HANSARD, Armed Forces Bill, House of Lords, 14 Jun 20064.15 pmThe Parliamentary Under-Secretary of State, Ministry of Defence (Lord Drayson): My Lords, I beg to move that this Bill be now read a second time. We ask much of our Armed Forces. They will often be in physical danger. They are given the right to use violent force on a scale not available to others, but we demand that as highly professional Armed Forces they act in a controlled and measured way within the law. Their ability to operate in that way obviously depends on demanding training, but also complete clarity on how they are to act and on whose authority. The chain of command does that in peace and on operations, at home or overseas. The
authority of the chain of command must be credible to those subject to it.
It is critical to the delivery of unit cohesion and to operational I recognise that the present military criminal justice system has rarely been subject to so much scrutiny as in the past two or three years. I will not discuss specific cases today. No one thinks that the Armed Forces should be above the law. Investigations into alleged serious offences on operations will always be difficult for those involved. Those investigations must be professional and independent. Any decision to prosecute for a serious offence should be taken by an independent prosecutor with an understanding of the service context. Any trial of such an offence should be before an impartial tribunal comprising serving members of the Armed Forces, with an independent judge. Of course, there must be proper safeguards and support for those who face investigation and prosecution in the service system. Before I turn to some of the key provisions in the Bill I should like to say a few words about one matter which has been at the forefront of our minds as we have developed proposals in the Bill: the problem of undue delay. At worst, delay undermines operational effectiveness by damaging morale and unit cohesion. We must be rigorous in addressing it. I commend the efforts that the services and the Judge Advocate General are making to tackle delay in the current court martial system. The Bill will allow us to make further improvements, some of which I shall touch on. The Bill defines offences, provides for the investigation of alleged offences and the arrest, holding in custody and charging of individuals accused of committing an offence. It provides for service personnel to be dealt with summarily by their commanding officer or tried by court martial. It retains the right of service personnel to elect trial by court martial and to appeal to the summary appeal court or the court martial appeal court as appropriate. Much
in the Bill is familiar. As my right honourable friend the then Secretary
of State said in another place, it is evolution not revolution. But the
key change is moving from three systems to a single system of service law.
Having a single system enables the proper alignment of discipline and
command instead of relying on ad hoc arrangements for joint
operations as at present. It will mean that all service personnel will Part 1 deals with offences. All offences under the Bill are service offences. They are divided into two types. First are those disciplinary offences that are unique to service law—many will be familiar—such as looting or absence without leave. Secondly, as now, service personnel will remain subject to the ordinary criminal law of England and Wales wherever they are serving. Clause 42 provides for these criminal conduct offences. The disciplinary offences have been reviewed and brought up to date. We have removed certain offences because they are no longer appropriate or are never charged, and are more properly charged under other provisions or dealt with administratively. It is not only the offence of scandalous conduct of officers that has gone. Other examples include allowing sequestration of aircraft or ship by a neutral state in time of war and billeting and requisitioning offences. I turn now to the powers of commanding officers. The Bill provides commanding officers, for the first time, with harmonised powers to deal with all those under command of whatever service. We are reducing the theoretical extensive summary jurisdiction of commanding officers in the Royal Navy. I say "theoretical" because, in reality, they do not exercise them over very serious matters, not least because their powers of punishment are far too limited. But we are increasing the powers of Army and Air Force commanding officers to deal with a small number of additional criminal offences set out in Part 2 of Schedule 1—in straightforward cases, Royal Navy commanding officers already deal with these summarily—and their powers of punishment are increased from 60 to 90 days' detention, in line with those of naval commanding officers now. The exercise of both these additional powers will be subject to the approval of a higher authority. The summary powers of commanding officers recognise the importance of being able to deal with such matters expeditiously, and we are also harmonising the powers of commanding officers to deal summarily with officers up to the rank of lieutenant colonel and equivalent, subject to certain conditions. Part 5
of the Bill sets out the duties of commanding officers in respect of
allegations that serious offences have been committed. It provides in
Clauses 113 and 114 that for specified, inherently serious offences and
those committed where certain prescribed circumstances apply, the
commanding officer will be required to inform the service police as soon
as practicable. The service police, who may already be investigating the
matter, are in turn required to refer the case to the independent Director
of Service Prosecutions if they think that there is sufficient evidence to
charge one of these offences. The Director of Service Prosecutions will
decide whether to bring charges, on the basis of the proper tests and a
real understanding of the military context. However, we have taken specific powers to ensure that the decision whether to charge and what charge should be brought is not made without the commanding officer knowing what is going on and having the responsibility of ensuring that the director is aware of any facts which the CO thinks may be relevant to the decisions which the director will be taking. It is worth giving a categorical assurance on that point. The power for the commanding officer to be kept informed and to provide to the prosecuting authority any information that he thinks is relevant will be set out in regulations under Clause 127. In particular, I draw noble Lords' attention to Clause 127(2)(e), which contains a power to require, "prescribed persons to be notified of prescribed matters". It is sensible to do that because commanding officers might have valuable information that could assist the prosecuting authority in the tests that must be applied before proceeding to charge individuals. We expect that COs will do this. They will see it as part of their duty to the individual and to the interests of justice to do so. Their training will reinforce that. Under the existing legislation, there is provision in regulations for the commanding officer to submit to higher authority any information that he has which, in his opinion, may be material to the institution of court martial or other proceedings. That applies after the charge has been brought. The Bill gives us, for the first time, the opportunity for the prosecuting authority to have information on the service context before a charge is brought. At present, the commanding officer also has a power to dismiss a charge—whether for a serious offence or not—without any form of hearing of the evidence. Under the existing law, the result of such action is that, even in very serious matters, no further proceedings may take place in the military system. No decision on the case can be taken by the independent service prosecuting authority, and the evidence is never tested. That is not necessarily the end of the matter because, at present, where our civilian courts also have jurisdiction, the civilian authorities may then take action. The jurisdiction of the civilian courts may come into play as a result of the services themselves being prevented from taking any further action on the matter through just such a technicality. We want to address that. The
Bill will therefore ensure that the Director of Service Prosecutions will
decide on serious cases, and that on serious cases a commanding officer
cannot prevent further action by the services themselves, so we are
removing the CO's power to dismiss charges without any form of hearing. I
know that some see this as undermining the chain of command. I do not
agree. It is simply wrong that, where there has been sufficient evidence
to charge a soldier with a serious offence, the commanding officer can
simply decide, without any hearing, that the soldier will not be tried for
that offence, and that his decision then prevents any further As General Sir Mike Jackson said in giving evidence to the Select Committee on the Bill in another place: "I would find it very hard logically to argue why a Commanding Officer should retain, or even have in the first instance, the power to dismiss a charge with which he cannot himself deal; that seems to me to be a matter that should properly go to court martial, for the evidence to be tested there". If we believe that service personnel are not above the law, as long as commanding officers have these powers the services will be open to the recourse to civilian law as in the Trooper Williams case. All offences can properly be dealt with under service law. The court martial is, and will remain, an ECHR-compliant court. We think it right that even the most serious cases should be resolved within the service system once proceedings have begun. Clause 115 puts a clear duty on commanding officers to ensure that allegations of other, less serious offences are appropriately investigated. That is an objective test. These offences make up by far the majority of those committed by service personnel. It does not necessarily mean that the investigation has to be carried out by the service police. It is for the commanding officer to call them in if it is appropriate. Some 95 per cent of matters are dealt with summarily now and we expect that to be the same under the Bill. I want to make it clear that, in the conduct of investigations, the service police work independently of the chain of command and of Ministers. They do a professional job, sometimes in the most demanding, difficult and dangerous circumstances. The Bill reinforces their relationship with the Director of Service Prosecutions in a similar way to their civilian counterparts. This should help to improve the quality and timeliness of investigations and reduce delay. Where the commanding officer is considering what action to take in respect of the offences over which he has powers, he will of course, as now, have legal advice available. Under the Bill, as now, he may choose to deal with the offence summarily, or he may decide to refer the matter to the prosecuting authority because he does not wish to exercise his summary powers and believes a court martial would be more appropriate, or he may discontinue proceedings. But that would not prevent further action by the services at a later stage, if it were justified. If the
commanding officer deals with the matter summarily and finds the matter
proved, he will go on to award a punishment. Again, this is familiar.
