Skip to main content

Third Schedule—(Minor And Consequential Amendments Of The National Service Acts, 1939 To 1946)

Volume 437: debated on Wednesday 21 May 1947

The text on this page has been created from Hansard archive content, it may contain typographical errors.

I beg to move, in page 17, line 17, after "forces," to insert:

"(not earlier than the third day after the date of the service of the notice)."
This gives effect to an undertaking given during the Committee stage that a man would be entitled to at least 14 days' notice of his call-up.

Amendment agreed to.

Amendment proposed: In page 17, line 18, at the end, to insert:

"and after the said subsection there shall be inserted the following proviso—
Provided that an enlistment notice shall not require the person upon whom it is served to present himself on a day earlier than the fourteenth day after the date of the service of the notice or such earlier day as may be determined at his request."—[Mr. Ness Edwards.]

I beg to move, as an Amendment to the proposed Amendment, in line 5, at the end, to add:

"and if before the expiry of the said fourteenth day that person gives written notice to the Minister that he disputes his liability to be called up under this Act for whole time service, then the Minister shall refer the question in dispute to a referee, and the notice shall not become operative to enter or enlist that person unless a referee selected by the Minister from a panel of persons nominated by the Lord Chancellor, after inquiring into and determining the question in dispute, directs that the notice shall become operative so to do on such date as may be specified in the direction."
I think we are now approaching the end of our labours and so far as I can determine this is the last Amendment of substance we have to discuss. Even though it be a late hour I would not like the House to under-estimate the importance I attach to this Amendment. I do not think that I need move it in any detail because we have discussed the matter before. But I must say that the Government have now moved an Amendment to Clause 5, which provides that this machinery be adopted and the matter be referred to a referee in the case where a man who has been called up for whole-time service has volunteered and joined an auxiliary force, and has been assessed for part-time service. If in this narrow Clause it is right to import that machinery to provide for determination by referee rather than by court-martial, the case for this Amendment is much stronger, because the effect of this Amendment will be this. Any man served with a notice calling him up for whole-time service for 12 months will have the right, if he disputes his liability, to have the question determined by a referee from a panel selected by the Lord Chancellor, rather than by court-martial, if he has been arrested and put in custody pending trial. I do not think, at this late hour, that there is any need for me to say any more except to express the hope that the Government will accept the Amendment. If they will, it will bring the machinery into line with that machinery brought forward by the Government today, and it will also determine whether a man is ordinarily resident in this country. It will mean that the man shall be dealt with in this way rather than by court-martial, not in the least degree familiar with the provisions of this Act.

I should hope, also, that the Government will accept the Amendment to the proposed Amendment because the Clause, as it stands, will mean that a man who does not report for service will have his first opportunity of making objections only before a court-martial. I do not desire, at this hour, to go much farther, but, on the Committee stage, the argument was advanced that, under Section 154 of the Army Act, the Amendment was unneces- sary because a man would appear before a magistrate. The next point was that under Section 163 of the Army Act it is not always necessary for a deserter to appear before a magistrate. He can be apprehended and by implication under that Section, a document signed by a police officer or anyone else is sufficient at a court-martial to prove that the man was a deserter. I should remind the House that, in actual practice, a deserter does not appear before a magistrate. The other fallacy is that, even if brought before a magistrate, it so often happens in practice for the magistrate to ask if all the notices have been complied with, and the answer is "Yes," and the magistrate would then say, "Very well, in those circumstances you can raise whatever you wish when you get to your destination."

I have had good experience of cases of this sort. I had actual experience of one case which I would like to mention to the House. The victim in this case was a stalwart and upstanding Irishman from South of the Border; he was accustomed to come to this country, do some work, and then go hack to Ireland. I should say that this may be considered to be a border-line case, but the first fact is that this man took the view hat he was not liable for military service. Unfortunately. the officials of the Ministry took an opposite view. In due course he found himself served with an enlistment notice, but being a stout fellow, he consigned that to the place he thought most appropriate for it and took no notice of it. That was followed by a telegram from his commanding officer-to-be who suggested to him that if he did not report on a certain date he would be treated as a deserter. He ignored the telegram. The telegram was followed by two gentlemen whom he could not treat in that way, two military policemen who apparently had never heard of Section 154 of the Army Act. They brought him to Ballykinlar in the North of Ireland, where he was thrust into the guardroom of a famous Irish regiment and told that he was going to be a soldier.

11.45 p.m.

