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Clause 5—(Power Of Certain Officers To Take Affidavits And Declarations)

Volume 498: debated on Wednesday 2 April 1952

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I beg to move, in page 4, line 3, to leave out from "forces," to "(hereinafter," in line 4.

The purpose of this Amendment is to enable officers below the rank of major to take affidavits and declarations from persons serving in the Forces of the Crown outside the United Kingdom. I am well aware that this provision seeks to incorporate, in legislative form, a very useful provision which was first introduced by virtue of the Armed Forces (Administration of Oaths) Order, 1940. It so happened, at that period during the war, I was connected with a legal aid scheme and in that capacity I had occasion to deal with many thousands of the documents to which reference is made in this Clause. It was a very great boon to Service men to be able to put in affidavits or declarations without having to find a solicitor or a commissioner of oaths. That would be difficult in some of the theatres in which these men were serving.

It seems to me to be quite unnecessary that the same provision should be repeated in this Clause, which does not allow an officer below the rank of major to take an affidavit or a declaration. It is clear that a major does not necessarily have a more profound knowledge of the law than a captain, or that a captain has a much more profound knowledge of the law in relation to affidavits and declarations than a subaltern. In these circumstances it is suggested as reasonable that any commissioned officer ought to be able to take an affidavit or declaration.

It may well be that in conditions of service in Korea or Malaya a private or an n.c.o. may have the most infrequent occasion to see his major. It may be far more convenient for him to have the opportunity of contacting his immediate officer, and this would help him to complete the necessary transaction without, perhaps, having to travel miles back to battery H.Q. or regimental H.Q. In these circumstances, I do not think that the Government are taking any undue risk if they decide that the Amendment should be accepted.

I want to adduce just one more argument in favour of the Amendment. During the war it was, unfortunately, necessary, in quite a number of cases, to assist British prisoners-of-war in Germany with their divorce proceedings or other like legal proceedings in which they might have been involved. We found that the camp leaders rendered the most valuable services. Special provision was made to enable camp leaders in those British prisoner-of-war camps to witness or take affidavits or declarations. Those camp leaders were normally w.o.1's or w.o.2's. Those camp leaders did their job in this particular regard with really remarkable efficiency once they were given just the elementary basis on which to work. Some of those w.o.1's carried out their duties in this matter quite as efficiently as any officer of field rank to be found in any other part of the world.

In these circumstances I hope that the Government will find it possible to accept this not unreasonable Amendment. I think they would not be taking any undue risk if they allowed any officer of the Regular Forces to have the privilege of taking affidavits or declarations. I hope that this statement will not be held against me, but affidavits and declarations used to come in during the war, and the jurats and attestations were often so illegible it was not always possible to be quite sure of the rank of the officer at all. In come cases, anyhow, I have reason to believe, the attesting officers were only lieutenants or captains. Their signatures were so illegible that the officers before whom the documents eventually went could not possibly have been quite certain that the officers who signed the affidavits were of the rank of major or above.

The Amendment will be a very great convenience to Service men if they are not to be put to the additional difficulty of having in some instances to travel long distances before finding officers of field rank, and I hope the Government will accept it.

I am rather disturbed that we hear so much the views of officers. As my right hon. Friend the Member for South Shields (Mr. Ede) said last night, he and I are the only two Members of the Committee who have served in the Forces and who did not reach commissioned rank in either of the two Great Wars or at all. So the preponderence of argument on almost every Army question is with the point of view of the commissioned officers.

I hope that, when we are looking at the revision of the Army Act, there will be adequate representation of the point of view of the private soldier and the non-commissioned officer. The signing of affidavits is to be brought down to the rank of subaltern, but why not bring it down to the rank of warrant officer? Probably the warrant officer would be far more in contact with the men than the subaltern. Why not bring it down to the chaplain? I do not know whether he has any rank, but he is a kind of semi-commissioned officer who might be brought into this job of signing affidavits. Why not the orderly room clerk, who is usually a sergeant or a corporal and in close touch with the men?

Let some of my hon. Friends on this side not insist so much on the rights of officers, but have a little more to say about the rights of the private soldier and the people below commissioned rank.

12.45 a.m.

Perhaps it would be for the convenience of the Committee if I were to say a little about this matter now, and attempt to stop what looks like an incipient split between the hon. and gallant Gentleman who moved the Amendment and his hon. and gallant Friend who supported it.

I cannot advise the Committee to accept this Amendment. It is perfectly true, as has been said, that this makes permanent what has been going on since 1940 under an Order. It has worked perfectly well. I have made inquiries to discover whether any flaws had shown themselves in this matter in the many years during which great calls have been made on the facilities made available in this way.

The hon. and gallant Gentleman made comments about convenience, but I think the Committee will agree that the whole purpose of this Section is the convenience of the troops and their families. A considerable amount of convenience will be afforded them by avoiding the necessity for witnesses, travelling and the cost involved which would be the case if these facilities were not there, but I think there is a limit to the amount of convenience that we must search out if, in fact, we find that what is going on just now is working well.