Where he refers the matter to the Director of Service Prosecutions, it is
the director who will decide whether to bring a prosecution and what the
charge shall be. In all cases tried by the court martial, the Director of
Service Prosecutions will determine the charge but it will be the
commanding officer who formally brings it by notifying the individual
concerned. This is important. It keeps the commanding officer directly
involved. It reinforces his role by implementing his The changes I have already described will bring improvements in speed and efficiency. At the moment, every case must first go to the commanding officer. He looks into the matter. In many cases he will ask the service police to investigate. If he thinks it should go to court martial, he refers it to higher authority in the chain of command. In turn, higher authority refers the case to the prosecuting authority. In another place some concern was expressed about the removal of the power for the Defence Council to review the findings and sentences of the court martial. This is the power for the chain of command to quash the court's finding or substitute another sentence which in their opinion is no more severe than the one awarded by the court. It is non-judicial interference in the decisions of a court martial, which is a compliant court, and it can no longer be justified, especially as there are now full appeal rights to the courts martial appeal court. The Government recognise that removing this power without providing for a "slip rule" to respond to technical errors in sentencing was a lacuna in the Bill. We have looked carefully at how we can rectify this while retaining service input to sentencing. But we wanted to ensure that the military input into sentencing was retained. The Government will table an amendment to achieve this in Committee. It is very closely based on the power of civilian courts under the Powers of Criminal Courts (Sentencing) Act 2000. The Bill creates two military courts—the court martial, under Clause 153, and the summary appeal court, under Clause 139—to replace existing courts provided for under the separate discipline Acts. The court martial will be a standing court and will replace courts martial convened on an ad hoc basis to deal with individual trials. Like the Crown Court, it will be able to sit in more than one place at a time and deal with different cases. It is not a single court in permanent session. The main advantages of a standing court are that it will be more efficient by reducing some administrative arrangements and making it easier to arrange for preliminary matters to be dealt with. We
expect that in the main, service personnel will be tried by courts
comprising members of their own service and that, as now, most matters
will be dealt with by courts comprising three service members and a judge
advocate, but five members or more for more serious offences. In addition,
the Bill creates a service civilian court under Clause 276 to replace the
standing civilian court that was established in 1976. Like its
predecessor, this court may only sit overseas. It has powers equivalent to
those of a magistrates' court when dealing with offences committed by
those civilians who are described in the Bill as subject to service
discipline. For the court martial and the service civilian court, the Bill
creates a more modern and appropriate sentencing regime which primarily
reflects changes introduced by the Criminal Justice Act 2003. I would like to turn to the provisions for dealing with the redress of complaints in Clauses 332 to 335. The rights and freedoms the rest of us enjoy are necessarily restricted in the case of service personnel. I think there can be no argument that, given these special circumstances, they should have a statutory right to make a complaint about any matter that affects them personally. Equally, we are committed to retaining the role of the chain of command in investigating and resolving complaints. We have known for some time that the current provisions for dealing with complaints of individual members of the Armed Forces are not working as well as they should. The chief complaint about the complaint system was the time taken to resolve complaints. But we have to acknowledge other problems with the current system. It is clear that individual servicemen and women have not had sufficient information or awareness about their right to make a complaint and how to go about it. There is too much evidence that individuals have been positively discouraged from making a complaint, or have no confidence that their complaint will be taken seriously, or think that making a complaint will have a detrimental effect on them. These issues were brought into sharp and difficult focus by Nicholas Blake's report. We want to address all these issues in the Bill. We think that the provisions, as they stand, together with a related proposal for a non-statutory but independent review of the redress system, go a long way towards doing this. So what are they? First, the Bill introduces a more streamlined system which will reduce bureaucracy and provide for the majority of matters that cannot be resolved by the commanding officer to pass quickly to a panel outside the chain of command with powers delegated to it by the Defence Council. We have provided in certain cases for a person who is independent of the chain of command, and not a civil servant, to sit on the panel. Whether an independent person sits on the panel will depend on the nature of the complaint; for example, it is unlikely that an independent person will add value if the complaint is about the quality of the food in a mess. But an independent could add value where the complaint is about a course of conduct or type of behaviour that amounts to bullying. A different panel will be convened for each complaint. The senior membership will never be below one star. The panel will have the full powers of the Defence Council for dealing with redress delegated to it, including financial powers. But the Defence Council will almost certainly reserve some matters for decision by the council or the relevant service board, for example, complaints against decisions by a service board or by a very senior officer, of three-star rank or above. These
complaints may include cases where it had been decided that an officer's
service was to be terminated as a result of administrative action, for
example following a civil court conviction, or where a person had disputed
an appraisal report completed by We will extend the role of the external reviewer to enable him to receive complaints directly from a service person or allegations from a family member or other third party. Where that happens, the commissioner will be able to refer the complaint or allegation directly to the right level of the chain of command, usually the commanding officer. That will trigger machinery so that if there is a complaint it will be investigated. Whatever happens, the commissioner will be informed of the outcome of that complaint. We shall table amendments to the Bill to make this appointment of a service complaints commissioner statutory. The commissioner would have direct access to Ministers. He would report annually and the report would be published. We believe that this system preserves the responsibility of the chain of command for investigating and dealing with complaints and allegations while offering a complementary route for complaints to be placed in the hands of the commanding officer. This may be of particular value to those who might feel inhibited from going directly to the commanding officer. A further area where we are harmonising and modernising provisions is in relation to boards of inquiry, or service inquiries as they will be known under the Bill. We think it is essential that the services keep the ability to hold internal investigations with the purpose of establishing the facts about an incident and making recommendations to prevent it happening again. It does not replace a coroner's inquest and is not, and does not purport to be, a tribunal that is compliant with Article 2 of the European Convention on Human Rights. As
now, Clause 339 provides for much of the detail to be made in subordinate
legislation. Again, this is an area on which Nicholas Blake made
recommendations in his report. We agree with Mr Blake that families should
be given as much information as possible about the proceedings and the
findings. Family members may also attend to give evidence. But we would
