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Clause 4—(Amendment Of Definition Of "Enemy")

Volume 498: debated on Wednesday 2 April 1952

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On a point of order. Sir Charles, may I respectfully seek your guidance? I will put my point as reasonably as I can. In the course of a debate some weeks ago my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) was suspended from the sittings of this House for being on his feet at the same time as the Chairman. [HON. MEMBERS: "Speak up"] If the Chairman rises to put a point without any discussion at all, there is no practicable way by which an hon. Member can respectfully draw the attention of the Chair to his own views on the matter, a matter of vital importance, unless he physically rises while the Chairman is on his feet.

A moment ago I was subjected to criticism for being on my feet at the same time as the Chairman. Could I ask you to give us some Ruling as to how it is possible to raise a point of order at all when a Question is being put? So far as most hon. Members are concerned, this is a most unusual course, because I do not think that Standing Order has been applied before. I know of no way of raising a point of order except by rising when the Chairman is on his feet.

Now may I respectfully put the second point, which is of great importance. I do say with respect that although there are Standing Orders which direct the Chairman to put the Question forthwith, there is nothing in Standing Orders which prevents a point of order being put at any stage of our proceedings, and that it would be very undesirable if that were the case.

I thank the hon. Gentleman for his courtesy in what he said. I am aware that he would not do anything disrespectful to the Chair or anybody else. The point is that the word "forthwith" appears in Standing Order No. 45 as it does in other Standing Orders. When that happens there is nothing to be done except to put the Question. There can be no point of order. I am only carrying out the Standing Orders of the House. It may perhaps be awkward, but I have no discretion in the matter. Since the hon. Gentleman drew attention to the fact that he remained on his feet while I was standing, as I knew he would not be discourteous, I took no notice.

I am grateful, Sir Charles. I am sure the Committee is grateful for your courtesy. There was a point in our proceedings earlier today when you were good enough to say that, by a mistake, when a Motion to report Progress had been moved, you took it for a Motion that the Question be now put. With respect, surely that is a matter on which we ought to have the right to rise at once and put a point of order? But there again we should be in the position that, with you on your feet, it would appear a discourtesy were we to rise. It would be possible, therefore, in circumstances similar to those I have mentioned, for the House to decide something which had never been moved. Therefore, I suggest that the word "forthwith" is not so peremptory as to make it improper for a point of order being respectfully put before the Division is taken

I am not learned in the law, but my idea of "forthwith" means at once. That may or may not be right, but that is what it means to me.

I have not the remotest intention of casting the least doubt upon the Ruling that has been made, Sir Charles, but I am sure you appreciate that once the Chair arms itself with the most arbitrary power it possesses, when it cannot allow any further discussion—such a power which is unusual and rarely exercised—it means that any considerable body of opinion in the House will feel that it is unable to present its views. That is the reason why, in my respectful submission, it rarely ought to be exercised.

I would ask the right hon. Gentleman to remember that I did not arm myself with any power. I am only carrying out the will of the House. I would not presume to do otherwise. In my opinion there had been adequate discussion of the Clause, and I was simply carrying out the rules of the House. If I was wrong, I can only say that it was my opinion.

On a point of order, Sir Charles. Would you be kind enough, for the guidance of the Committee, to indicate what attitude you propose to take on the procedure on this Clause? Before my hon. Friend the Member for Oldham, West (Mr. Hale) raised his point of order, I thought I heard you call on the Secretary of State for War. Could you kindly say whether that means you are not calling either the Amendment in my name to page 3, line 40, at the end, to add:

"but shall not include British subjects or citizens of the United Kingdom and Colonies engaged in an industrial dispute,"
or the other Amendment in the names of various other hon. Friends of mine?

I beg pardon. There is a manuscript Amendment of the Secretary of State for War which comes before the Amendment in the name of the hon. Member for Maldon (Mr. Driberg). However, I am afraid that when the time comes I shall rule the hon. Member's Amendment out of order.

I beg to move, in page 3, line 39, to leave out "hostile" and to insert "armed."

This Clause has been introduced to make certain changes in the existing definition of the word "enemy" as it at present stands in Clause 190 of the existing Act. The only substantial alteration lies in the last part, which states:
"pirates and all persons engaged in hostile operations against any of Her Majesty's Armies."
I am only too well aware that the hon. Member for Maldon (Mr. Driberg) was somewhat anxious about that particular definition, and so was the hon. and learned Member for Northampton (Mr. Paget), because they said that it seemed to them that it would cover individuals, even in this country, armed with bricks or, as an hon. Member said, armed with pea-shooters. For these reasons I have proposed this manuscript Amendment. I think that the hon. Gentleman will agree that that change does resolve the point about which I appreciate he has the right to be anxious because of the latitude which was given in the Clause. I hope that in view of the Amendment the Committee will agree to this Clause and that the hon. Member for Maldon will not feel pressed to move his Amendment.

I intended to raise a point if discussion were allowed on the Question that the Clause stand part. The point would have arisen had the word "hostile" remained; but I think that the point I was going to raise arises even more acutely in view of the Amendment now introduced. The Secretary of State will remember that a little earlier we were discussing the meaning of the phrase, "engaged in operations", which occurs in the preceding Clause. The Secretary of State then argued that that phrase could not mean merely such an act as posting a sentry. He was saying that the phrase, "engaged in operations", without any adjective before it, must mean some positive action, something more than the posting of a sentry or the carrying out of a routine military duty. He prevailed on the Committee to accept that.

