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First Schedule—(Length Of Whole-Time Service)

Volume 437: debated on Wednesday 21 May 1947

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I beg to move, in page 15, line 5, after "practicable," to insert:

"but in no case later than twenty eight days."
We had a certain amount of discussion on this matter during the Committee stage, and still we are not at all happy about it. The right hon. Gentleman must realise that there is in the minds of serving soldiers a suspicion about the word "deferment." There has been a great deal of deferment in releases from the Forces and so long as the words:
"…or as soon as is practicable after, the expiration of a period of twelve months beginning with his entry or enlistment for service…"
remain, the suspicion will continue. We are well aware that in the course of the Debate, the right hon. Gentleman the Secretary of State for War put up the case of the man who was either in hospital or undergoing treatment, and said it would be unfair to him that he should be discharged when he should be kept on full pay during that time. We entirely agree with that. I suggest that some protection, some other words it necessary, should be inserted to cover that position. There must be a definition of the word "practicable." It is too vague, and it arouses suspicion in the minds of soldiers who have known of cases being deferred for month after month. We feel that this should be put in the Bill in some way. In col. 1039 of HANSARD it will be seen that the Minister did undertake to look into this matter again. I imagine from the attention that I am getting from the Attorney-General that it is he who is going to reply, and I hope he will give an assurance that some words will be inserted to put a limit on the word "practicable." If it is only a case of covering and safeguarding those people who are under medical treatment or in hospital, and so on, words to that effect could quite easily be inserted.

11.15 p.m.

We have given most careful and, I think, sympathetic consideration to this Amendment, which, as the hon. and gallant Member for Worthing (Brigadier Prior-Palmer) has said, was the subject of a good deal of discussion in Committee, but I am afraid, if I may use the word, that it would not be practicable to accept it. The Clause as framed does not in any way give a licence to the Service authorities to prolong a man's service because it might be convenient to them to do so. What is "practicable" is, of course, a question of fact, and it would be by no means settled by the ipse dixit of the particular Service authority. In the last resort, if the soldier felt that he had been kept in the Service for longer than was necessary or practicable, it would be for the courts to decide whether it had been practicable or not to release him at an earlier date. I do not think the courts would regard themselves as being in any way bound by the view of the Service authorities on the matter—in fact, in my experience of them, they would view the opinion of those authorities, if it were expressed, with great jealousy. If in the event the court found that it had been practicable to release the man at an earlier date, they would no doubt award substantial damages against the Service Department which had improperly detained the man.

The object of this Clause, which is really much stricter as against the Service Departments than the phrase which is used in the existing Statutes, which is "with all convenient speed," is really to protect the serving man rather than to give the Service Departments any licence to detain him for longer than is necessary. It has been found in all previous Statutes dealing with this kind of matter that one must provide somehow for some sort of margin after the terminal date in order to meet the unexpected and exceptional case. It covers the kind of case which the hon. and gallant Member for Worthing had in mind, where a man is perhaps on his way back to be discharged, possibly from the Far East; he falls ill and has to be put into hospital en route, and the date passes. Unless one had some provision for a margin of this kind, it would no longer be legal to pay him his proper Service pay, or to pay allowances to his family, or, later on, to give him Service facilities for getting him home. Again, there is the case where he is on his way and the ship breaks down, or something of that kind occurs quite unexpectedly, and there is a delay, so that he cannot be got back to this country within the time of his service. That is the kind of exceptional or unlikely case one has to provide for by a suitable form of words when fixing a time limit of this kind. One can see at once that this Amendment would really be quite inapt if one reads it into the Clause itself. The Clause would then read:
"The term of whole-time service shall be completed on or as soon as practicable but in no case later than 28 days after the expiration of the period of 12 months."
In other words, the service would in law be completed, although in fact and in law it was impracticable to complete it. That would make absolute nonsense of the Clause. If we could have found another form of words—if hon. Members opposite could suggest a practicable form of words—we should be very ready to consider it, but we have thought about this matter and have tried various alternative phrases, but we have not found one which is really apt to meet this purpose. We think these words are better, from the point of view of the serving man, than the words used in the existing Statutes, and for these reasons we hope that the Opposition will not press this Amendment.