not wish to extend to next of kin or their representatives a statutory
right to attend such inquiries, or to hold such inquiries in public. This
would change the character of the inquiry, which is internal and focused
on preventing a recurrence of the incident or accident, and would confuse
the purpose of an inquiry with that of an inquest or court of law. As a
result, a right of attendance would give rise to expectations which the
inquiry would not always meet. We also have a concern to ensure that there
are no inhibitions on witnesses that might affect the frankness of
evidence. There are practical concerns, too, given how inquiries are
conducted often very quickly and overseas. We also accept that there may
be circumstances in which We ask an enormous amount of the men and women of our Armed Forces, regular and reserves, and their families who support them. We place particular trust in commanding officers and the chain of command, as do those under command, and we take pride in the exemplary way in which they conduct themselves, sometimes in very difficult and dangerous circumstances. I think that we all share a common purpose. We want to provide the Armed Forces with a fair and modern service criminal justice system that will better support the way in which they train and operate today. I have mentioned two areas where the Government intend to bring forward amendments. We expect to table a small number of other amendments to clarify or improve existing provisions. I shall ensure that noble Lords are given these in good time. I look forward to the detailed scrutiny that we shall give the Bill in Committee and I commend it to the House. Moved, That the Bill be now read a second time.—(Lord Drayson.) 4.46 pmLord Astor of Hever: My Lords, I thank the Minister for explaining what the Government seek to achieve by bringing forward this Bill. With a few important exceptions, we welcome the Bill. It has been very helpful to us during our consideration of the Bill to have had such clear Explanatory Notes, and the Minister and his colleagues are fortunate to have been so well supported by an excellent Bill team. The Bill has been changed and improved since its original introduction in the other place, and a number of sensible amendments proposed by my honourable friend the Member for Aldershot, as well as some unhelpful ones proposed by others, were resisted. We look to persuade the Government to change their mind here on some at least of the former and congratulate them on their resistance to the latter. As stated yesterday by the Minister for the Armed Forces, we in this House expect to be presented with further government amendments to provide for a services complaints commission; the Minister has just mentioned that. These amendments, when we have them, will be a qualified and partial step towards meeting the recommendations of Mr Nicholas Blake QC, arising from his carefully considered report on the distressing events that took place at Deepcut barracks. The assessment by Mr Blake and others of the important and difficult issue of harassment was accepted by the Government, but they have none the less avoided proposing legislation that might help. We have therefore prepared further amendments addressing that important issue. Similarly, the Government claim to have accepted Mr Blake's recommendations in relation to the "independent assurance" of, "the military justice system and the military complaints system".
However, we want to know why the commissioner will not be embodied in the military system. We believe that it is essential that his appointment does not undermine the chain of command. Instead, the Government have expressed their intention to establish these military assurance and inspection systems under the civil Police and Justice Bill. Can the Minister clarify the Government's thinking on this point? In our view, military justice must be a wholly distinct and different process of its own. Thus the procedures for the assurance and inspection of the system must be properly and distinctively entrenched in military law—that is to say, in the Bill before us. At this stage, I shall make two points arising from Deepcut. First, both the government amendments and our intended amendments are a new area for consideration and scrutiny. Their terms have not been considered in the other place, so a particular duty falls on your Lordships' House to scrutinise them carefully. The second is that, by definition, they set out to change the present law as it is and as it was understood to be. Fortunately, this last consideration does not apply to much of the substance of the Bill. Its general purpose and effect is to re-enact in a consolidated form the main provisions of the three single service discipline Acts. This is a necessary thing to do and one that is seriously overdue. The old Acts had been so frequently and extensively amended that they had become unworkable and indeed unacceptable as foundation documents. That the special constraints and duties that apply to all members of the Armed Forces and to those civilians who live and work alongside them should be set out in a single coherent body of law is reasonable provided that the terms of such a body of law sensibly recognise that some circumstances alter cases. Nevertheless, there are fundamental differences between each of the services, and the Select Committee in the other place did recommend as a result of taking evidence that courts-martial panels ought to be composed of a majority of personnel of the service of the accused. It is surely self-evident that those of our fellow citizens who serve as members of the Armed Forces are exactly that—members of a lawfully armed and disciplined force. They have in appropriate circumstances to use force, including as necessary lethal force—a lawful power and duty in fact to kill. It is precisely that body of law that so authorises them and disciplines them in that exceptional power and duty which we now have before us for our careful consideration and adjustment. One
thread in the debate cropping up at certain points in the Government's
arguments, although heard more strongly from elsewhere, is that the
process of military law should become as far as possible the same as the
processes of civilian law—that an objective should be to assimilate. I
have to say again that this logic—that one size should fit all
circumstances—is not an objective that we share. Our objective is that the
governing document of military law—this Bill when enacted—should properly
recognise the unique features of military duty and should be drawn up and
applied accordingly. Disciplined Armed Forces operate at all times within the law, but a law that clearly and properly recognises the exacting circumstances in which it has to apply. It is this rationale, the separateness of military justice, which will form a continuing theme in the amendments to the Bill that we will propose. We shall focus particularly on the need to protect the chain of command. That is, I believe, a common objective of all concerned with military justice and discipline. The Minister reiterated it in his Deepcut Statement in the other place yesterday. It is the feature of the Bill that has attracted the most attention among those serving today in the Armed Forces who have properly expressed their views to us and probably to many other noble Lords speaking this afternoon. To achieve that objective—a continuing, positive and undiminished role for the chain of command—a number of adjustments will need to be made to the Bill as it has come to us. We are concerned that the Government are eroding the powers of commanding officers. COs have to act. If they do not, they put their entire ship, regiment or squadron at risk. They have to make hard decisions, frequently based on imperfect information. If they get it wrong, they have to suffer the consequences. We cannot allow the creation of a culture in the Armed Forces, particularly the Army, where soldiers are too scared to open fire because they fear the threat of prosecution. British soldiers are trained to react instinctively to events. The Minister will be aware of the survey carried out at the end of last year by the Army within 7th Armoured Brigade in Iraq which found that there is a widespread fear of opening fire and of being investigated for opening fire. Armed conflicts—wars, to use the simple term—are usually conducted against opponents who reject what we see as the rules of civil society. That does not mean that we ourselves should reject those rules, but it does mean that our Armed Forces must be prepared and authorised to operate under rules that recognise that this may be, and indeed is likely to be, the case with their opponents. The job of the Royal Military Police requires diligence and common sense. It is the latter that appears in some cases to have been lost. Every "incident" has to be investigated for the possibility of prosecution, very possibly on the claims of the enemy or of those seeking financial gain. This law must recognise that the incident will always seem clearer in the artificial arena of the court of law than in the split second of reality that it took at the time. That is why we shall seek to insist that the Director of Service Prosecutions should have recent and relevant military experience. I make no apology for expressing my feelings on that with some passion. The