Now we have a new phrase introduced, namely, "armed operations." I am not learned in the law, but I believe that I am right in suggesting that if in one part of the Bill we have the phrase "engaged in operations" and in another part "engaged in armed operations", it is a not unreasonable assumption that to both lawyer and layman that they do not mean the same thing.

The hon. Member will recall that in the previous Clause the phrase "engaged in operations" was referring to the British Army. I cannot conceive of the British Army being in occupation of a foreign country and being engaged in operations unarmed. I think that the hon. Gentleman is stretching this point too far. I put in this word to cover a specific point, namely, that in this country it could be interpreted that the throwers of bricks would become enemies. I moved the Amendment to obviate that possibility. The hon. Gentleman is making heavy weather of this and is not being helpful to the Committee.

11.30 p.m.

The right hon. Gentleman has not seen my point at all. I was asking for information. We now have two phrases, "engaged in operations against the enemy" and "engaged in armed operations against any of Her Majesty's forces". Apparently, therefore, there are two different concepts. We all understand well what engaged in armed operations will mean, and we agree that the right hon. Gentleman has made a helpful concession in putting in the word "armed" here, but it would appear to throw some doubt on the meaning of the phrase "engaged in operations". He previously defined that as excluding ordinary military duties, and meaning, therefore, armed active operations. Now, apparently, it does not mean that, because "engaged in operations" must mean something other than—and presumably something less emphatic than—"engaged in armed operations." What comes, then, of the argument he used on Clause 3? I dare say that there is some simple legal answer, but before we proceed we ought to have it.

I will endeavour to give the short answer. It is a very simple point. I do not share the hon. Gentlemen's fear about difficulties of interpretation of Clause 3 in the light of the proposed Amendment.

In Clause 3 we are dealing with British forces engaged in various activities, engaged, as he says, in operations against the enemy. There could only be a different meaning attached to the phrase in Section 4, "engaged in armed operations," if the hon. Gentleman is prepared to assume, as I am not, that a British force when unarmed would be engaged in operations against an enemy. The definition goes on, "engaged in a foreign country in operations for the protection of life or property." I do not think the argument advanced in relation to Clause 3 in any way invalidates the interpretation and meaning of the Amendment to Clause 4, which is to exclude the possibility to which attention was drawn. I do not think there is any reason for fear about this, and I hope that we can pass on to the next point.

I take it the new definition was originally included to cover the operations in Korea, which are sometimes described as deterrent action rather than war. I am much obliged to the Secretary of State for War for meeting me on the Amendment that I put on the Order Paper. The Chair has already indicated that that Amendment would not have been called, but in any event I should have felt obliged, in view of what the right hon. Gentleman said, to ask leave to withdraw it. I am only sorry that in giving this recognition of the value that may be supposed to be contained in my simple Amendment the right hon. Gentleman has got himself in the wrong with the hon. Member for Fulham, East (Mr. Stewart).

I am now fully satisfied with the explanation given by the right hon. Gentleman.

I would make the suggestion that perhaps in future years it would be worth considering whether in the definition Clauses of the Act, which are very extensive and thorough, there could be a definition of the word "operations." The right hon. Gentleman himself tried to define it at one stage of our proceedings last night, and although there are definitions, as he will know, in a good many places, I do not think there is a proper definition anywhere.

The difficulty seems to me to be this. When last night we were discussing "operations" on an earlier Clause, I expressed the view—I do not think it is the view of the Solicitor-General—that "operations" would have to be construed in its dictionary sense of being an activity. The right hon. Gentleman took the other view and said that it would have to be construed in its military and technical sense.

Last night the hon. and learned Member isolated the word "operations", looked it up in the dictionary and made a very good speech on that basis. What he overlooked was that the phrase in the Clause is "engaged in operations," which is a different thing from "operations" per se the dictionary. I should say that military forces

"in military occupation of a foreign country"
and engaged in operations, are not forces who are sitting in barracks, going to the cookhouse, and going about under ordinary peaceful conditions.

I quite follow the point. If the right hon. Gentleman wishes that technical meaning to be applied to "operations," he would be safer to put in a definition when he comes to the end of the Bill. For the moment, I am accepting his definition that "operations" in Clause 3 has the technical meaning of being the collective object of a military force.

But surely that is not the meaning which the right hon. Gentleman intends to apply in Clause 4. If an individual—in Malaya, it may be—in a quite independent manner goes out sniping British forces, I imagine that that is an operation which makes him an enemy within the definition of Clause 4. That is an additional reason—

Perhaps my hon. and learned Friend could be further assured by the definition in the Act:

"The expression 'enemy' includes all armed mutineers, armed rebels, armed rioters, and pirates."

But then it goes on to say:

"all persons engaged in hostile operations …"

I beg pardon. I should have thought that whereas "operations" would exclude the individual sentry as being engaged in operations in Clause 3, it would include the individual sniper in Clause 4, so that "operation" in Clause 4 has the dictionary meaning whereas in Clause 3 it has not. There may be some confusion if we use two words in following Clauses, the first in a technical and military sense, and the second in its ordinary and dictionary sense.