Officers of field rank are not very difficult to find. There must be very few places in the world where, if there are bodies of troops, an officer of field rank is not very close by. It is not just a question of our doing this to carry out the task of signing affidavits, and so on, but that the whole process, it seems to me, has to be invested with a certain importance and gravity, and that it is emphasised that this right is treated in the civil courts under the ordinary law of the land.

I understand, for example, that only certain members of embassies are allowed to administer these matters, and they are fairly high in the embassy ranks. I understand further that only after a solicitor has served for a number of years can he be appointed a commissioner for oaths.

It would be a different matter if this were not already working satisfactorily, and I should be much more willing to listen to the hon. and gallant Gentleman's submission, but, as it has worked for a number of years perfectly well, I must advise the Committee to reject the Amendment.

I hope we shall look at this again, because there seems to be some contradiction. An officer below field rank can be president of a court-martial, or in some circumstances even a convening officer or a reviewing officer, as the Attorney-General knows. His most important function is perhaps that of president of a court-martial, because there he administers the oath. It seems to be something of a contradiction that, while he can administer the oath for a man to give evidence in front of him, he cannot recognise an affidavit, which may be signed in front of him, as evidence before him in the court of which he is president.

If that situation is to exist, we may have to consider, when we come to the court-martial proceedure, whether there should not be a rule that nobody below field rank should be president of a court-martial. But that is not the rule at the moment, and it seems that the man who can administer the oath cannot even witness it.

The hon. and learned Gentleman will agree that it is very unusual to find a man below field rank as president of a court-martial, even in war-time.

But it is unusual. This procedure has worked well and there is something to be said for keeping it as it is. When affidavits are sent back to this country, one is entitled to place great reliance on them, and it may be that more care will be taken in the preparation of the affidavit and in what it contains if the man knows it is going to be sworn before an officer of field rank.

There has been no difficulty whatever in the machinery, which has worked extremely well, and reliance has been placed on it. If it could be shown that there had been real difficulty in obtaining evidence by affidavit or declaration, there might be some argument for lowering the rank, but that argument has not been advanced. It is an improvement to replace the Regulation which has been in force since 1940 by a permanent statutory provision, but I think we should be running a risk if we made an alteration in the system which has worked so well.

This is how it works in practice. A sergeant or petty officer brings a chap along and says, "Here is a chap who wants you to sign something." The officer says, "Does he? Where do I sign?" He puts on his signature and probably does not even see the man concerned. That is how it is done—that is the weight and authority and solemnity. It may sound all right, but I have explained what happens.

The hon. and learned Gentleman may know how it happens in one unit, but that is not the way it should be done and I am sure that it is not done in that way in many cases.

Is this under Section 174—"Entertainments under Service direction"? The way my hon. and learned Friend put it sounded very entertaining.

Amendment negatived.

If it is for the convenience of the Committee, I suggest that we take the next two Amendments together.

I beg to move, in page 4, line 7, to leave out from "law," to the end of line 10.

The object of this Amendment and the next arises out of some anxiety as to whether, under subsection (2), the category of people who can be given this convenience of swearing in front of an officer is too wide. According to subsection (1), it applies to persons subject to military law—and that, of course, is agreed. The Amendment questions whether we should include persons not subject to military law
"who are employed by or are in the service of … Her Majesty's Forces."
The second Amendment, in page 4, line 7, raises the question whether we should also include people who are neither under military law, nor in service with the Forces, but who accompany the Forces. If one looks at the next Clause one sees that the time and place where the affidavit is taken together with the full name and rank of the officer has to be stated. These are matters which can be taken from the affidavit itself, but the affidavit is not evidence, I understand, that the man is employed by the Forces or that he accompanied the Forces. That, I think, would have to be proved independently.

Does the definition of "accompanying the forces" mean that he happens to be in some town with the Forces? "Employed by" may be a little easier to define, but why should not these civilians swear in front of a consular officer or some other civilian authority? Are we not likely to get into complications by giving a special privilege to people so vaguely described?

There is some force in this point. In the affidavits and statutory Regulations I used to see that the service details of the person were always set out and it was easy to see whether the person was entitled to swear an affidavit before an officer of field rank. The Under-Secretary said that this Clause puts into legislative form a Statutory Rule and Order which has been in force since 1940, but it did not apply to anything like the number of people that this Clause seeks to cover.

It covered specifically persons subject to the Naval Discipline Act, the Army Act, and the Air Force Act. I find it difficult to believe there can be any circumstances in which persons not subject to military law, who are not employed by or in the service of the troops, or accompanying the troops, can be in any sense of the definition be subject to the Army Act. The Clause considerably widens the original provisions of 1940 to include an indefinite number of camp followers, and goodness knows who they are. If there is a new category of person or persons, then we are entitled to a further explanation if the Government does not propose to accept the Amendment.

1.0 a.m.