Minister mentioned delays. Recent cases have shown that the existing
system is disgracefully slow. I welcome the setting up of the
Adjutant-General's delay action group, and I know that the
Adjutant-General is working hard to cut down delays; yet very little in
the Bill attempts to speed things up. We shall therefore table an
amendment to chapter 2 of the Bill that sets time limits to proceedings to
the effect that unless proceedings are brought from start of The recent acquittal in the court martial of Sergeant Selman and the other soldiers on charges arising out of an event that occurred more than three years before the trial opened is a striking example of the human dimension of what may, and maybe should not, arise in our system of military justice. It also understandably gave rise to strongly phrased expressions of concern that the acquittals meant that the prosecutions were wrongly undertaken in the first place. The noble and learned Lord the Attorney-General, writing in the Daily Telegraph, has defended the process in equally strong phrases. But it is the duty of the Opposition when a succession of such high-profile cases fail to test rigorously whether, in reaching the decision to prosecute, correct procedures have been established and correctly followed and proper tests properly applied. The Prime Minister said last week that he hoped that lessons would be learnt by the prosecuting authorities. This is not the time or place to go into detail, but I draw the attention of the House to the set of 10 Questions for Written Answers that I have tabled. I hope that they will receive candid rather than shuffling or evasive answers. They go to the working heart of the system that this Bill creates. Another widespread view that has been expressed to us is that the replacement of serving uniformed officers by civilian communication experts—or spin doctors by another name—as public spokesmen for the Armed Forces has led to damaging consequences. We believe that a return to the earlier practice would assist better and more direct understanding of the Armed Forces, and we shall support any suitable amendment in that sense. My noble friend Lord Kingsland will cover the supervisory role of the Attorney-General, and my noble friend Lord Campbell of Alloway has an amendment on that issue. I hope that the noble and learned Lord the Attorney-General will respond on this issue in Committee. He ducked out of our debate last July. Defending the Government's ban on hunting was placed higher on his list of priorities than were the interests of our Armed Forces. Other amendments that we will bring forward include placing the rules of engagement on a statutory basis, which is not the case at present, and giving statutory basis also to the Manual of Military Law. We shall be looking, too, to see whether some of the procedures in military law and justice pioneered in Australia may be of value. We
have a wealth of experience in our speakers' list, from all sides of the
House, and I shall listen carefully to all that is said. I hope that the
Government will do the same—listen carefully, even when they are initially
disposed to disagree, and that, out of our deliberations today and
subsequently, a Bill will emerge that meets our limited, but specific,
concerns, as well as serving the general purposes on which we are all
agreed. 5.01 pmLord Thomas of Gresford: My Lords, I declare an interest as having appeared in a number of courts martial, including some that have been referred to. That inhibits me from commenting on ongoing cases, but it allows me to speak with some practical knowledge of the way in which the current system works and with some ideas as to how the Bill could be improved. We on these Benches welcome the bringing together of all three services in a common code and with common procedure. That should ensure consistency and fairness across the board. In considering consistency, we welcome the appointment of a Director of Service Prosecutions, who should be independent of the chain of command, but, we believe, must necessarily have military experience, so that he can take decisions within the military context. We also welcome the creation of the court martial as an institution. Until now, courts martial have been ad hoc tribunals, set up for individual cases. Now, however, with the building of new court centres at Bulford, Catterick and Colchester, and with the professionalism that is involved in the courts administration officer who already exists and who, no doubt, will be appointed under this Bill, we hope that the terrible delays that have occurred will significantly be reduced. Clauses 55 to 62 refer to time limits for charging within six months of a person leaving the services or ceasing to be subject to service law, but there is still no time limit for the commencement of trial. I was encouraged to hear the noble Lord, Lord Astor, say that his party intends to table an amendment that will set a limit within which proceedings should be brought and the trial commenced. Similarly, we welcome the Service Civilian Court, although I shall return to the matter of civilians who are subject to military law. I pay tribute to the bravery and professionalism of our armed services in all fields of conflict. Carrying out the policies of the Government of the day is a dangerous occupation. It is not abstract or theoretical that the people who carry out those policies do so at the risk of their own lives and well-being. It is absolutely important that, when they do so, they can be confident that they will be treated fairly, both in matters of discipline and in the trial of any alleged criminal conduct. The first essential is that recruits are treated properly. There should be no ill-treatment, harassment, bullying or discrimination. Not only is that harmful to the soldiers themselves, but it inhibits proper recruitment to the armed services. We
welcome the proposals for the redress of individual grievances as far as
they go. Initially, the Government intended that the service complaint
panel should include an independent member and that the complaints process
should be reviewed annually and publicly by the independent external
reviewer. However, the Government have responded rather disappointingly to
the Deepcut review and to representations made in another place by
proposing not that there should be an ombudsman, as Nicholas I also follow the noble Lord, Lord Astor, in talking about the rules of engagement. The trained soldier needs to know the framework within which he operates. The rules of engagement for the invasion of Iraq were to seek and destroy the enemy either by killing or neutralising its forces. That is what the invading forces were trained to do; that is what they were up for. However, no fresh rules of engagement were issued for many months after the conflict was over. That matter emerged in the paratroopers' proceedings last September and October in Colchester. British forces were judged as though they were policemen, subject to all the restraints and training of peacekeepers that one might get in the domestic situation. It is vital that in whatever field our forces operate the rules of engagement are clear and precise and are conveyed to those obliged to perform their duties within those rules. That should be taken into account in decisions to investigate alleged criminal offences and in decisions to prosecute. For the purposes of investigation, let there be no more situations arising where our troops are subject to investigations but where the investigators do not have adequate resources—in money or manpower—to carry out the sort of thorough investigation that the seriousness of the allegations demands.