I do not know that "armed operations" is much better than "hostile," because the right hon. Gentleman said he wished to exclude the man who throws a brick. But is not the man who throws a brick armed? I remember one of the most famous of historical engagements, one which took place between the Israelites and the Philistines, and as far as I remember that action was by one David casting a stone at one Goliath. Surely that is an armed operation, and certainly the courts have held that the fist of a trained pugilist is a weapon. Therefore, I suggest that a better word than "armed" would be "lethal." What is really meant is the man who attacks forces with the intention of killing some of them, not merely with the intention of making a display, or the case of a rioter throwing a brick, but with a lethal intention. I should have thought that to achieve the intention of the right hon. Gentleman "lethal" would have been a much better word than "armed."

I think this is an improvement, and I am grateful to the Secretary of State for it. Will it be your intention, Mr. Hopkin Morris, to put the Question that the Clause stand part, in which case I could say things on this Clause more conveniently than now? In view of the recent application of the Standing Order, I wonder if you could give us some guidance?

We are not anywhere near that yet. We are on the first line of Clause 4 at the moment.

If you cannot answer my question now, Mr. Hopkin Morris, I shall not dispute it; but I must address the Committee now piecemeal on these matters instead of collectively. I am rather sorry to take that course. The very difficulty the Committee are now in on the whole meaning of "operation" shows it is regrettable we did not have an opportunity of discussion on the Question that Clause 3 stand part.

On that point, if I may intervene, I think my hon. Friend the Member for Oldham, West (Mr. Hale), has consciously or unconsciously raised a serious question. He invited you to say, Mr. Hopkin Morris, whether you intended to permit a debate on the Question that the Clause stand part. We have had a discussion tonight as to whether in any circumstances it is possible to have a Ruling of that kind. I hope we shall never get into a situation in which any hon. Member of this Committee invites the Chair to give a Ruling, while we are discussing one of several Amendments on a clause, whether at a later stage there is to be a discussion on the Question that the Clause stand part.

That is precisely the reason for what I said. There are a number of Amendments to the Clause and I do not know what the position will be by the time we have dealt with those Amendments.

This seems to me very important and in the interest of the Committee as a whole, not only on this Bill but on other Bills. It would be quite impossible and would render the whole of our proceedings futile if it ever was considered possible, while we are discussing one of several Amendments, for the Chair to be asked even to consider whether there could be any doubt about the ability of the Committee to have a debate on the Clause stand part.

I do not know whether my hon. Friend was in the Committee during our previous discussion, but I am impressed by what he has said and by what you, Mr. Hopkin Morris, have told us. We have had a Ruling that there can be no discussion whatever and no argument on whether there is to be a debate on the Question that the Clause stand part. Hon. Members are in the position that if they have prepared a speech to deal comprehensively with that Question they may find in the end that they take no part whatever in the Committee proceedings.

I think the suggestion the Minister has made is an improvement. I would have suggested that the word "military" might have been better than the word "armed," but that is a matter of argument. There is, however, a curiosity about the Amendment as now put, because this is the one exception to a list of classes of "enemy." As far as I know, there is in the Act itself no definition of the word "enemy" as enemy. There is merely an interpretation Clause which says there shall be included in the word "enemy "a number of additional classes.

A number of these classes are in fact exceptions to the rule—armed mutineers, armed rioters, pirates. We now have an exception added to a series of different exceptions, and I know the Solicitor-General will realise that that might give the courts difficulties in interpretation but for the fact that these classes are not likely to come before the courts. However, it is a little anomalous, and I hope the Minister will consider the matter between now and the Report stage.

11.45 p.m.

It is curious, too, that pirates do not have to be armed. To be a pirate is an offence of such enormity that he is an enemy, whether armed or not, and apparently wherever he is. It presents an important problem, indeed, when we are engaged in operations in Korea that the normal sea tradesman is generally regarded as something of a pirate and when many of the ships are devoted to the casual foray from time to time.

There is another point of very real substance on this matter. This is the dreadful difficulty we are getting in. Let me put this classified definition of armed persons, armed operations, and armed mutineers. It is natural that we think in terms of hostile forces operating in a hostile way. It is clear that what is meant is a mutineer in the military sense. What is meant is not some person who seizes a ship on the high seas and goes into port and tries to drive out the soldiers. We mean a mutineer in the military sense. A mutineer in the Army is a man who commits minor acts of insubordination. He comes under Section 7, which says that
"Every person subject to military law who commits any of the following offences; that is to say,. …"
which ends by saying,
". … shall, on conviction by court-martial, be liable to suffer death, or such less punishment as is in this Act mentioned."
It includes the various matters we discussed yesterday, including concealment of a knowledge of somebody else's fault. It includes all sorts of phrases of insubordination, which are all technical cases of insubordination for this purpose. If a man is carrying a rifle, he is classed as a mutineer.