I cannot say that I regard the right hon. and learned Gentleman's answer as convincing. We on this side of the House have always recognized the necessity for a margin, although that was not understood by the Secretary of State for War when we first moved this Amendment in Committee. Here you have an unlimited margin covered by a wording which is very vague in character. I am not in the least reassured by the right hon. and learned Gentleman's observation that the man who is kept on longer than the courts think practicable will, after his ultimate release from the Services, have a remedy in damages. That gives me no confidence at all. The difficulty about this phrase is the different interpretations which may be put upon it by the man affected, and by the Service authorities.

May I put this case to the right hon. and learned Gentleman? There may be a conscript serving in Germany or Austria, whose period of service is due to expire. The Service authorities may regard it as not practicable to bring him back to this country at the date of expiry of his term of service. They may consider that it is more practicable that he should remain, perhaps, to act as an Army cook until his successor arrives. That is the sort of situation against which we want to guard—the different interpretations which may be put on this wording by a lawyer, by the Service authorities, and by the man affected. They may differ. It is a real difficulty, but I do not want to take up the time of the House in dealing with it now. As I said on the Committee stage, I think both sides of the House are in agreement on what we want to achieve. What the right hon. and learned Gentleman has said in his reply to the arguments is really to confess his inability to put this object into appropriate language for the purposes of an Act of Parliament. I should like to encourage him to make another effort. I think it is possible to find words of limitation, or words which do, in fact, express what we intend should be covered by the power to extend the period of whole-time service beyond twelve months. As the Clause stands, who is to judge of the practicability of bringing a man back within twelve months? Who will be in a position to challenge the voice of the Service authorities when the Service authorities say that it would not be practicable to bring a man back on his due date? I hope that the right hon. and learned Gentleman will give further consideration to this matter with a view to putting into the Clause some words of limitation, or words which will indicate the sort of test which is to be applied in determining what is, or what is not, practicable.

I should like to pursue this argument, and in particular to refer to the arguments which the right hon. and learned Attorney-General used in trying to convince the House that the present words, "as soon as is practicable after," were more to the benefit of the serving man than the present words plus those my hon. and gallant Friend has moved. First, it seems to me that 28 days gives a perfectly reasonable period in which all those things to which the right hon. and learned Gentleman referred might take place. If there is a transport breakdown between Germany and this country, surely that transport breakdown—even if it were to take place under the nationalisation of transport in this country—would not be so bad that the man would be held up for 28 days. Surely the right hon. and learned Gentleman does not think as badly as that of his right hon. colleague the Minister of Transport? If that is so, 28 days is a perfectly reasonable limit but if the Attorney-General thinks that there may be such a breakdown as would detain a man for more than 28 days then surely there is some limit. I feel certain that the majority of the House will agree with me that it is desirable that some limit should be stated.

The Secretary of State for War used the argument on a previous occasion that some power must be kept in the Bill to pay a man who is sick. Is it the case that you could pay a man under the Schedule as it now stands, and could not pay the man under the Schedule if we amend it? It seems to me that in the case of a man lying sick in hospital it is perfectly practicable to terminate his whole-time service at any time—"practicable" though not desirable—and the word here is practicable. Therefore, it would appear that there is a power to pay a man who is sick beyond the twelve months period, beyond which he would normally be called. That appears in some other regulation and not in this Schedule. I believe there are regulations which apply now to men in the Forces or the Auxiliary Forces whereby if they fall sick, before the end of the period of their service, there is provision for them to remain in receipt of pay until they have recovered from sickness. I think I am right in that and in any case the learned Attorney-General or one of the Service Ministers will put me right on this. Bearing those two points in mind, I think the right hon. and learned Gentleman should reconsider his arguments, bearing in mind particularly the points put to him from this side of the House.

I had hoped that the Minister could find another form of words to meet this point. I am not satisfied with the First Schedule nor am I satisfied with the Amendment proposed. The Amendment proposes a definite period—28 days. My experience of the Service is that if you say 28 days, that is looked upon as a definite date. They will say, "Do not hurry him up; we still have some days more before the full period runs out." One could ask, Why not 14 days, or why not, say, 42 days? The same argument would apply. I agree that the words used are "as soon as practicable." I am not satisfied that the words "as soon as practicable" are adequate and I hope that some more applicable form of words will be found.

11.30 p.m.

