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Earl Howe: I take note of what the noble Lord said. I believe that he made a very cogent point. I am happy to look into the matter further, obviously without commitment, before the next stage of the Bill, and no

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doubt I shall be in touch with the noble Lord either by correspondence or by means of further debate at a later stage.

Lord Williams of Elvel: I am grateful to the noble Earl for that partial reassurance but I have to tell him that, should he not come back with some solution that is satisfactory to me and to the noble Lord, Lord Mottistone, we may feel it necessary to pursue the matter further at a later stage.

Amendment, by leave, withdrawn.

Clause 124 agreed to.

Clauses 125 to 130 agreed to.

Schedule 1 [Enlistment]:

Lord Judd moved Amendment No. 50:

Page 68, line 17, leave out ("well founded") and insert ("proved").

The noble Lord said: I beg to move the amendment standing in the name of my noble friends and myself. I hope the Committee will forgive us for delaying it on this matter but it seems to us that, with the greatest possible respect, the drafting may be somewhat loose. If within three months from the date on which the person signed the declaration he claims his enlistment is invalid it is not the claim that is important. It is whether or not his enlistment was valid or invalid that is the issue. Therefore, the words,

    "the claim shall be submitted as soon as may be to the Defence Council and, if the claim is well founded"

are surely not the point of what the schedule is about. It is whether or not the enlistment was valid which is at stake. Our wording may not be ideal. We would not claim any complete and absolute insight into these matters. We feel, however, that to use the word "proved" would better meet the concern we have expressed than the words "well founded". We shall be very satisfied if, in the excellent spirit of concern and co-operation which the noble Earl has demonstrated throughout our deliberations, he is at least prepared to say that he will examine the matter before Report Stage.

Earl Howe: The noble Lord has made a very interesting point. As he will be aware, the clause is intended to allow a recruit whose enlistment is invalid to be discharged either because the legal requirements of the Act were not complied with upon attestation, or for some other reason. The noble Lord suggests that the wording in the Bill is loose. I shall reflect on what he said and consider the matter between now and Report. I would just say that the effect of the word "proved" seems to raise doubt about the standard of evidence required in the kind of case likely to be involved. The sense of the phrase "well founded" is about right for the level of evidence that should be needed to satisfy the requirement. I am not convinced that substituting the word "proved" makes the matter any clearer. Does it mean "proved beyond reasonable doubt" or "proved on the balance of probabilities"? It seems to me that the current phrase is apt for what is after all an administrative rather than a judicial process.

I should perhaps add that equivalent provision is made in the case of the regular forces; for example, in Section 10 of the Armed Forces Act 1966 in the case of

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the Royal Navy and Section 18 of the Army and Air Forces Acts of 1955 for the Army and Royal Air Force respectively. The same phrase is used in that legislation. The issue therefore goes rather wider than this Bill and I believe that we should, if at all possible, seek to maintain consistency in this case.

I am grateful to noble Lords and, as I say, I shall reflect further on this issue.

Lord Judd: I am very grateful to the noble Earl and I would not want to die in a ditch on the word "proved". The noble Earl demonstrated that he has taken the point we are seeking to make. We are very glad that he will go away and look at it and I am sure that he and his advisers will find a formulation of words which covers the points that he is concerned about and meets the observation we have made. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Schedule 2 [Deserters and absentees without leave]:

Lord Judd moved Amendment No. 51:

Page 71, line 10, leave out from ("he") to end of line 13 and insert ("shall without delay bring him before a Magistrates' Court.").

The noble Lord said: In moving this amendment we are expressing our concern that the Bill is giving a tremendous amount of responsibility to a local police officer, and subjectivity might well become fairly clear in terms of different approaches by different officers. It is a significant matter. It is a question again, as I used the phrase earlier in our deliberations, of justice not only being done but being seen to be done.