We have a lot of Amendments to discuss, and I am trying to put a comprehensive argument instead of wasting the time of the Committee by getting up once or twice to speak. Yesterday we spent two hours discussing the definition of active service, and nobody mentioned that active service controlled the sentence of field punishment. One can sentence a lad of 18 years who is serving in Germany to field punishment for a whole series of minor acts of insubordination, merely on the ground he is scheduled on active service. That lad of 18 on active service in Germany can become an armed mutineer merely by minor acts of insubordination. I know that the right hon. Gentleman, on looking back, will remember classic instances of what was a mutineer in the old days.

I know he is a man of great humanity, and I say sincerely that I would trust him implicitly to see these abuses do not grow up again and that no new abuses will be allowed to arise. In the old days, an orderly officer would go round and ask the soldiers, "Any complaints?" If a small voice said, "Yes, sir," the reply would be, "Take that man's name and put him on a charge at once." That is one's first test of insubordination in the forces. I had hoped I might have been interesting you, Mr. Hopkin Morris, but I will accept, at once, the implied warning I gather from your manner. I thought that one illustration in amplification of my theme would be worthwhile.

Really, the Clause should be re-drafted and made more smooth, sensible, and logical in its detail. I ask the right hon. Gentleman to consider this matter again as we may not have the opportunity of considering Clause 3 again.

I want to make a very brief intervention because I am not quite satisfied with the answer the Solicitor-General gave to my hon. Friend the Member for Fulham, East (Mr. M. Stewart). I am grateful to the right hon. Gentleman for putting this Amendment forward, but the objection I would have to it is that it seems to me to make the phrase in Clause 3

"engaged in operations for the protection of life"
worse than it is at the moment.

Let me give an example of what I mean. The right hon. Gentleman said that, as a matter of substance, we know perfectly well when an armed force is engaged in an operation. Well, suppose there is an outbreak of looting, and an armed force is called upon to put it down, and suppresses it, and remains there in case there is a renewal of the looting. At what time does the force and the soldiers comprising it cease to be on active service?

It seems to me that that is a question which it is extremely difficult to answer, even if we do not have the proposed Amendment to Clause 4. The right hon. Gentleman is to look again, as he kindly told us, at the definition of "on active service." I hope he will give further consideration to the words "engaged in operations for the protection of life," which seem to me to be worse than they were before, worse than they were when the phrase read
"… engaged in hostile operations."
I would ask the right hon. Gentleman to consider the point I have raised—that there may be a battalion putting down an outbreak of looting, and the consequent position of a soldier in the battalion. At what time is he engaged on active service? Is he engaged on active service only when the looting is going on and is being suppressed? Or does he remain on active service when the battalion remains in the area in case there is a further outbreak? Or does he then cease to be on active service? All these doubts arise only because of the unsatisfactory and vague nature of the expression "engaged in a foreign country in operations for the protection of life."

The reason I am making this comment on the present Amendment is, that it seems to me that, by now using the expression "engaged in armed operations" in Clause 4, we are casting still more doubt than there was before on the words "engaged in operations for the protection of life" in Clause 3. I hope that the right hon. Gentleman will give further thought to that, and that the Solicitor-General will also consider what I have said.

I am aware that this Clause is not perfect. Indeed, it would be a very fine Clause that was, on this very difficult subject. As I think the right hon. and learned Gentleman will agree, it is not an easy matter for definition. He queried the words

"engaged in a foreign country in operation for the protection of life or property."
I put this consideration to him. However accurate the definition, it is almost impossible to define when active service ceases—purely by definition. I am no learned Gentleman, but surely that must be left to a ruling from the authorities concerned. One cannot actually define it. The right hon. and learned Gentleman shakes his head, but though I am not a lawyer I have had some experience of this problem, and of matters of de facto active service; and that presents a very considerable problem in these days of the cold war.

The right hon. and learned Gentleman cited the case of looting. It dies down. It does so very often in the day time, because looting, by and large, is a night sport. The battalion has the duty of preventing the looting. It has the general duty to do that. It stays in the area days, perhaps weeks. It is a matter of common sense. I thought the right hon. and learned Gentleman was making rather heavy weather of it.

I do not want to restart the discussion on Clause 3, because it would be out of order, but on Clause 4 it seems to me that the change we are now making makes Clause 3 worse than it was before. The right hon. Gentleman obviously cannot give an answer now, because that is an extremely difficult matter, and I can well understand the difficulty of defining these matters. I simply hope that he will not, as a result of changing Clause 4, make Clause 3 worse than it was before.

I am much obliged to the right hon. and learned Gentleman. I only dealt with that point because he raised it and I thought it was relevant, but the last thing I would want to do is to prolong the debate. I assure the right hon. and learned Gentleman that in the time available we will look at this again, and, with my hon. and learned Friend the Solicitor-General and our advisers, see if we can get something better. Perhaps I could consult the right hon. and learned Gentleman behind the Chair? If we could come to some agreement, we should be only too happy to do so.

I want to raise one point in connection with this Clause and the question of definition. It seems to me that there is one great weakness in this definition in that it deals only with those who are engaged in armed operations against Her Majesty's enemies, and does not deal with the situation, such as recently arose, when armed operations were initiated by Her Majesty's Forces against persons who had not engaged in direct operations themselves.

