SECTION 124.

I move amendment No. 133:—

In line 7 to add after " law ", " on active service ".

I think that there could be no objection because of the side heading: " Capital offences in relation to the enemy."

This amendment is un-necessary. All these offences in relation to the enemy can only be committed if the person concerned is on active service.

I had some little doubt about that. " Active service " is already defined. A person might go over to the enemy when he would not be on active service.

No. According to the definition a person is on active service:

" Whenever he is attached to or forms part of a force which is engaged in operations against an enemy, or

whenever he is engaged in military operations in a place wholly or mainly occupied by an enemy.

" And the expression ‘on active service' when used in this Act in relation to a person subject to military law shall be construed accordingly."

That is perfectly right. A person may not be a member of a force engaged in active operations against an enemy or be in a place wholly or mainly occupied by an enemy and he could go over to our enemy. I think that the intention of the section is that an offence could only be committed when the person was on active service and I want to make that clear. Where there is a doubt—and the Minister's remarks show that there is a doubt—we must remove that doubt. The definition is not sufficient.

There is a difference between active service and a state of emergency, is there not?

I regard the amendment as unnecessary.

A man need be neither engaged against an enemy nor in a place occupied wholly or mainly by an enemy and still commit an offence by going over to the enemy.

Suppose he is neither engaged with the enemy nor in a place occupied by the enemy. Declarations of war are things of doubtful efficacy and rather antiquated nowadays, and you could have a position in which this country was virtually at war and in which there was an enemy. Terrific damage to the country could be done by a staff officer in a confidential position going over and, to my mind, such a gentleman would be worthy of the wall—perhaps more so than the poor private who in the heat of battle went over. On that substantive ground, I think that in this case it would be wise to leave the section as it is.

Amendment, by leave, withdrawn.

Could we deal with the next set of amendments together ? I think they could be debated together and could be put singly.

I move amendment No. 134:—

In paragraph (a), line 2, to delete " goes over " and substitute " treacherously deserts ".

I am prepared to accept this amendment, but I shall have to resist the others.

Amendment agreed to.

I move amendment No. 135:—

In paragraph (b), line 9, to delete " improperly " and substitute " treacherously ".

I have in a number of places put in the word " treacherously " instead of " improperly". The word " improperly " is terribly loose and I think the intention is to cover a person who treacherously sends a flag of truce to the enemy or holds communication with or gives intelligence to an enemy. I suggest that the Minister should accept these amendments.

Having regard to the discussion on Section 123, which we do not want to reopen, is it not merely a question of legal niceties ?

Mr. Brennan

I suggested that to Deputy Cowan some time ago, that Section 123 covered these matters and that the following sections are only details of Section 123.

I would ask the Minister to point out to me if in the similar section of the 1923 Act the word " improperly " is used.

Suppose the Deputy's words were in as well as the Minister's. On the same set of facts, will it not be equally easy for a court-martial to find a man guilty of an offence whether the word " treacherously " or " improperly " is there, having regard to active service conditions ?

If the word " treacherously " were used, the death sentence would be almost a certainty.

It would be harder for the confirming authority to exercise leniency if he were convicted of having treacherously done something. That is a good point, but the point I want to make is that on the same set of facts and evidence and investigation under active service conditions, a court of human beings are going to come totheir decision on the merits and will it not be equally easy for them to bring a conviction within the term " treacherously " as it would be within the term " improperly " ? If that is so, it is a mere wordy futility to insist on the insertion of this word. Added to that, there is what I regard as the cogent point made by the Minister, that if he is convicted formally of a treachery it is going to be much harder for the confirming authority and for the court itself to exercise a discretion in the matter of the penalty than it would be if the word " improperly " were there. We are back again to human values and all the other matters which have been mentioned.

I think the point made by the Minister is a strong point.

It may be strong in its own context, but it is not strong so far as this is concerned. We are providing in this section for a lot of offences, all of which start with the word " improperly."" Improperly " is a word unknown to the law, in my view. In other words, you create an offence without saying what it is, and not only do you do that, but you leave it to some people, to a court, to decide whether it is an offence or not. In other words, a man does not know that what he is doing is an offence. He may innocently and legitimately hold communication with the enemy or he may send a flag of truce to the enemy. If the sending of the flag were done without authority, and he was charged with doing it without authority, I could understand it, but when you use the word " improperly " you create an offence of doing it improperly, and you leave it open to the people who are trying him to decide whether it is proper or improper. I think you are going too far. The conviction in this respect would be serious and the punishment—death or any lesser punishment—is serious. Before a man can be found guilty, he must commit an offence, and the offence is doing something which is wrong; but we do not say the thing is wrong. We say that it is wrong if it is done improperly, and we give nobody any guidance as to what " improperly "is. It is one of the most objectionable forms of alleged offence imaginable.