He asked for a copy of the National Registration Act, but instead of that he received next morning a visit from a drill-sergeant who carried in one band a blackthorn, as is the custom, and in the other—this fusilier being a large man—a very small suit of battledress. That was the ordinary method by which this sort of man was dealt with. The fusilier was told to put on the battledress and when he explained the difficulties and went into the legal niceties of the case, the drill-sergeant told him he really was not interested, but if he did not put on the battledress he would be charged with disobedience of a lawful command. The soldier did not put it on, and appeared before his commanding officer. His commanding officer, an understanding man from the same part of the world, when he heard the case put up, said that he also had had difficulties with officials, who were troublesome people, and the difficulty was that they were often right. He said it would be a sensible thing if the fusilier went off and put on the battledress, and then there would be no more trouble about it. However, this fusilier was made of sterner stuff and did not, and came back next day and was awarded seven days' detention, which was again the normal step in all these case, because this was quite a normal case.

After seven days' detention the battledress was produced again and the unfortunate fusilier, in his grey civilian suit and getting rather battered from detention in the cells, again refused. This time his commanding officer said that he was sorry but this was too much. He had explained everything to the fusilier and he must now go for trial by court-martial. I saw the fusilier and I explained to him as best I could when he told me his point how he should take it. I advised him—it might not be the best advice—that he should make a plea as to jurisdiction, and he did so. He said that he would argue his own case, and he argued it exceedingly well. Eventually the court came to the conclusion on the preliminary point that he was under the jurisdiction of the court, in other words, that he was amenable to military law. Then came the question of whether he was guilty of disobedience of a lawful command. The fusilier said that for the first time he had had his case heard, and for the first time he had been able to put his view forward. He said he thought that there was cogency in the arguments advanced against him and that if he was allowed a rather bigger suit of battledress he would put it on. He was given a bigger suit of battledress and put it on, and in 10 weeks he was one of the best soldiers we had, and had a stripe.

One might have thought that his trials and troubles were at an end. Of course, that was not the case. While he was soldiering and getting ready for his draft to go overseas, the court-martial papers by devious channels had made their way back to the War Office or some remote fastness where an important officer, no doubt, looking at them, said that the King needed no unwilling soldiers; and word came back that the fusilier was to be discharged. These were words the Irishman could not understand, and he said, "First of all, you tell me I shall be court-martialled if I do not put on the uniform, and now you tell me that I will be court-martialled if I do not take it off. I am only 15 miles from the Border, but have to be taken to London to have my uniform taken off, and then taken back to Dublin. It seems odd, but if you insist, I will go," and he went. He arrived back in Dublin without a penny in his pocket, and walked the whole way to the Border, 75 miles, saying in a good Tipperary accent, "I come to enlist voluntarily now. Send me to my unit, and tell them I am reporting back."

My purpose in telling this story is to try to avoid other men, Irishmen or Englishmen, if not so stalwart and steadfast in their character, from being hauled off again through all the preliminaries which are always gone through from the commanding officer eventually to the court-martial. One has had experience of it. It is, in fact, the first occasion on which the man who denies his liabilities under this Measure—the first occasion as in the case of my friend the fusilier—has his case heard. So I hope the Parliamentary Secretary will reject the advice he had last time, even though he had it for nothing, and accept my advice, which, after all, is also free, and at the same time accept the Amendment to the proposed Amendment.

I certainly have had a very formidable case put up against me. I hope I shall forget about the fusilier in the course of my sleep tonight. This is the ground we went over very fully in the Committee stage. We argued it almost to shreds. We have been asked tonight to redeem in part the undertaking I gave during the Committee stage, and I would endeavour to see that each man's liability to service should be decided by a nonmilitary machine. That is the first point.

Secondly, we have been asked to apply to the man who is going to do his fulltime service that type of machinery we have provided for in the case of the part-time service. Let us see the exact processes. During the war we called up 5,000,000 men. It is notorious that Government Departments make mistakes, and it is fairly apparent that the War Office made its share of mistakes. Here we have to envisage under the Bill a normal flow of roughly 200,000 men going into the Forces every year. By and large the call up will be limited to men on reaching the age of 18. Their liability is determined in the first place by their registration, and if a man does not register for military service he can be summoned by the Ministry of Labour to appear before the local magistrates. If he is not a person to whom the Act applies, he cannot be compelled to register and his case would be dismissed. At that first stage the question of his liability is determined. I agree that there may be some men who, having registered, might not be liable at that time for service. The next step is, having registered and gone through that part of the machine, they would then be called up for medical examination. The man who is not liable would naturally refuse to react to the call to the medical board. If he refuses to go to the medical board because he says he is not liable, nothing happens to him until the Ministry of Labour summonses him before the local magistrates. Again he can argue his case. He is not arrested, and the magistrates can decide whether or not the Act applies to him, and whether, in fact, he has committed an offence by not appearing before the medical board. So he has two chances of determining his liability under this Measure.