I think the case that comes immediately to mind is that which took place at Ismailia in the Canal Zone in January of this year, when, by a Cabinet decision, it was decided that Forces in the Canal Zone should go to a place where the auxiliary police headquarters were, present an ultimatum, and, in the event of the ultimatum not being accepted, should open operations against them.

Will the hon. Gentleman give way? I think his speech may give a quite misleading interpretation of this matter. This particular action, to which he referred, followed on a long succession of hostile acts within the Canal Zone, in which a considerable number of British soldiers were killed, mostly by irregular police for whom the Egyptian authorities were not responsible. The hon. Gentleman's speech suggests that, without any provocation whatever, British troops walked into the police barracks and shot the police, which is an absolute travesty of the facts and would be giving an impression not justified by the facts.

I am grateful for that intervention, because the right hon. Gentleman is in possession of more of the facts than an ordinary hon. Member in connection with this incident. All I say about that particular incident is that, as far as I personally am concerned, it will go down as a massacre, and I will leave it at that.

What I am much more concerned about is the situation which arises when the Government take the decision to initiate operations for very good reasons. For example, the whole question of the Korean war and the United Nations comes into this category.

That is very wide of this Amendment, and I must ask the hon. Gentleman to confine himself to the Amendment.

With very great respect, Mr. Hopkin Morris, I believe that it is absolutely relevant to this Amendment in that I am, as it were, putting my remarks in interrogatory form. I want to know whether certain circumstances, of which I think the Ismailia incident may be one example, and, I feel, possibly the Korean war would be a better one, would be covered by the situation created by this Amendment if it were accepted.

Let us take the case of the Korean war, which started, as we all agree, with an attack made by the North Koreans on the South Koreans, and it was decided by H.M. Government, in consultation with the United Nations, to initiate armed operations. I use the word "initiate" deliberately, because, in fighting the North Koreans, it was H.M. Government that decided to initiate operations.

I feel that any Clause which deals with the definition of an enemy is bound to be weak if it does not include the possibility of Her Majesty herself deciding to take action against organised forces or unorganised forces whom she may believe to be her enemy. This question could have arisen in the case of the Korean war in that, before the first British troops landed in South Korea, there was no definition in the Army Act which would have made the North Koreans, aggressors though they were, into an enemy. When the first British troops went into action against the North Koreans it was the British troops who initiated the armed operations and not the North Koreans.

I want to know whether there is anything in that point. Like the right hon. Gentleman, I am not a legal man, and on reading the Amendment it occurred to me that no definition of an enemy could be satisfactory unless it included those against whom Her Majesty decided to take action and not simply those who took action against Her Majesty. I should be grateful if the hon. and learned Gentleman or the right hon. Gentleman would intervene at this stage.

12 midnight.

I intervene only because I am interested in the subject sought to be covered by the Amendment of my hon. Friend the Member for Maldon (Mr. Driberg) about the possibility of the use of troops in industrial disputes. When the Secretary of State intervened, I thought he had completely met the point, and I shared the gratitude expressed by my hon. Friend the Member for Maldon, for his accommodation in doing that, but since then my hon. and learned Friend the Member for Northampton (Mr. Paget) has seemed to my lay mind to have put a pertinent question to which so far no answer has been vouchsafed.

I should have thought that the word "armed" meant "armed with firearms," and if it does mean that, and we can be so assured, then the right hon. Gentleman's Amendment meets the point so far as industrial disputes are concerned, because workers in industrial disputes do not run around with firearms, and if they do they ought to be brought under control, but if we cannot be specifically assured that it means "armed with firearms," then an important question arises.

If a worker in an industrial dispute walks out of the factory with a one-and-a-half inch spanner in his pocket, a weapon which can be lethal if used for a purpose other than that for which the maker intended it, is he considered to be armed? If the answer is in the affirmative, then I fear the action which the right hon. Gentleman has taken in all good faith, to meet the point of the Amendment about industrial disputes, in fact does not meet that point.

There is a difficulty of definition which I think my hon. Friends and I are entitled to press on the right hon. Gentleman. It will be recalled by many hon. Members, for instance, that in the early days after D-day there was not much sugar about and it was regarded in certain sections of the Resistance Movement as a good thing to put what limited supplies they had into petrol tanks. That constituted a weapon.

I think that even the Solicitor-General, who, I hope, will give us a far clearer idea of what we are about, will agree that if a vehicle engaged upon active military operations were to have sugar put into its petrol tank, then that sugar would become an arm. As my hon. Friend the Member for Reading, South (Mr. Mikardo) said, the same thing applies to all sorts of things when people have no actual firearms. An ounce of sugar or a spanner or a steel file in certain circumstances in war can constitute a far more formidable weapon than a Sten gun or a rifle.

The difficulties that have been expressed by my hon. Friends, and in particular the Member for Reading, South (Mr. Mikardo) might at any rate be partly met if the Secretary of State would consider a suggestion that I made previously that there should be some attempt in the definition or interpretation Clauses to define the word "operations." I think that if we had that word defined properly, as far as it was possible, then the qualifying epithets would be slightly less ambiguous or difficult, and would not involve any of the risks to which my hon. Friends have rightly drawn attention.

Amendment agreed to.