Turning to the Bill and the "First Group of Parts", no one could object to
the discipline offences listed in Clauses 1 to 41 being tried by the court
martial. These certainly envisage military matters which are undoubtedly
within the experience of the members of the panel: assisting the enemy,
mutiny, desertion, insubordination and so on. What is objectionable is the
inclusion under the "Discipline" general heading of "Criminal conduct",
under Clause 42, which gives jurisdiction to the court martial over any
offence punishable under the law of England and Wales, including the
infliction of punishment. Any offence in the criminal calendar can be
brought as a disciplinary matter under Clause 42. This is not a matter of
discipline. A person subject to military law ought not to be tried and
punished for murder, for example, as a matter of forces discipline. This
has practical implications. Clause 19, which concerns conduct prejudicial to good order and discipline and covers a wide range of behaviour, Clause 20 on misconduct through drink and drugs, Clause 21 on fighting or threatening behaviour and Clause 23 on disgraceful conduct of a cruel or indecent kind are all matters that a military court can properly deal with as disciplinary. So why is it necessary to include the entire corpus of the criminal law within the jurisdiction of the court martial? Another matter that causes me concern, as it has for many years, is the way in which civilians who are subject to service discipline may be tried by court martial. For example, any person who is a member of the family of a serving soldier in a base overseas is subject to service discipline. I recall the case of Martin, which eventually ended up before the Appeal Committee of this House. It was a case in which a 17 year-old boy was charged with murder in Germany. Although he was incarcerated pending the trial in this country, and although his father had left the forces and he had absolutely no connection with the Army at the time, he was flown back to Germany to be tried, at the age of 19, by a court martial of officers with, I think, two civilians from the Civil Service also taking part in the hearing. In his judgment, the noble and learned Lord, Lord Slynn of Hadley, said: "As a matter of first impression it seemed to me disturbing and indeed wrong in principle that a 19-year-old civilian, albeit the son of a serving soldier at the time of the murder he was alleged to have committed in Germany, who had with his father returned to England more than a year before trial, should be sent back to Germany for trial by court-martial and thereby be deprived of the right, or at the least of the opportunity, of trial by jury". The Appellate Committee unanimously held that, if Parliament had said that a 17 year-old boy was subject to service discipline and could be tried for murder in Germany, it could not be described as an abuse of process. But the noble and learned Lord, Lord Slynn of Hadley, said that it was disturbing and wrong in principle, and the noble and learned Lord, Lord Hope, said that it was quite inappropriate. It is matters of that sort that I shall endeavour to discuss with your Lordships in Committee. There are other matters of procedural drawbacks that I think we will also have to discuss. With regard to the composition of the court, I disagree with the suggestion that a soldier should be tried by Army officers and warrant officers and not by a mixed pool. It seems to me that if we are bringing the services together and creating one single body—the court martial—it is appropriate that the panel should come from all the services. That would help with consistency and perhaps it would help to break down the tensions between the various services if a person were tried in that way. I appreciate that there are differences between the services, but a panel of officers and warrant officers should be able to deal with the matter without prejudices of that sort.
Another matter that I think we must consider is the number of members of
the tribunal—whether it should be three, five or, in serious cases, as
now, seven. Again, one has to compare that with the jury in the Crown
Court in this country, which has 12 members. If the Another matter is sentencing. A jury does not sentence in the Crown Court; it plays no part in it. However, the responsibility for sentencing in a court martial rests not with a judge but with the tribunal. The judge plays a part; he has an equal vote with the members of the panel, and a casting vote if they are equally split. However, we are dealing with a new world. The Bill introduces community sentences. Unlike for magistrates, there is no training in sentencing matters for court martial panel members. I shall suggest to your Lordships that the Bill be amended so that sentencing should be by judge alone, or at least with an assessor. The service input into sentencing is fine when you are dealing with disciplinary matters but, if you are going to deal with serious criminal conduct through the court martial system, the judge should decide the appropriate sentence. This is a large Bill and there is a long way to go. I hope that, at the end of it, we will produce for military people a system of justice that they deserve for the great service that they afford to us all. 5.16 pmLord Bramall: My Lords, it is already clear that there is a good deal to discuss in this comprehensive new Bill. I will concentrate on just one aspect: the responsibility of the commanding officer and the chain of command in the disciplinary system. As many noble Lords will no doubt agree, the Government have shown quite a propensity for committing our Armed Forces to conflicts which, perhaps predictably and at an early stage, develop into a twilight zone of combat. Although it may not be consistent with all-out war, it can impose on our servicemen the same pressures and need to take instant life and death decisions because insurgency and terrorism flourish, making it difficult to differentiate between friend and foe. At the
same time, because of the full glare of media interest and scrutiny that
this phase attracts, to say nothing of the disgraceful activities of
ambulance-chasing lawyers, there is more pressure at home and abroad to
initiate legal proceedings against our servicemen who may be thought to
have exceeded the The Bill must therefore be carefully scrutinised against this background. I believe, as do many of my noble and gallant friends, that the key to this lies as much with the responsibilities of the commanding officer and the chain of command as it does with the military prosecuting authority, often far removed from the scene of the action. Although the prosecuting authority—essentially a military stand-alone authority with a military director—must have the final say on whether charges for serious Schedule 2 offences should be heard at court martial on the basis of whether a conviction would be possible, the commanding officers and their immediate superiors are most likely to have the best knowledge of the actual circumstances at the time. Moreover, morale, commitment, steadiness under pressure and, indeed, inspiration and confidence to perform duty to the utmost, depend largely on the leadership and authority of the commanding officer in the various different environments. As the noble Lord, Lord Astor of Hever, said, the commanding officer must remain a key figure in the morale and discipline of our Armed Forces. Although I would not accept that the Williams case was a good reason for limiting the commanding officer's present powers to dismiss any charge if he does not think there is a case to answer, in that case the commanding officer's decision, taken in good faith based on legal advice in the theatre, was subsequently shown to be not unreasonable, with the fault lying more in him not being fully supported in Whitehall, as he could have been, despite contradictory legal advice about whether a prima facie case existed. I do
not have too much difficulty in accepting that a commanding officer should
no longer retain the powers to dismiss serious charges with which he does
not have, or will no longer have, the power to deal summarily. But all of
this makes it even more important that the commanding officer should not
be removed completely from the dispensation of justice for his men, even
in serious cases, and can return their trust in him by backing them if the
circumstances make that appropriate or by supporting them being
disciplined if that is necessary for the preservation of good order and
the highest legal and ethical standards. At the moment, the Bill is not