Then there is a third chance. I agree that there has been much dispute on this third chance. I am still advised that having accepted his liability for registration, having accepted his liability for appearing before the medical board, if he fails to answer the call-up for his fulltime service, the normal course and the legal practice—I know that there is dispute about it—is for him to be taken before the local magistrates. It seems clear that that is the normal process, but I would remind the hon. and learned Gentleman that the man is now going to get 14 days' notice of his call-up; we have just decided that. He can go to the Ministry of Labour and say, "You are calling me up and you ought not to do so. I am not liable." But if he has accepted liability for registration and liability for appearance before the medical board, it does seem that on the face of it he is liable under the Bill. I should have thought that that was conclusive, because he cannot be called up to the medical board unless he has registered, and he cannot register unless he is liable. Nor can he be called up for full-time service unless he has been medically graded. Thus, he has those two opportunities of deciding his liability in a legal way, without inconvenience to himself, without any question of arrest or of a military escort without even appearing before the hon. and learned Gentleman in his former capacity of Judge-Advocate in the Army.

He has all those safeguards, and I am quite satisfied that in those circumstances the man's liability can be determined by non-military machinery. That was the undertaking which I gave to the Committee. To take the other case that has been made against us, in regard to the part-time service, there is no such machinery in that case. If a man is issued with a notice he will run all the hazards of arrest and a military escort. In those cases it is not a matter of law but a question of period, which can well be left to a civilian referee. That is the reason why we have provided the new machinery in the case of part-time service. Those are the reasons why I must ask the House to reject this Amendment.

With the leave of the House, may I put this point? The procedure which the Parliamentary Secretary has outlined with regard to registration and medical inspection was the procedure to which presumably the fusilier and many others were subject. There is nothing novel in that. Section 163 of the Army Act does not apply so as to bring a person arrested for desertion before a police court.

12 m.

As a layman I must not attempt to argue with a lawyer, but I have looked at the case of the Amendment in particular. Surely, the case to which the right hon. Gentleman now refers is one in which the man confesses he is a deserter. When the man confesses he is a deserter, I agree, it can be short-circuited straight into the hands of the military. In the normal case of the man who says he is not a deserter, I am still advised that he must be taken before the magistrates. I should have thought those three special measures give the man ample protection against any abuse or malpractice as far as Service authorities are concerned.

The Parliamentary Secretary has put up a very much better case than he did on a previous occasion. The only difficulty I feel about this matter is in connection with the first two safeguards that he has mentioned, those of taking objection at registration or subsequently when summoned before a medical board. They are sufficient safeguards if every young man of 18 is a trained lawyer quick to apprehend the precise significance of this Bill and of every provision of it, and also apt to take a point of law at every convenient opportunity. But the Parliamentary Secretary knows perfectly well that he is not dealing with that sort of person at all. He is dealing with young men inexperienced in the world and probably as ignorant of the detailed provisions of this Bill as many of us were before we began to study it. Therefore, I am not convinced that the safeguards which he has outlined are adequate.

The further safeguards proposed in this Amendment would only come into operation if the previous safeguards proved inadequate. If any young man who desired to dispute his liability for service took this point at registration or before the medical board, the proposal in this Amendment would not come into operation at all. If the Parliamentary Secretary is right, and those safeguards are adequate, then this further safeguard would be a dead-letter, but it would certainly do no harm. It would not cause any trouble to the Parliamentary Secretary or his Department. On the other hand, if we are right and these safeguards are inadequate, this further safeguard is of certain value. If he accepted the Amendment to the proposed Amendment, and if his own view was right, it would not make very much difference, but if our view was right it would make a substantial difference. It is an additional safeguard to meet a very difficult situa- tion in a minority of cases. Therefore, I ask the Parliamentary Secretary to reconsider the matter and say that, while perhaps the Opposition are being overcautious, over-caution in this matter is not a bad fault, and he is prepared to insert this additional precaution.

With the leave of the House, I would say that there are a lot of young men about in the large cities who, I am afraid, would use this in order to get a deferment or a postponement of their service for motives not of the highest. The hon. Gentleman may shake his head, but I assure him that the Ministry of Labour, during and since the war, has had experience in this matter. We ought not to create provisions whereby men are enabled to postpone their service. They can get a deferment of a month or two without any cost.

Of course, they can. All they have to say is that they are not liable. We have looked at this very closely and with great sympathy. I think the undertakings to the House have been carried out completely. I ask hon. Gentlemen to realise that perhaps while they should be very careful about preserving the rights of the citizen, there are very great dangers in accepting the Amendment as it appears on the Order Paper.

The Parliamentary Secretary really cannot get away with that. Such an ill-disposed young man, and there may be some, really would not get a month or two if the machinery of this system of referees were improved. There is no reason why they—

The hon. Member should ask the leave of the House if he wishes to speak again.

Apparently hon. Members opposite are not prepared to allow the case to be put.

Amendment to the proposed Amendment negatived.

Proposed words there inserted in the Bill.