Before the hon. and learned Gentleman replies, may I ask a question for clarification? On the face of it, it seems as if this subsection is widely drafted. For example, it would appear to cover in the Canal Zone, before the present disturbances began, very nearly 100,000 Egyptians who were employed by the military authorities in that area. Does it mean that, although no one is in any way subject to military law, they could take advantage of this provision? Is it intended to cover people employed as unskilled labourers having no connection with this country except in so far as they are bound by a contract of employment?

I think the right hon. and learned Gentleman will appreciate that this provision is of great advantage to British subjects for use in the courts here and, it may be, later for use perhaps in other courts. It makes it possible to obtain evidence without bringing a witness to the court. If the words covered by the Amendment were left out it would mean that the only people who could swear these affidavits, which might be required by other parties, would be those actually subject to military law. We think it right that this power to swear affidavits and make declarations in this fashion should cover those employed by or in the service of or accompanying Her Majesty's troops.

The word "accompanying" means families. There is no difficulty about that. If we restricted this Clause, it would mean that whereas we could take an affidavit to prove a perfectly formal matter from a soldier, if the soldier's wife had been there and seen the incident happen and not the soldier, we could not get an affidavit from her. That would be a pity.

To take the example of the Canal Zone, which the right hon. and learned Gentleman mentioned, it might be a great advantage—perhaps in the case of divorce proceedings in this country—to get affidavit evidence from, say, one of those Egyptians if employed by Her Majesty's Forces. It would be a disadvantage if the Clause were narrowed by the acceptance of either of these Amendments.

What about civilians with whom soldiers may be billeted? I suppose they could be described as coming within the terms of this Clause as being in the service of or accompanying Her Majesty's troops? If civilians here who lead their normal lives may be subject to military law as well as to civilian law, surely the Clause is too widely drawn? It might even include civilians outside the United Kingdom.

This Clause makes no one subject to military law and it applies only to places outside the United Kingdom. In answer to the other question put by the hon. Member for Thurrock (Mr. Delargy), if one is billeted in a house it does not mean that the landlord or owner of the house becomes one's servant.

The hon. and learned Gentleman made a reference to British subjects. Did I understand him to indicate that it was intended that the benefits of this Clause should be limited to British subjects? I should have thought that, as it stands, it does not.

I was endeavouring to indicate the way in which the Clause would operate. As the hon. Member will appreciate from the Clause, it is of general application.

Amendment negatived.

Amendment proposed, in page 4, line 9, leave out "or accompany."—[ Mr. Paget.]

Amendment negatived.

I beg to move, in page 4, line 10, at the end, to insert:

Provided always that such persons are domiciled in the United Kingdom.
This Amendment deals with a rather difficult phrase, namely, "Provided always that such persons are domiciled in the United Kingdom." The difficulty is that the vast majority of these affidavits are dealing with divorce or property matters. So far as divorce matters are concerned, the law which is applicable is that of the domicile of the parties. So far as their property is concerned, it may be the law of domicile, or it may be the law of the place where the property is. By our statutes we can only decide what is evidence in our courts.

Where people are led to believe that they are creating evidence, but are not, in fact, creating a document which will be evidence in the court which has jurisdiction in the matter, a great deal of trouble and confusion may arise. For instance, an affidavit prepared pursuant to this Act would not be available as evidence in Eire. It would not be evidence because of this Statute. When we make an affidavit evidence, we can do so only in our courts. It would not be evidence in the courts of Eire or of France.

I feel that we ought to confine ourselves to people whose normal home is in England, and ought not to extend it to people whose domicile is outside this country, and who would normally swear before a consul. If they did not swear before a consul because they are led to believe that they can swear before an officer they might find themselves in difficulties.

I think that even at this early hour I have gathered the point which the hon. and learned Gentleman is making in support of the Amendment; but I cannot accept it. When the hon. and learned Gentleman realises the effect it would have, I do not think he will want it carried into the Bill. It would mean that the power of making affidavits and declarations would be so drastically reduced as to rob the Clause of a great deal of its effect. Sup- posing a man wanted an affidavit from an Egyptian or a Cypriot, he could not get it. Therefore, this Amendment would serve no useful purpose. In the Canal Zone I think it may well be more convenient to swear before a major. A major may be more easily found than a consul. Why should the man not have the choice? The Amendment would be a restriction without advantage.

Of all the difficult questions one has to consider fairly frequently domicile ranks high. If the admissibility of an affidavit as evidence is to depend on the correct determination of the domicile of the person who has sworn it, that may lead to situations of difficulty, and to the Clause not being as effective as it ought to be.

We believe that the Clause as it now stands—carrying into permanent effect what has been a Regulation until now, a Regulation that has worked extremely well—will be found to be beneficial to those subject to military law, and to those who accompany them and those who are in the employ of Her Majesty's Forces. I hope I have satisfied the hon. and learned Gentleman that the Amendment would have a very harmful effect, which I am sure he does not want.

I should have thought it desirable to confine this to British soldiers, their families, and English people who are employed or in company with the Forces. But since the learned Solicitor-General expresses these views I beg to ask leave to withdrawn the Amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.

Clause 6 ordered to stand part of the Bill.