entirely satisfactory in that respect. There seem to be three ways of keeping commanding officers properly in what one might describe as the "disciplinary loop" without slowing up the process of administering justice, which must be quick and which has certainly not been so in recent years. That point has already been highlighted in this debate. The first of those—this is properly covered in the Bill—is that the commanding officer will continue to have the power to deal with all disciplinary offences, other than the most serious Schedule 2 cases, and that all charges should initially be brought before him, with the proviso that where necessary and appropriate charges would be referred for investigation by the service police. As the Minister has already pointed out, in the case of the Army, the commanding officer's powers have been strengthened in certain respects. The second way is under Clause 113(2), which reflects "the shooting investigation policy". This is extremely vague and confusing, as indeed is the whole Bill, with its convoluted drafting. It must be something of a nightmare to any adjutant or regimental sergeant major trying to master it, but I suppose they will be eased through it in some way. Clause 113(2) gives the commanding officer some jurisdiction about whether he refers a matter to the service police, as the Minister at the Select Committee hearing in another place confirmed. Would, for instance, that jurisdiction cover a killing which was seen by eye witnesses, perhaps at command level, to be clearly within the rules of engagement? What about accidental discharges, which are very prevalent on active service, perhaps bringing injury to a comrade? The question of referral to the police needs to be cleared up with further guidance about what constitutes criminality in cases of that sort. Finally, there would be the procedure not yet included in the Bill—although the Minister covered it in respect of supplementary regulations—which I hope will be contained in an amendment to be tabled in due course and which to my mind is essential. That is for the commanding officer to be informed of all submissions put forward by the service police to the director of the military prosecuting authority setting out the basis for that submission, not just those referring to less serious offences for action by the commanding officer as written into the Bill. The commanding officer should then have the opportunity to make a report to the director through, I suggest, his superior headquarters. This is important in cases where the commanding officer might be unduly protective. Superior headquarters could provide a broader perspective which would keep the military director of prosecutions fully in touch with what was going on on the ground. As the director would consider any report from the commanding officer at the same time as he considered the service police report, there should be no undue delay. The
involvement in some form of the chain of command is important. It should
be written into the Bill and not be left to supplementary regulations as
suggested by the Minister. This is important because Whatever the Strategic Defence Review may have claimed, joint arrangements are hardly new. Having taken part more than 60 years ago in the largest combined operation that the world has ever seen or, thankfully, is ever likely to see, I can say this with some feeling. The services remain very different animals—if they do no object to that description—with different pressures on them in combat and often with different disciplinary imperatives and requirements. Many operations are, rightly, jointly conducted and, one would hope, better co-ordinated, but some remain largely single service. When you treat all service personnel alike as regards, for instance, a single prosecuting authority under one director who may be from any service—if he is not a civilian—and a standing court martial, there may, and probably would, be advantages from a legal point of view but, inevitably, you will lose some awareness of the special circumstances and pressures pertaining to personnel in that particular service at that particular time. Although I can see the advantages of being able to deal from a disciplinary point of view with, for example, men and women of a different service who happen on operation to come under a single service command, much of the Bill has elements of bureaucratic tidiness about it, which makes it—I stress it again—even more important that the chain of command remains in the loop. I hope, therefore, that noble Lords will look with favour on the simple and constructive amendments which would achieve this when they are brought forward at the proper time. 5.28 pmLord Judd: My Lords, it is always a challenge and a privilege to follow the noble and gallant Lord, Lord Bramall. There can be few debates in this House which enjoy such a formidable body of distinguished, direct and relevant experience as we have with us today. It is good to be able to hear at first hand so much insight, experience and honest advice. As a layman, albeit a former junior officer in the Royal Air Force and a former defence Minister, I am glad to be able to take the opportunity presented by this debate to pay unqualified tribute to our servicemen and women, to the civilians who work so closely with them, to our service families—especially the bereaved—and to Ministers who carry so much responsibility on our behalf. The courage and sacrifice speak for themselves. We must never take them for granted. They bring home to us every day our own heavy responsibilities. It
seems to me therefore essential to put the issues raised by this Bill in a
wider context. The starting point in any objective consideration of
defence issues is surely the nature of the threat. We then have to examine
honestly the nature of the resources—personnel, equipment and
organisational structure—that we have at our disposal and assess how far
they meet the challenge. If the nature of the threat changes, radical responses may be necessary. Long established traditions and patterns of expenditure may prove inappropriate. Not to be honest about that—it can be very difficult—is to fail the country, to betray our servicemen and women and to waste public funds which could be put to better use. The unforgivable political crime is to initiate military action for which adequate and appropriate resources are not available. That can aggravate pressures and tensions which become acute with direct implications for discipline and justice. The world which confronts us in 2006 is highly complex. It is not, I would argue, more complex or dangerous than in the earlier years of many of us in this House, but with the end of the stark and clear confrontations of the overarching Cold War, the complexities have become more obvious. One of my uncles, a captain in the Indian Army, was killed in an uprising on the North-West Frontier in the early 1930s, having previously served in Baghdad. The present complexities have deep roots in history. These complexities were masked by the Cold War, but they remained as real as ever. The availability of highly lethal, flexible, orthodox and unorthodox weapons—whatever in reality can now be regarded as a valid distinction between the two—has added a sinister dimension to the dangers. From the private to the general, from the sailor to the admiral, from the airman to the air marshal, in the face of the complexities that I have described the demands are immense. They are not likely to diminish. That is the context within which we must approach our deliberations on military discipline and justice. It is not simply a matter internal to the services. It has far-reaching consequences for the political reality within which we expect our services to operate and for the political solutions we seek to crises across the world. A disciplined fighting force, such as we have seen in the past few days in Afghanistan, whatever the wider role—I trust that the planners have allowed for this—is as vital as ever. But other qualities are at least as vital at all levels of command. Diplomatic negotiating skills, humanitarian sensitivity and an instinctive commitment to human rights are essential weapons in the battle for hearts and minds. It must surely be clear to all of us that in the struggles with which we are confronted there is no escape from the reality that they are about a battle for hearts and minds. Peace has to be built: durable peace simply cannot be imposed. That is abundantly clear on every front. When
things go wrong, when there are abuses, it is not just that they
contradict the values for which we so vehemently claim that we are
standing—of course, that hugely matters; it is that they play straight
into the hands of propagandists for the extremists. To call a spade is a
spade, such lapses are treacherous. This is the hard-headed truth. The
weak and dangerous argument is that which rationalises and endeavours to
explain away. To do that is to remove the ground from under the feet of