On the whole, we on these Benches feel that it would be much better that, where a police officer is convinced that somebody is illegally absent from the reserve force, he should take that person before a magistrates court and for that court to be responsible for dealing with the matter. Otherwise, why have the provision for the magistrates court? Why not just let the police officer in any case deal with the matter expeditiously? It seems to me that if we have introduced the concept of the role of the magistrates court, it would be much better to have a procedure whereby absentees are brought before the magistrates court. I beg to move.

Lord Mottistone: In fairly long experience of naval discipline, I can tell the noble Lord that the Bill as it is drafted answers the problem much better. Whether the man is a reservist or a regular does not matter. It is much better that a serving sailor or soldier should be brought before his own justice in the first instance, because they really know how to handle it.

I shall never forget being the prisoner's friend when two of my sailors were arrested in Hull during the war when they were drunk and singing. They appeared the next day in the magistrates court and I went to defend them. They had a wonderful story about how they thought that everybody would like singing because it was rather dull in Hull. The Committee can imagine the sort of thing. The magistrate loved it. He said, "This is the best case I have had for a whole week. Not guilty." If those same people had been brought before our first

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lieutenant he would have tackled it in a much more sensible way and said, "Don't get so bloody drunk next time" and give them the normal punishment for that sort of offence.

Magistrates' courts cannot handle soldiers and sailors. Many of these reservists are ex-regulars anyhow, but even if they are not they pick up all the tricks and they would run rings round a magistrates' court, probably wrongly, for whatever offence, even desertion. Therefore I believe that to give both facilities is the right answer. If there is not a handy naval or military jurisdiction to put them into, they will have to be put before a magistrates' court. But that is only a second option, as is set out in the Bill.

Lord Judd: At this point the schedule is dealing with something rather more serious than simply getting drunk in Hull. It is being illegally absent. If we really were convinced that it would be better for such things to be dealt with by the service concerned, might it not be appropriate for the noble Lord to put down an amendment on Report eliminating the reference to a magistrates' court?

Our point is that to introduce the concept of a police officer deciding whether a magistrates' court has a role to play in this situation could be quite invidious. In parts of the country police officers might have a rather antagonistic view towards the local Bench. They might have had some failures in terms of cases they had brought before the local Bench of late and they might then decide "Well, we're blowed if we're going to put this before the magistrates; we're going to take this straight back to the service". It is giving a great deal of authority--subjective authority--to the individuals, the police officers, concerned. In that context we applaud the fact that the Government have emphasised the role to be played by magistrates' courts and we are therefore suggesting that this should be the norm.

Lord Mottistone: I shall not pursue this too far. However, with regard to desertion, I was in command of a destroyer going around Australia and we had three sailors who deserted, two of them because they fell madly in love with ladies of ill repute in the places the ship had visited. They were recovered by the Australian police and returned to us. We handled them in a sensible way. That was a very good answer for that sort of thing. The third case was different but I shall not bore the Committee with that now.

Lord Williams of Elvel Shame!

6 p.m.

Earl Howe: The noble Lord, Lord Judd, has raised an interesting point with this amendment. I acknowledge that at first blush the discretion allowed to a police officer might seem a cause for concern. However, if we study the context we can see quite readily that that discretion applies only in the case of deserters who surrender themselves to a police officer. The discretion is not given in the case of deserters who are arrested. Paragraph 2(4) of the schedule provides that they are to be brought before a magistrates' court in every case.

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The effect of the noble Lord's amendment would be simply to require even the most clear-cut case of a surrendering deserter to be brought before a court. It seems much better, I would suggest, to rely on the police officer to sort out the wheat from the chaff. However, it is interesting to note in this context that under Clause 98 someone who pretends to be a deserter or absentee also commits an offence.

This part of the Bill is exactly the same as that in Section 118(2) of the Army Act 1955 and the Air Force Act 1955. That is not just to make a point about drafting consistency because I imagine it would be difficult for the police to operate with different provisions according to the force from which a particular person is thought to have deserted.

I hope that those remarks will serve to reassure the noble Lord that in practice the provisions of the Bill should work effectively and that his amendment is not appropriate to those to whom this part of the Bill applies; namely, those deserters who surrender to a police officer.

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