I beg to move, in page 3, line 40, at the end, to add:

In the definition of "reserve forces," in paragraph (9) of section one hundred and ninety of the Army Act, the words "including the militia," shall be omitted.
I hope I can deal quite shortly with this point which, I hope, will commend itself to hon. Gentlemen opposite as one of the non-controversial Amendments which perhaps we can accept. It deals with this strange expression which still remains in the Army Act, but which is dropped by way of definition. It refers to the militia. In the first place, men of the militia consisted of the old militia that existed before the Territorial Reserve Act of 1907. But, as the Solicitor-General will know, it then disappeared and became the Special Reserve and in 1921, under Section 3 of the Territorial and Reserve Forces Act certain people of the Special Reserve were given the name of militia and particularly of militiamen.

While, in fact, the Territorial and Reserve Forces Act has itself disappeared, in the first two sections of the Armed Reserves Act there is considerable discussion of what are described as "men" and subsequently described as "men and noncommissioned officers" who are members of the Reserve. There are two classes in the Reserve, Class 1, and Class 2 which are the Chelsea out-pensioners and people of that sort.

It would, therefore, look as if these words "including the militia" means those militiamen under this Act. But if we look at Section 175 (10) of the Act itself we find the words
"where any reserve officer within the meaning of the Royal Warrant regulating the position of the Reserve, holding a commission as an officer in the militia at all times. …"
Perhaps the Solicitor-General would tell us who are these officers holding commissions in the Militia, and why they should be subject, unlike any other Reserve officers, to the Act all the time? As far as I can see, Reserve officers are generally defined as people only from time to time subject to military law, and it looks as if these two definitions are quite contradictory. I do not know what officers of the Militia exist at the moment. If we are going to have the Militia mentioned at all, it should be defined. Is it the militia under Section 2 of the 1950 Act, or not? If so, who are these officers, and why should they be treated differently from Reserve officers?

If the militia is included in the Reserve, how can we then treat differently officers of the militia from the officers of the Reserve who are included together in the definition? It seems to me that we might go back to the old Act of 1879, which at least defined "militia" in the terms of the old fashioned militia that existed then. If we have a new militia, we at least ought to have a new definition and avoid the confusion which leads people to think that, in the first place we are referring to the old militia and, second, to give the impression that the militia is a body of its own, separately organised, with its separate officers. This is unsatisfactory. I do not know whether this is the best place to clear it up, but I hope that a statement will be made on this Amendment which I have just moved.

Two things are clear as a result of the short discussion and long examination we have given to this problem. The first is that the hon. and learned Member for Horn-church (Mr. Bing) has dealt carefully and, I think, accurately with one of the anachronisms which were referred to in the debate yesterday. The second thing is that, having returned to the calm waters of considering the Bill in the present, from the rather turbulent waters of considering the Bill in the future, I should be the last to disturb the aura of geniality which has settled on the Committee at this moment. Having thought out the Amendment, and having considered what the hon. Gentleman has submitted to us, may I say that we are prepared to accept his Amendment.

May I put this point? If it is necessary to leave in the Army Act a definition of the Reserve Forces and the Amendment is accepted and the militia is excepted, we shall have this left:

"The expression 'auxiliary forces' means the army reserve force:"
Surely that is rather inadequate. If it is necessary at all to have anything in like this, in view of the changes which have taken place in the Army Reserve, we ought to have a slightly more precise definition. I am sure my hon. Friend will want to say how grateful we are to the Government for accepting his Amendment, but before that, will the Secretary of State say that the Government will look at this again?

I can assure the hon. Gentleman that this Amendment will be made by a new Clause, as my hon. Friend has said—

What we propose to do—if I may anticipate the next Amendment without going out of order—is to incorporate both of these Amendments in a new Clause. That particular phraseology will be looked after in the Schedule to the Bill which, the hon. Gentleman may be interested to know, will involve some 17 alterations. That shows the complexity of the Bill.

I want to bring one point to the attention of the Secretary of State for War, in view of what my hon. Friend the Member for Dudley (Mr. Wigg) has said. He will remember that within the last three years we have started a Royal Marine Volunteer Reserve. It is quite clear, therefore, that the definition as it now stands, with the word "militia" excluded, saying that the Reserve is the Army Reserve, is not very satisfactory.

The Government might therefore consider whether there should not be inserted in the definition a reference to the Royal Marine Volunteer Reserve, which will come under the Army and Air Force Act in the same way as the Royal Marine Forces do when they are serving on the land today. I put that point to the Secretary of State for consideration when he is looking at this definition.

If it will assist the Committee, in view of the undertaking of the Secretary of State that he will deal with the matter by means of a new Clause, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

12.15 a.m.

I beg to move, in page 3, line 40, at the end, to add:

In the definition of "auxiliary forces" in paragraph (12) of section one hundred and ninety of the Army Act the words "and the volunteers," shall be omitted.
This is a similar Amendment to that which has gone before, and the effect would be that in Section 190 (12) of the Act, the words, "and the volunteers" would be omitted. The last volunteers in the British Army were disbanded in the 1914–18 war. Although there is still power to raise volunteers, that has not been done for a long time, and it is unlikely to be done in future.