It seems to me that there is a point of substance in this although I do not agree with the Amendment. There are two problems. We are trying to give a certain amount of leeway to the Service authorities to deal with administrative problems as they arise—such as ships being delayed, people abroad being brought back from overseas, and so on. I think it is reasonable that the Service authorities should be given that leeway, though I agree with the argument advanced by the hon. and gallant Member for Chertsey (Captain Marsden) about giving the Services more leeway in this respect. If you give them one day they will take it, and if you give them 14 they will take it, and if you give them 28 days they will take that. It could be argued that you might just as well give them 12 months, and have it finished on that date and no nonsense about it. There are in fact these administrative considerations and a certain amount of leeway is required.

I suggest that the Minister should look into this to see what is a reasonable amount of leeway. After a certain date it becomes a question of the interests of the individual himself and there the Minister, quite rightly, does not wish to deprive himself of the opportunity of benefiting the individual. Would it not meet the case, if, having selected a date when the Service authority should have to discharge their own obligation, we should include some phrase such as "except with the agreement of the man"? I put that forward merely as a suggestion. I hope the Government are not considering this purely as a benefit question. There may be other reasons. You may want to pay a man who has somehow got stuck in Marseilles and cannot get out. You might have a man perfectly fit and healthy, and he might be in India. Do not let the right hon. Gentleman be persuaded by the medical advice he gets so willingly. The only point of my intervention is to show it is a point of substance. I think it can be solved, but I do not think this Amendment can solve it.

I agree with the hon. Member for Northern Dorset (Mr. Byers) that the point is one of substance. I am ready to consider any suggestion put forward in regard to it. It is a little remarkable that no hon. Member who has spoken has been able to put forward any alternative suggestion, except the hon. Member for Northern Dorset. He put forward the perfectly proper suggestion that the margin should be made to depend on the man concerned. But that is not really practicable. We are legislating here for the exceptional case, the unlikely case. A man may be ill, or unconscious, or mentally ill, or for some other reason may not be able to give his consent. A man serving on a foreign station may have gone over the border, on the day he was due to be discharged, and may have been detained. Should we, in that case, have to deprive him of the protection to which he is entitled as a member of His Majesty's Forces? There are all sorts of unlikely and exceptional cases of that kind and the hon. and gallant Member for Chertsey (Captain Marsden) has made it clear you cannot meet these cases by laying down a time limit of 14 days or 40 days or 400 days. It is not a question of who to deal with but of laying down a time limit. You must find an appropriate form of words having the elasticity necessary in marginal cases.

These words, "as soon as practicable," are very familiar to those who study our Statute Book. There is often a difference of opinion in regard to them. There may well be a difference in interpretation given to them by serving men and by the Service Departments. If there is such a difference of opinion one will have to resort in this case, as in all other cases where these words are used in statutes, to the law. I agree the law is not always a very efficacious and expeditious remedy, but I have a little more confidence in the ultimate sanction of the law than the hon. and learned Member for Daventry (Mr. Manningham-Buller). I do think that, if a man is detained for a period which he considers is beyond what is necessary, he is likely to come back to this country and take advice, and that he is likely to be advised that he would have a very good and proper remedy available in the courts in this country. If hon. Members opposite can think of any alternative form of words—we have done our best—to that which we have used, we will certainly give consideration to it. But we must have some form of words which will provide a certain degree of elasticity in the exceptional case, but do not give licence to the Service Departments unduly to prolong the case.

Will the right hon. and learned Gentleman answer the question about the sick man?

I am sorry. I did not make a note of it and the point slipped my mind. I am quite clear on this point. If, under this Schedule, the man's service comes to an end at the end of 12 months or 12 months plus 28 days or whatever period it may be that is done, there will no longer be any legal entitlement to Service pay or Service allowances.

Amendment negatived.

I beg to move, in page 15, line 21, to leave out sub-head (ii).

In Committee we discussed this subhead and as soon as it became plain that this was an administrative matter, which had no relation to the maintenance of discipline, and that the contention of the hon. and learned Member for Daventry (Mr. Manningham-Buller) that there should be no distinction between absence and desertion, was a valid one, I undertook to move a suitable Amendment on the Report stage. This Amendment gives effect to that promise and I trust the House will accept it.

I should not like this Amendment to pass without saying "Thank you" to the hon. Gentleman for the way in which he has met our suggestion.

Amendment agreed to.

Further Amendment made: In page 15, line 23, after "was," insert "absent as a deserter or."—[ Mr. J. Freeman.]