every serviceman and woman who It is argued that those we fight do not observe the same standards. That is abundantly and sickeningly obvious. But that is precisely why we have to be consistently, transparently and invariably about something different. To falter is to play for the other side. The Bill is about discipline and the administration of justice. I welcome much of it, not least the bringing more closely together on an inter-service basis the systems we have in place. But as we consider it, we shall have to have in mind how far it meets the requirements of transparency, of justice being manifestly seen to be done. It is necessary to weigh all the time the underlying culture and the adequacy of resources both in the judicial arrangements and in the service police. The importance of demonstrable, tough-minded objectivity cannot be over-emphasised. I enjoy the writing of Max Hastings. He is one of the more impressive journalists. Would that there were more of them. He makes me think. But I am not always completely convinced by his conclusions. The other day, he was arguing that it is not possible to expect young men and women, who are recruited to fight and to kill, to give priority to hearts and minds concerns. My contention is that if we fail in our recruitment, training and leadership at all levels to prepare our service personnel for the dual tasks—and they must be effective fighters; they cannot just become social workers in uniform—we are contributing to our own ultimate defeat. It is often what ordinary people encounter in the immediate incident which can have a seriously counter-productive—or, indeed, a significant and positive—consequence. Leadership, training and ethos are crucial. Systems of judicial administration, however theoretically perfected, are fairly useless without that context. Indeed, they can engender cynicism. We have to be careful lest, in any imposed methodology for what might be called corporate military ethics, we do not inadvertently undermine the role of leadership. The commanding officer, the NCO who is a living example of the fight for values, is worth any number of lawyers and judges. Before I conclude, I should like to refer specifically to Clause 8, which received a certain amount of necessary attention in the other place. I hope my noble friend will be able to convince us that this clause has been drafted with an objective long-term view and not because of the disturbing number of deserters and those going absent without leave in the context of the conflict in Iraq. The penalties are potentially draconian. Life imprisonment is a heavy sentence. Conscientious objection is a precious right which is central to the values we proclaim. We must never jeopardise it. In
volunteer services, however, people volunteer to serve the nation in
whatever way the nation requires. A central question is whether
conscientious objection can then apply to a particular situation in which
a The occupation of Iraq was, however reluctantly, post facto authorised by the UN Security Council. But to pretend that an argument does not still exist about the original action and occupation is perverse. I, for one, remain convinced that there should have been an ad hoc specific UN Security Council authorisation—not a subjectively interpreted authorisation cobbled together from past resolutions. This mattered in the cause of the international rule of law, but it also mattered in terms of global political credibility and the battle for hearts and minds. The collapse of the argument put forward in favour of the need for action—the absence of weapons of mass destruction—reinforces the issue. If Clause 8 is to apply, it would surely be appropriate to have explicitly on the face of the Bill a reference to an occupation authorised by the United Nations and under international law. What my noble friend has to say about this in his reply will be very significant. I conclude as I started, by taking this opportunity to pay tribute to our services—the men and women and their courageous and anxious families who serve on our behalf. 5.42 pmLord Mayhew of Twysden: My Lords, of course I follow the noble Lord, Lord Judd, in his concluding words of tribute—and well deserved they are—to the qualities of our fighting services in whom we have such pride. By my calculation, the seven gallant and other very senior officers who are due to speak in this debate muster between them some 34 stars. As a fairly humble national serviceman, I feel that the qualities of brevity and diffidence are both prudent and seemly. I shall try to achieve both. Along with many others who are better qualified by experience than I am, I think that there is much to be welcomed in this Bill. Focusing as I tried to do on the Bill's legal aspects, I singled out in particular this consequence of integrating the service discipline Acts—namely, that where the three services are in future deployed in a joint operation, personnel serving on a fully joint basis in fully joint units will be subject to the same disciplinary system. That must surely be of immense importance to commanders and to efficiency generally. This merging of the individual service discipline Acts is therefore an extremely valuable reform. But as
has been pointed out a number of times today—first by the Minister—the
Bill comes at a time when what one used to call the military justice
system Questions of this character can be expected to arise with increasing frequency with the new pattern of deployments that seems to be emerging and, indeed, has been emerging for some time. They add to the difficulties and dangers that our troops face, and they surely emphasise the critical importance to them of having confidence in the legality of what they are required to do and, further, in the fairness of the disciplinary processes and structures within which they work. I welcomed the Minister saying earlier this afternoon that fairness was the key consideration. He said that, above all, the military justice system must be fair. I believe that it is that concept of fairness that resounds most in the minds of our military in this context. People know that they have to work within the law; they ask only, as they are entitled to do, that the law be made reliably clear to them by those who deploy them and that its disciplinary enforcement take full and fair account of the stresses and dangers that they face. I now turn to the Bill. It cannot of course be expected to deal with the substantive law applying to specific operations, but it does deal with the processes by which disciplinary justice is delivered. In the context of confidence in the fairness of prosecuting decisions, I found it curious, not to say dismaying, that the new Director of Service Prosecutions is not required by the Bill to be a serving officer. Clause 358 sets out the requirements for this particular office, which all relate to legal qualifications of one kind or another. Why has this departure from each of the individual service disciplinary Acts been made? The Minister may reassure us, or seek to do so, by saying that it is the intention of the Government that in practice the Director of Service Prosecutions will always be a serving officer. If that is the case, why can it not be specified as necessary in the Bill? If
that were indeed the intention of Ministers, we should welcome it. But it
is worth exploring why it would be valuable. It would be valuable because
it would be seen to be some safeguard against prosecuting decisions being
taken in ignorance of the character and influence of the operational
stress that the soldier cannot avoid. The noble and gallant Lord, Lord
Bramall, has touched on this already, with a wealth of personal