I would agree completely with you in peace time, but in war time, no.

Suppose there is a group of men in a dug-out who know that in a very short time they will have to go into action against an enemy. The senior man there may begin to talk about the dangers which will confront them and he keeps on talking about these dangers. He may thus improperly delay an action which should be in course of progress. The conduct of that man would be clearly realised by everybody as improper. Generally speaking, " improperly " means without authority. If a man raises a flag of truce without authority to do so he is taking an improper action which may jeopardise his comrades in some other sector of a front. If Deputy Cowan were on a court martial himself the word " improper " would cause him not the slightest concern.

I am comparing Section 124 with Section 32 of the old Act. Sub-section (3) of Section 32 refers to the offence " of treacherously or without undue authority holding communication or correspondence with or giving intelligence to the enemy." That was a clear section. I accept it and I think it is right. But what do we put in here—" who improperly holds communication with or gives intelligence to the enemy ". We had a section in the old Act specifically saying that the offence was the offence of doing it treacherously or without due authority. That has been the offence for 30 years but here it is changed, with the same penalty and punishment, to " improperly." I think, and I say it with all respect that whoever changed that section is tampering with rights and liberties and trying to do something that ought not to be done. For 30 years we have had the old adequate offence there but that important offence is now being changed to " improperly holding communication with the enemy."

I want to draw the Committee's attention to the section which Deputy Cowan has quoted. The offence is " treacherously or without due authority " ; he can be charged with one or the other.

I have said that.

You are putting in the word " treacherously ", but not suggesting " without due authority ".

No, for a simple reason. When drawing up these amendments, I saw the word " improperly " put in for " treacherously " and I inserted " treacherously " for " improperly ". I have no objection to the Minister putting in " or without due authority ". I did not want to reinstate the whole section, but I wanted to draw attention to what I think is a scandalous tampering with the law—changing a serious offence into a footly little thing for which he may still be sentenced to death. The matter is too serious to have that sort of tampering with the law without any cause or jusification for it.

As to tampering, the Bill was prepared by lawyers.

It was drafted by lawyers, and it is now only a case of doctors differing.

My own view is that I would simply put in the word " improperly " the whole way through, but the Minister in the draft has complicated the thing by the use of various words. " Who improperly holds communication with or gives intelligence to the enemy "—perhaps a qualifying word for " gives " might be considered. The Minister might accept Deputy Cowan's amendment No. 137—" or treacherously gives information to the enemy or improperly gives information to the enemy ".

I would let that stand—misbehaves, etc., so as to show cowardice. That is as it was before. It is, however, too serious a matter totamper with the law in the way in which it has been tampered with. It is like the old question of Regulations.

In these circumstances the argument has already been made that that word is as good as another, and that it covers the case more widely. I would qualify " gives " in (c).

I cannot be taken as agreeing to the mutilation of the law that has gone on here by putting in the word " improperly " instead of " treacherously " as in the old Act. Would the Minister agree to take back the section for reconsideration, in the light of what has been said?

I do not think it is necessary. The Deputy has made his case against the section but I do not agree with his views.

Would the Minister not consider a qualification of the word "gives"?

What do you suggest?

Either "improperly gives" or "treacherously gives". It just says "gives"simplicitur there.

"Treacherously" was in the old law. The old law is being mutilated now and I object to that very strongly. It must have been done—I do not want to say anything stronger—without due consideration.

Would the Minister consider amending line 3 as suggested? In regard to (1) the use of the two words puts them in apposition. What is the difference between " improperly " and " treacherously " ? " Treacherously " means that there is some element of deliberate traitorous intent, it carries the idea that the man does it deliberately, with the intent of a traitor. Feeling that would not be wide enough, the draftsman has included the other.

The draftsman. The Canadian draftsman again.

The word " improperly " must connote something wider than" treacherously ". What would such a case be ? He assists an enemy: he could do it by something short of treacherous intent. The question is whether that should be a sufficiently serious offence to be subject to the penalties and sanctions of this section. War is war and active service is active service and any assistance to an enemy is something of a very serious nature, provided there is some wilful intent. It may not go so far as being treacherous or even criminal. Therefore, I would argue for the word " improperly ".