I should like to make the same plea as I did on the previous Amendment. If the words, "and the volunteers" are taken out, the words left will mean that the expression "auxiliary Forces" means "the Territorial Army," which is inadequate, and takes no account of the Women's Forces. Will the Secretary of State, if he is going to accept the Amendment, give an undertaking to put down an Amendment to make sense of what is left?

As I understand, there remain only two Sections of the Volunteer Act of 1763, yet strangely enough, volunteers still exist so far as the Isle of Man is concerned. I do not know whether it is of great importance, but as we do not have representatives of the Isle of Man here, and as I take an interest in Northern Ireland, I felt I ought to raise this problem of the "half-way house."

The difficulty about this Clause is that it is no longer clear what we mean by "volunteer." There is the old meaning of someone not pressed or conscripted, and the other meaning of someone who serves without remuneration. The original Act included militia and yeomanry. The only volunteers with whom we deal are the women volunteers. If the Secretary of State will look at paragraph (a) of Section 176 he will see at the end a proviso which excludes anyone who is a volunteer and a woman from the Act. We have an Amendment later on which deals with this point, but I thought it might be helpful to call attention to it now.

The hon. and learned Gentleman's researches have displayed that in the Act there are contradictions on the subject of volunteers, in that something is mentioned and simultaneously excluded. We propose to accept this Amendment, in the same way as the last, by embodying it in a new Clause. My answer to the hon. Member for Dudley (Mr. Wigg) is also identical with my last answer to him, as that itself was identical with the one that went before: it will be included in the Schedule, and we shall see that the amended definition does make sense.

In view of the Secretary of State's assurances, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed: "That the Clause, as amended, stand part of the Bill."

There is a point I should like to raise on the words we have now put into the Bill. It is on the question of the way in which the words go together, and I hope the Committee will not think it is too fanciful. The words read:

"pirates and all persons engaged in armed operations against any of Her Majesty's forces."
There is a real problem of international law to be considered in the case of Chiang-Kai-shek and China in regard to this matter. When we are dealing with the enemy and active service, we make any contacts, in certain circumstances, with such persons a matter that may involve the death penalty.

There is no doubt at all that under international law, in so far as General Chiang-Kai-shek interferes with any British ship, he is a pirate. I do not want to weary the Committee with any long extracts, but people generally accept Oppenheimer as the classic on this sort of thing. Oppenheimer says that where, during a civil war, men of war join the insurgents before they have been recognised as belligerent powers—we do not recognise Chiang-Kai-shek—it is evident that the legitimate Government—from our point of view, the People's Government of China—would treat such ships as pirates, but third parties ought not to do so so long as these vessels do not commit any act of violence against ships of those third parties.

Then he goes on to discuss a question discussed in a long debate in this House—the Peruvian ship that stopped a British ship during a civil war in Peru and which the British admiral, de Horsey, proceeded to torpedo, later, as a reprisal against an attack. This action was defended here with great brilliance by the Attorney-General of the day on the ground that the Peruvian was a pirate.

If Chiang-Kai-shek is stopping British ships and carrying them into Formosa—as we all know he is doing—when he is not recognised by this country as a belligerent, it is, without doubt, under international law an act of piracy. Once you reach that stage, you are involved in a position where anybody who discloses, say, the countersign or anything of that kind is committing an offence for which he could be executed.

I do not want to press this now, because it is a difficult point of law. It is also a point that ought to be looked at with some little care, because we are getting ourselves in a terrible mess here, from the international and legal points of view. We are allies of the Americans who have recognised Chiang-Kai-shek, but, at the same time, we say that somebody who deals with Chiang-Kai-shek may be subjected to the death penalty, because we have included in the Army Act a definition making these people pirates. It should be looked into at a later stage in a little more detail to make certain that our definitions do fit in with the actual facts of international life.

I raise this point now, because the Amendment which has been made to include these words is designed to deal with the current situation. Of course, there ought also to be an Amendment to leave out "pirates" in order to deal with the Formosan situation. Therefore, this is quite a practical point—and I am glad to see both Law Officers here—which needs attention.

Perhaps I may revert for a moment to the question that was raised in discussing the Amendment moved by the Secretary of State on the definition of the word "armed". I am sorry that a genuine question, put perfectly courteously, as I thought, and with a real intent to elicit information by my hon. and learned Friend the Member for Northampton (Mr. Paget) and myself, elicited no answer whatever from the Government Front Bench. This is a matter of substance.

But we are discussing a word which is now in the Clause, Sir Charles. The Committee passed the Amendment, the Clause now says "armed operations," and one is entitled to inquire what the word "armed" means.

The importance of this arises from the fact that the Secretary of State brought forward the word "armed" and had it included in the Clause with the unanimous consent of the Committee to ensure, as he said, that the Clause would not cover the use of troops in industrial disputes. It does cover the use of troops in industrial disputes if the word "armed" means as you, Sir Charles, and I would take it normally to mean—armed with firearms. If it does not mean that, the very point of the change in the Clause and of the wording which we now have in the Clause is not meant at all.

