Orders of the Day — ARMED FORCES BILL [Lords]

Part of the debate – in the House of Commons at 12:00 am on 13 January 1971.

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Photo of Lord  Balniel Lord Balniel , Hertford 12:00, 13 January 1971

For me to attempt to interpret the legal meaning of the words in the Bill would, on Second Reading, be unwise; and I shall be explaining to the House later on that we shall be proposing, if it is the wish of the House, to refer the Bill to a Select Committee; and it is that kind of point which, I should have thought, would be eminently suitable for discussion in the Select Committee.

The Bill also—and here I come to Clauses 36 to 40—establishes a common scheme of punishments. Certain punishments, as I have explained, disappear altogether. Instead, there will be a single code of punishment to which all members of the Armed Forces will be subject. It is not only certain punishments which disappear from the previous legislation. So also do certain old phrases. The provision under which an officer who behaves in a scandalous manner unbecoming the character of an officer and gentleman is to be cashiered is amended. I think that phrase is redolent of soldiering in the Punjab, of brandy glasses, card tables. I suppose this is a bit anachronistic. I imagine lawyers would find it very difficult to define what gentlemanly and ungentlemanly conduct is. I think the best definition was given by King James when he was asked by a mother to make her son a gentleman. King James replied, perhaps rather roughly, that he could make him a nobleman but God Almighty could not make him a gentleman. The phrase, "conduct and character of an officer and gentleman" has been withdrawn from the Bill.

Along with establishing a single system of punishment, we have also decided that there should be a single maximum penalty for the different offences. This is the present naval system, but the Army and the Air Force Acts at present carry a higher maximum penalty for certain offences on active service and a lower penalty at other times. These offences are disobedience or threatening a superior officer, desertion, drunkenness and offences by or in relation to sentries. In modern conditions it seems quite inappropriate to measure the gravity of any one of these offences by the existence of a state of active service. This does not seem to be the right criterion. Drunkenness when one is flying an aircraft with crew or passengers on board and disobedience on patrol with one of the Polaris submarines are neither more nor less serious whether or not a state of active service exists.

There is one provision in the code of offences to which I should draw the attention of the House. Under Clauses 2 and 7 it is proposed to re-enact the death penalty for a range of military offences. These offences are: mutiny or incitement to mutiny on active service, misconduct in action, assisting the enemy, obstructing operations, failure to repress a mutiny and spying for the enemy on board Her Majesty's ships and naval establishments overseas. The last one is not in the Bill but is in Section 93 of the Naval Discipline Act.

Hon. Members are of course rightly deeply concerned about the scope of the death penalty in our legal system. It still exists for one or two offences in the civil law, for instance, treachery under the Treason Act, but the House will note that apart from mutny or incitement to mutiny on active service, the only offences which will carry liability of the death penalty are those which have been committed with the intention of assisting the enemy. The results of the grave offences which still carry the death penalty as a maximum sentence could be far greater than any results likely to flow from a crime of murder in civil life. These are the kind of offences which could imperil a ship or a military unit and consequently the lives of comrades. They could imperil the security of an army or a fleet or the security of the country as a whole.

The other point which the House might like to know is that of course the court will always be able to award any less punishment if it thinks fit to do so. As one would expect, the utmost restraint has been used in carrying out the death penalty in the past. If we put aside executions for murder, which of course is a civil and not a military offence, and which is no longer a capital offence in the military courts, four men have been executed under the Service Discipline Acts since 1939. Three men were executed after conviction for armed mutiny whilst serving in the Indian Ocean in 1942. One was executed for the civil offence of treachery in the course of the war in 1946.

I will rapidly draw the attention of the House to Part III of the Bill, Clauses 44 to 58. The purpose of the Clauses is to codify practices where they differ between the Services—and they are fairly technical in nature. Clause 56 I think is of general interest. Hon. Members will recall that some time ago a private soldier was brought before a magistrates' court as a suspected deserter. He managed, by committing perjury, to convince the justices that he was not subject to military law, and so he was released. The military authorities later collected evidence which showed that he was in fact a deserter from the Army, and he was arrested by the military police under the normal powers of arrest in the Army Act and charged for the offence of desertion. There was a fair amount of criticism at the time on the grounds that this soldier should not have been brought to account by the military authorities without his being brought again before the civil court which had previously released him. Administrative orders were issued to ensure that this situation would not arise again, and Clause 56 is designed simply to embody this in legislation.

Parts IV and V of the Bill, that is Clauses 59 to 75, contain a variety of miscellaneous Amendments, many of which are rationalisations of practice between the Services. One of these, Clause 74, will be of special interest to the Navy. It enables the new rank of chief fleet petty officer, recently introduced into the Navy, to be given its proper title of warrant officer. I am sure that Members of the House will agree that it is a most desirable step forward that ratings in the Royal Navy can now achieve a comparable position with the warrant officers of the other Services.

Finally, I should like to refer to part of the discussion in another place. My right hon. Friend the Secretary of State said that he intended to introduce an Amendment. This would provide that civilians sentenced by court martial should be able to appeal against sentence to the Courts-Martial Appeal Court. At present, civilians in this position are in exactly the same position as members of the Services. After their trials are confirmed and reviewed they may then appeal against conviction to the Courts-Martial Appeal Court, but if they wish to appeal only against sentence they can only do this to the Defence Council.

It was argued in another place that, while there were clearly good reasons for civilians accompanying the forces overseas to be tried by court martial rather than by the local courts, it was nevertheless desirable to give them, as far as possible, the same right of appeal against sentence to a higher court as civilians would have in this country. It was not possible to lay an Amendment to achieve this purpose in another place because the actual working out of the Amendment has proved to be a good deal more difficult and complicated than we had expected. We intend, though, to ensure that appropriate amendment to the Bill is made during its passage through the House, and I thought it was appropriate to inform the House at this stage of our intentions.

It is now a parliamentary convention that a Bill which affects the discipline of the Services should be referred to a Select Committee. If the House gives a Second Reading to the Bill, we therefore intend to move to send it to a Select Committee for examination. When the Select Committee has reported on the Bill, it will of course we recommitted to a Committee of the whole House.

It is possible that hon. Members of the House and of the Select Committee will have criticisms to make of this legislation, but the Government accept full and total responsibility for the introduction of the legislation into the House. I think it would be the wish of the House as a whole that we should express our thanks to those who over many years have spent much time and work in the preparation of this codification of law, although the ultimate responsibility for its introduction rests on our shoulders.

I commend the Bill to the House.