Deputy O'Higgins is here now and this may be Greek to him. We are on amendment No 135 where the section says he " improperly " sends a flag of truce. The amendment is " treacherously " does so. In the old Act it was specifically provided that where a person did a thing " treacherously or without due authority " he committed an offence, but now, to make it easier for convictions, to create new offences, the word " improperly " has been put in and that is a mutilation of the law. Sending a flag of truce to the enemy is like something we used to read about. I have no practical experience of how it works or in what circumstances. According to the type of war we fight, you may have a commander outside Ballina and an enemy there. Something happens and he sends a flag of truce. Some one goes over and there is some consultation—it used to be about burying the dead.

That man on the spot thinks it is the right thing to do. He does not do it as a treacherous thing or with any traitorous intent, but he does it—and then he can be charged with " improperly " doing it; whereas under the old Act he had to do it " treacherously " and the person who put the charge against him had to be satisfied that there was some treachery in it. Where is the sending of a flag of truce covered by the old Act?

The flag of truce is usually associated with an attempt to bring about a surrender or a cessation of fighting. It may be, as Deputy Cowan says, for the purpose of buryingthe dead but that would hardly arise in the case at all. No one is going to suggest, I hope, that a person responsible for holding a particular position should be entitled, at any time he deems it wise, to raise a flag of truce and surrender the position. He might endanger the whole section of the front or even the whole position of the Army. If he did that improperly, surely no one would suggest he should go scot free or avoid even the penalty proposed here.

The flag of truce is an out of date business.

It is a recognised military action, nevertheless. It may be that men prefer to kill each other now rather than negotiate, but the fact remains that raising a flag of truce is a recognised military action and I am sure that, to a great extent, it would be respected if it were raised in battle.

It is strange that with all the rules in Britain they have no such provision.

Is (b) intended to cover a person who improperly surrenders ?

No. We have already decided that that man be shot.

Even parley with the enemy is covered by (c)?

The raising of a flag of truce usually suspends hostilities. The person conveying the flag also conveys some kind of message to the enemy.

Is not that covered by (c)?

No. You could be holding communication by subterfuges which might not be covered by the flag of truce. There might be ways and means of sending certain communications which would not be visible or even known to any comrades of the person communicating.

I would have thoughtthat if I sent a flag of truce I would be either surrendering or parleying or entering into communication and so committing an offence. I do not see how the sending of a flag of truce can be done as an isolated act.

It would suspend hostilities that might be moving in your direction. It might mean that if an officer had continued to hold his position somewhat longer, he might succeed whereas the raising of the flag of truce would immediately bring the hostilities to an end and perhaps damn any chances of success.

Would there be any objection to putting in " who treacherously brings hostilities to an end " ?

The sending of the flag may not bring them to an end.

I had practical experience of the flag of truce in Easter Week. A flag of truce was sent out then and it was respected by the enemy. A certain message was conveyed and the reply was given. That was all under the protection of a flag of truce. When the commanding officer went out to negotiate he went under a flag of truce and hostilities on both sides were completely and entirely suspended while the negotiations were going on between the officer commanding the Irish Army and the officer commanding the British Army. There is no doubt whatever about the effect of raising a flag of truce.

It is up to theenemy. He may stop or he may not. The Minister is making a magnificent defence for this thing that, again, somebody has found in the Canadian Act.

No. The Deputy is obsessed with the Canadian Act. It has got under his skin.

It is all a question of whether we use " improperly ": or " treacherously ".

We have it in six or seven sections. The next section is even more important, as the law is being mutilated. " Treachery " is taken out and " improperly " put in. I am trying to find out in the old Act where there was any reference to a flag of truce.

Is it of such vital importance ?

The word " improperly " is what I am objecting to.

I have made it clear that if we are to substitute for the word " improperly " the word " treacherously " there is only one decision which a court-martial can come to if a man is convicted of acting in a treacherous manner, that is, to impose the maximum sentence.

The section provides that he can get the maximum sentence. He can be sentenced to death for acting " improperly ".

Amendment put.
The Committee divided: Tá, 1 ; Níl, 5.

Tá:

  • Cowan, Peadar.

Níl:

  • Minister for Defence.
  • Colley, Harry.
  • Brennan, Thomas.
  • Hilliard, Michael.
  • Carter Frank.
Amendment declared lost.

I move amendment No. 136:—

In paragraph (c), line 10, to delete " improperly " and substitute " treacherously ".

I have already set out in the general discussion that I object to this mutilation of the law, done without any correct appreciation of its effect.

Amendment put.
The Committee divided: Tá, 1 ; Níl, 5.

Tá.

  • Cowan, Peadar.

Níl.

  • Minister for Defence.
  • Colley, Harry.
  • Brennan, Thomas.
  • Hilliard, Michael.
  • Carter, Frank.
Amendment declared lost.