If a workman in an industrial dispute leaves his factory with a handful of bolts in his pocket which could be used as missiles and he is thereby considered to be armed, the point which the right hon. Gentleman has sought to introduce into the words of the Clause has not been obtained. I should have thought that one of the occupants of the Government Front Bench would seek to give an answer to a genuine question, put courteously and in a desire to elicit information.

I should like to press the matter which my hon. Friend the Member for Reading, South (Mr. Mikardo) has raised.

I was waiting to answer at the end of the hon. Members' speeches, but I can certainly reply now. In addition to the expressions "armed mutineers," "armed rioters" and "armed operations," the word "armed" appears in many places in the Army Act, and I do not think one is capable of giving a precise definition of what constitutes the arming for the armed rioter, the armed mutineer or the armed operations. It must, in each case, be a question of degree and of fact.

What the hon. Member is concerned about is the relationship of that to an industrial dispute. We have done, as my right hon. Friend said, what we can to meet that point and I think we have gone a long way to meet it, even if we have not been able completely to solve the problem, and for this reason. The presence of:
"armed mutineers, armed rebels, armed rioters, and pirates"
within the definition of the section will not have any effect on those who are armed as the immediate result. The effect will be to put troops on active service if they are engaged on operations against them. It is only a significance for making it "on active service."

I do not think that there will be any difficulty in deciding whether the operations are armed operations or not. I do not think it is possible to give a precise definition to the word "armed." That might lead to more difficulties and confusion than if it was left to have its ordinary, natural meaning.

The hon. Member for Maldon (Mr. Driberg) questioned whether it was possible to define "operations" and whether that would not overcome the difficulty. We will certainly consider that, but I feel some doubt whether it will be possible to arrive at a definition which gives greater precision and does not complicate the issue still more. I feel that both sides of the Committee are in entire agreement about what we want to achieve, and we shall certainly see further whether we can make any improvement. I think the fears of the hon. Member for Reading, South (Mr. Mikardo), are slightly unnecessary, or at least I hope they will prove to be so; and I hope the Committee is satisfied that we shall do our best to meet this point.

12.30 a.m.

May I press the Solicitor-General further on the definition of the word "enemy," because it does not only affect the definition of "active service?" Section 4 (4) of the Act states that every person subject to military law who:

"assists the enemy with arms, ammunition, or supplies, or knowingly harbours an enemy not being a prisoner …"
is committing an offence which:
"shall, on conviction by court-martial, be liable to suffer death, or such less punishment as is in this Act mentioned."
If we include a pirate within the definition "enemy," Chiang-Kai-shek is a pirate, or his troops are pirates. If the Governor of Hong Kong were to be so foolish as to entertain a Chiang-Kai-shek emissary he would be liable to the death penalty, under this drafting. I do not think that is good drafting. It would be a reprehensible act for any Governor to have dealings with Chiang-Kai-shek emissaries, and I do not think the Governor of Hong Kong would have any, but if he did, to my mind a penalty of a few years imprisonment would be more appropriate than death. My hon. and learned Friend the Member for Kettering (Mr. Mitchison) produced the case of Pilot Officer Pendulum in the debate on this Bill—

I also remember the hon. and learned Member for Kettering (Mr. Mitchison) describing good lawyers and bad, and with his view I heartily agreed. The hon. and learned Member must realise that there is the great advantage that Pilot Officer Pendulum can be detained on probation to ensure that justice is done without inconvenience to him or anybody else.

I am glad the hon. and learned Member produces that point because some of his hon. Friends, not understanding the Act, might have been led astray. I was referring to Pilot Officer Pendulum. May I go on to refer to a higher officer, General Post, who occupies posts of various sorts from place to place? Suppose he is attached to the United States Forces and finds himself, for good or ill, obliged to disclose to Chiang-Kai-shek, directly or indirectly, the countersign or password. We have a mass of difficulties in the Act and if we do not clean them up where will we be?

It may be said that all this is nonsense [HON. MEMBERS: "Hear, hear."] I quite agree. That is why we should not incorporate it in the Act; and when it is suggested it should be cleared up by an inter-Departmental committee it seems to me that people have not gone far enough into the matter. These officers might be instructed by the party opposite to get into touch with Chiang-Kai-shek and I do not see why they should be subject to the death penalty because hon. Members opposite cannot be bothered to discuss the Army Act at a reasonable hour of the day.

I say that "enemy" affects all Sections of the Act and one must not have dealings with an enemy. One must not have dealings with a pirate. That is clear, and if the Solicitor-General does not accept that I am ready to give him a ruling on the subject by a predecessor of his when he was dealing with the sinking of the "Huascar," in which he pointed out this was such a proposition of international law that nobody who was recognised as a belligerent and interfered with a British ship was responsible animo furando.

Well, furandi. If I have not the facility to pronounce it at this time of night, the Attorney-General knows what I mean. The position is that it is quite clear that Chiang-Kai-shek is a pirate and, under these circumstances, it does not seem to be desirable that we should put in a Clause which makes any dealing with him an offence punishable by death. It is more suitable to have some lower and more proper penalty.

The hon. and learned Gentleman is repeating the argument which he put earlier in his speech.

I did so because I did not think that the Attorney-General appreciated it, but now I think he has done so, I will leave it at that and I hope I shall have a reply from him or the Solicitor-General.

Question put, and agreed to.

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