Under-Secretary, on a previous Amendment, anticipated what he was going to say on part of this Amendment, but I would respectfully submit that the answer which he gave to this Amendment is only a partial and not a complete answer. The effect of this Amendment is to subject to Parliamentary control by way of the negative procedure the regulations made under this Clause. I conceded on the previous Amendment that it would be inappropriate to submit regulations of the King's Regulation character to Parliamentary control, but regulations made under this Clause are not confined to them. If the Financial Secretary will look at the Clause he will see that regulations can also be submitted otherwise for the purposes of this Part of this Act, and in particular for prescribing anything thereby required to he prescribed. Those are extraordinarily wide words, and there would seem to be the need for some explanation of what these words are intended to cover before we can allow the Clause to go without attempting to submit these regulations to Parliamentary control. Can the Under-Secretary say now that the regulations to be made under that part of the Clause are similar to those made under the earlier part, and are King's Regulations? The words are very wide and I should like to know what they are intended to cover.

Photo of Mr Michael Maitland Stewart Mr Michael Maitland Stewart , Fulham East

The hon. Gentleman is raising the question how far the regulations to be made under this Clause are comparable to King's Regulations. I think that I am correct in saying that the regulations made under the Clause are those referred to in Clause 2 (3) where there is a reference to "the prescribed manner," which will mean prescribed in the regulations. In the subsections that we were discussing earlier, Clause 4 (2) and (3), there are also certain references to regulations to be made or things to be done in the prescribed manner.

I think the hon. Member will find that if there are any regulations to be made under the Clause not strictly comparable to King's Regulations, they will form one close body together. We should be creating difficulties to no useful purpose if we tried to chop off a few here and there on the ground that they are not exact counterparts of King's Regulations. The case of regulations to be made under Clause 4 (3), which we discussed earlier, is somewhat distinct. There the Bill had already chopped them off to be dealt with as a very specialised class. I would ask the hon. Member and the Committee to accept the view that we shall be following a correct and reasonable procedure, for which there is good precedent, if we keep the Clause as it is.

Photo of Mr John Boyd-Carpenter Mr John Boyd-Carpenter , Kingston upon Thames

I take it that the Financial Secretary means that the general words at the end of subsection (3), and in particular for prescribing anything thereby required to be prescribed, are intended only to be used for making regulations of the King's Regulations character and not generally for the purposes of the Bill. Is that right?

Photo of Mr Michael Maitland Stewart Mr Michael Maitland Stewart , Fulham East

I am afraid that if I gave that impression I would be going too far. They mean that wherever there is in the Bill a definition using the words "manner to be prescribed," or words to that effect, the prescription is done by regulations under the Bill. What I was saying was that although that is so, I think we can safely say that the things to be prescribed are such that the regulations are properly comparable to King's Regulations and can reasonably be treated in that manner.

9.30 p.m.

Photo of Mr John Boyd-Carpenter Mr John Boyd-Carpenter , Kingston upon Thames

It was of some importance to get that clear. The Financial Secretary will agree that the words are very wide. On that assurance, I beg to ask leave to withdraw the Amendment.

Photo of Mr Michael Maitland Stewart Mr Michael Maitland Stewart , Fulham East

I would add that I shall look at this again and see if it is as I believe it to be. If there is any difficulty, we shall endeavour to put it right.

Amendment, by leave, withdraw.

Clause, as amended, ordered to stand part of the Bill.