I move amendment No. 137:—

In paragraph (c), line 10, before " gives " to insert " treacherously ".

The suggestion is that some qualification be put to the word " gives ".

" Who improperly holds communication with or improperly gives intelligence ".

I would be satisfied with that.

I would not. I have pointed out that in the old Act it was an offence if it was done treacherously or without due authority and just to change that to " improperly " is an improper mutilation of the law.

I am on different ground. I think the word " gives " should be qualified.

Surely, if a man gives intelligence to the enemy, it does not want any qualification, does it?

I do not want to go into a long argument on it as I pointed out the futility of law in this case, butthere is a limit to it. I think the word " gives " should be qualified.

I think so, too.

Deputy Colley agrees with me.

Put the word " improperly " before it.

Deputy Colley agrees that the word " improperly " would cover it—" improperly gives intelligence to the enemy ".

I would not object to that. Even though we are taking decisions on these amendments, I propose to submit to our own authorities the statements that have been made here in the course of the discussion so that, although I am rejecting amendments now, the statements will get further examination, in case by any chance any of the arguments brought forward may have some appeal to our legal authorities.

I think that is very fair and that is what I would expect because they may have just considered them without going as deeply into the matter as we have had to do.

Amendment put.
The Committee divided: Tá, 1 ; Níl, 5.

Tá.

  • Cowan, Peadar.

Níl.

  • Minister for Defence.
  • Colley, Harry.
  • Brennan, Thomas.
  • Hilliard, Michael.
  • Carter, Frank.
Amendment declared lost.
Amendments Nos. 138 and 139 not moved.

I move amendment No. 140:—

In paragraph (e), line 14, before " or " to insert " treacherously ".

Amendment put, and declared lost.

I move amendment No. 141:—

In paragraph (f), line 15, before " harbours " to insert " treacherously ".

Amendment put, and declared lost.

I move amendment No. 142:—

In paragraph (h), line 20, before " delays " to insert " and treacherously ".

Amendment put, and declared lost.

I move amendment No. 143:—

In paragraph (h), line 20, to delete " or discourages ".

I cannot see any sense in making it an offence for a person subject to military law to discourage an action against the enemy. A person may do it lawfully. At least he may do it legitimately. He may say it is wrong to attack and he may be charged with an offence because he has the courage to say that.

Could I support Deputy Cowan to this extent, for consideration : supposing a battalion commander calls his officers together. I am purposely going down to what I might call the smaller unit rather than dealing with the problem that could occur on any staff. His officers are together and in conference. I would like to have this point carefully noted because I can see there is a serious practical problem. A particular officer for reasons of his own, in his own sector, has the moral courage to point out circumstances to his commanding officer and presses his point of view to discourage taking positive action, such as a local attack or attacking in a particular way. He may do it from the highest motives of duty. Here is a case where I would take into account the psychological make-up of a commander. A bullying type of commander, who may have very great qualities as a commander but who may have the defects of that as well, may get annoyed. He may have his own confidence slightly undermined, in this case legitimately, by having the errors in his conclusion pointed out, or some modifying circumstances. He may take the human wayout and may proceed to treat the officer who has done this as having committed a misdemeanour. I am not taking it from the legal point of view—although I appreciate the point of the liberty of the individual—I am taking it from the point of view of military exigency—it would be very bad to have something there that would completely prevent officers from doing their duty in the sense of putting up facts of a situation—in other words that this might tend to reduce all officers to the position of " yes-men ", although that is putting it rather strongly. I beg the Minister to consider that aspect of it and to consider whether, from that point of view, Deputy Cowan has not got a point.

If the situation were such as you have described, the officer who had discussed the question with his senior officer would be acting properly and legitimately. The word " improperly " is the governing word. I can hardly conceive a military situation where a number of officers and men are facing possible death and one particular officer is not prepared to discuss the whole situation with his comrade officers. An officer who endeavoured to point out to his superior officer a plan which he believed to be better than the one about to be adopted would not, in my opinion, be acting improperly and no court in the wide world would hold that. Here is a situation I visualise : an officer deliberately delays going into action after he has received an order ; he may produce any number of excuses for the delay; he may hold his men back and tell his junior officers that it is because, for one reason or another, they are not ready to start off. If it is proved that he is doing that deliberately, that he is not carrying out the instruction he has received to go forward, he will come under the sub-section. I suggest again that the word " improperly " is the governing word. In the case outlined by the Chairman, the man would be acting quite within his rights.

I concur with what the Minister has said. The simple remedy would be, as in the case of amendmentNo. 137, to repeat the word " improperly " before " discouraged ". Deputy Cowan goes further.

Suppose that the commanding officer, the second in command, the adjutant and all the staff officers are at a staff meeting and one of the junior officers says : " It would be madness to do this." He is entitled to say it, it is his duty to say it, although he may be comparatively junior in rank. He may say: " If you do this there will be a loss of so many lives ", and he puts forward his argument as best he can. Suppose that he has a stupid commander—and I regret to say that commanders are of all kinds in all armies and you will get a stupid commander from time to time. He says: " I will deal with you. I will have you court-martialled. Put him under arrest. We have a section in our Act to deal with him who ‘ discourages '." The junior staff officer is put under arrest. It is not enough to say that no court would convict him. He may be, perhaps, the best officer in the unit and he is under arrest. The very fact of creating this offence means that he may be arrested. The commanding officer says: " You will not hold me up to ridicule." The officer is put in charge of the provost officer. After that public exhibition no other officer on the staff is going to open his mouth again to offer advice.

How I would draft the section is that I would repeat " improperly " to qualify " delays ". I think that the sub-section should read : " Who improperly delays or treacherously or in a cowardly manner discourages."" Improperly " is the word to qualify " delays ", but Deputy Cowan has a point regarding " discourages " and the type of discouragement which should come under the section, whether it is treacherous or cowardly. I know that the Minister cannot accept an amendment like mine straight away.

We are getting right down to the same argument we had all the time.

Not quite.

Could not the circumstancesenvisaged by Deputy Cowan be regarded as treacherous.

There is always that argument, but the Minister has used the words further down in the section.

When " treacherously " is in the Act that commander will be careful because all the officers there are available to say that there was no treacherous intent. When the simple word " discourages " is in the Act there will be no such thing as " intent " to stop the arrest. My idea is : never create an offence unless there is a necessity for it.

Make it " treacherously, in a cowardly manner or with cowardly intent discourages." That is the way to do it. As Deputy Colley says we are back to the factors which we discussed on Section 123. Is Deputy Cowan pressing the amendment?

I am resisting it.

Would the Deputy take it that there has been a division and that the amendment has been defeated ?

Very well.

And the same thing will apply to the subsequent amendments in this section ?

Amendment put, and declared lost.

I move amendment No. 144:—

In paragraph (i), line 23, before " fails " to insert " treacherously ".

Amendment put, and declared lost.

I move amendment No. 145:—

In paragraph (j), line 25, before " abandons " to insert " and treacherously ".

Amendment put, and declared lost.

I move amendment No. 146:—

In paragraph (k), line 28, before" does " to insert " and treacherously ".

Amendment put, and declared lost.

I move amendment No. 147:—

In paragraph (1), line 31, to delete " or improperly ".

Amendment put, and declared lost.

I move amendment No. 148:—

In paragraph (m) (i), line 36, before " fails " to insert " treacherously ".

Amendment put, and declared lost.

I move amendment No. 149:—

In paragraph (m) (ii), line 38, before " refuses " to insert " treacherously and cowardly ".

Amendment put, and declared lost.

I move amendment No. 150:—

In paragraph (m) (iii), line 40, before " cowardly " to insert " treacherously and ".

Amendment put, and declared lost.
Question proposed : " That Section 124 as amended stand part of the Bill."

I would like to put on record my very serious objection to what has occurred. A law very clearly laid down in Section 32 of the 1923 Act which has been in operation over a period of 30 years, has never been amended in any of the 30 or soamending Acts which have been brought in amending such specific clauses of that Act as was considered desirable to amend and at no time in those 30 years has it been thought necessary to bring in the sort of amendments we have had today. I feel that it is the duty of the military authorities to have regard to the law as it exists and has been found quite suitable. During the emergency when the Army was on the verge of war very substantial alterations were made in the Act at the desire of the military authorities but in no instance did they require such changes as are here. I think it regrettable that the military authorities, simply on the say so of a person who has read the Canadian Act, should have mutilated the law in this way. The British, operating under a similar Act have not found it necessary to make such changes as we have here. This section creates an offence of doing a thing improperly. It does not set out what is proper or what is not proper. It leaves that in the air. But it provides for arrest, trial, court-martial conviction and sentence of death for the offence. This is too serious. I just want to make those observations on the section and I am very pleased with what the Minister has said ; that what has been said here will be considered. When that is done I think that good sense will probably prevail with regard to this section and that all these new artificial offences which have been created will be deleted.

Question put, and agreed to.
The Committee adjourned at 1.30 p.m. until 4 p.m. on Tuesday, 8th April, 1952.