experience. It would be good for justice and for confidence in justice if the new director had to be a serving officer. That would at any rate give him access—although inevitably at second hand, one imagines—to information about and an understanding of operational stress. Of course it would be better if he had recently had personal operational experience, but I suspect that that is too difficult in modern conditions. It is reassuring to learn, as I did yesterday, that every young officer in the Army Legal Services typically serves a six-month secondment as a platoon commander or equivalent in an infantry battalion. The failure to require the Director of Service Prosecutions to be a serving officer has not, I guess, passed unnoticed. I would be surprised if it were not seen as being of a piece with what is seen, for example, as the increasing practice of employing civilian counsel to prosecute in courts martial. They will only very rarely, and coincidentally, have any service experience these days. There is in some quarters perceived to be a civilianisation of the military justice system, which occasions well placed anxiety. This departure from the pattern of the individual service discipline Acts in not requiring the director to be a serving officer is alarming, not least because it will inevitably be seen in the context of the notorious case of Trooper Williams, which, thanks to my noble friend Lord Campbell of Alloway, your Lordships' House has valuably examined and which has already been referred to this afternoon. It is worth reminding your Lordships that in that case, the commanding officer, acting entirely within his legal powers, now to be taken away by the Bill, and on legal advice obtained in theatre, got it absolutely right in dismissing the proposed case on the grounds that, in the operational circumstances prevailing at the time, there was not enough evidence to warrant a prosecution. Nearly two years later, this belatedly became the view of the Director of Public Prosecutions, to whose civilian service the case had been very dubiously referred, and the case was dropped virtually at the door of the court. On the co-existence of the parallel civilian jurisdiction and the military, amendments that my noble friend Lord Campbell of Alloway will table will give us most valuable insights into the possible role of the High Court in making a referral instead of the Attorney-General. I think that there will be plenty of room for valuable debate there. I have thought it very regrettable that the Government have removed the jurisdiction of the commanding officer in this context, which was so correctly exercised in the case of Trooper Williams and which I believe has been of long standing. If it has been of long standing, it is rather interesting to reflect on why that is the case—I have not been able to look it up—and on what was said in its favour in the first place. There have been plenty of opportunities to get rid of it before now. It is
important to have an idea about why this has happened. I listened with
care to what the Minister said; I listened with no less care to the noble
and I will want to look carefully at what the Minister has said, but I note with a little scepticism the assertion that the commanding officers do not want the jurisdiction. Of course I have great respect for what General Sir Mike Jackson has evidently said, but I doubt whether it is true that Trooper Williams's commanding officer, his successor or his contemporaries do not want that jurisdiction. That power is of course reviewable judicially if it is exercised irrationally or unlawfully. I would be perfectly prepared to see the Attorney-General, who has a corrective overall supervisory role, being allowed to appeal against this exercise, but there is plenty here to be looking at. I do not give up my initial and instinctive reaction of regret that this power is being taken away. The noble and gallant Lord, Lord Bramall, asserted that military justice cannot be exercised in a vacuum. I respectfully agree and with that in mind expect that we will take up some time in what will be a productive Committee stage. 5.55 pmLord Roper: My Lords, like the noble and learned Lord, Lord Mayhew, I do not have the same first-hand experience of service discipline as many of the noble and gallant Lords taking part in this debate. It is 50 years since I completed my national service in the Navy. My excuse for taking part is that, more recently, 30 years ago when serving in another place, I served on the Select Committee considering the Armed Forces Bill of 1976; and the very special procedure that the other place uses for considering these quinquennial Bills is a useful introduction and education to the range of issues of service discipline that we are considering here today. Indeed, five years ago in this House, when we were considering the previous Armed Forces Bill, I timorously suggested that there might be value in there being a Joint Select Committee of the two Houses to carry out the pre-legislative scrutiny of these quinquennial Bills. I have
read with considerable interest and benefit the report of the Select
Committee in another place and in particular the evidence of the noble and
gallant Lord, Lord Boyce. He said that there should be a tri-service Act
which maintains options for "tolerable variation". That is a rather
satisfactory outcome of this legislation. Indeed, I will have to think
hard about the points made by my noble friend Lord Thomas of Gresford on
the composition of courts martial, because that is one of the tolerable
options and variations. Probably in normal cases the majority of the
members of a court martial would come from the service of the individual
whose case was being The other point about the Bill is that it is an enormous operation transforming the structure of service discipline. It is an enormous tribute that we have the Bill. Will the Minister say how long it will take us to introduce it? It is a large and complex operation and, as has been suggested, it will be necessary for people to get to know something about the new procedures. These things cannot necessarily be carried out overnight. When we go through the Bill we see that a great deal of it depends on regulations. The Minister himself made a point about Clause 127(2)(e), which is a complex matter that will be determined by the regulations. I wonder how far we will be likely to be able to see or draft the regulations when we come to consider the Bill in detail in Committee, because it seems that a number of the points, and points of substance, including the issue of the roles and definition of commanding officers are matters to be prescribed. It would be useful if we could see those before we come to make our final conclusions. One thing that I am particularly pleased about is the fact that the Government changed their mind in the Commons about annual renewal of the Armed Forces Act. The Act is to be renewed by order every year, maintaining a very long-standing historical principle whereby the Armed Forces are authorised once a year by both Houses of Parliament. The lapse of that provision, as was originally proposed and was strongly argued against in the Select Committee, would have been a mistake. Only yesterday, we saw in the Government's response to the Deepcut review how far they have moved in developing a commissioner of military complaints. It will be necessary to examine in some detail the specific amendments that the Government table on this point to discover whether there has been a significant change in response to Nicholas Blake's report, or to what extent this is little more than a cosmetic change. We shall need to give a good deal of consideration to that. From what has been said so far, and what I suspect will be said in later contributions, there will be plenty of opportunity for detailed consideration of this Bill in the Committee of the whole House to which it is to be committed later this evening. But I join others in welcoming an important step forward in developing a framework for military discipline and, like others, pay tribute to those who are going to be subject to it—our very gallant servicemen of all three services. 6.01 pm
Lord Ramsbotham:
My Lords,
I thank the noble Lord, Lord Drayson, for the considerable efforts that he
has gone to in the past weeks to brief my ex-military colleagues and I on
the progress of this Bill. We have appreciated greatly the trouble that he
has taken. Like many other noble Lords, we are generally very satisfied
with the great majority of this Bill. However, I am conscious that when one is talking about a military matter at the moment, one has to be aware of three factors affecting the selection of the aim, as it were, if you are looking at it in a military context. First, there is a tendency to think that the retired military officers represent the "old and bold" and the reactionary, as opposed to the modern people who are facing completely different challenges. That is not wholly true, because the challenges basically boil down to persuading people to do what they do not necessarily want to do on behalf of the country. Secondly, there is the danger of extrapolating emotion out of highly publicised events, such as Deepcut, the Trooper Williams trial, the 3 Para court martial and the case of the guardsmen, as well as the forthcoming matter of the Queen's Lancashire Regiment, as opposed to focusing on the needs and everyday requirements, many of which will not be discussed in emotive circumstances. However, I have to say that many members of the Armed Forces will be looking with great interest to see what action is taken against the policemen involved in the shooting in Stockwell, having observed what happens to soldiers who open fire in Iraq. Finally, we are very conscious that fewer and fewer people actually understand why the Armed Forces need a separate military discipline code. That was extremely well summed up by the Judge Advocate General, Judge Blackett, in his evidence to the House of Commons Select Committee. He said: "There are cogent reasons for maintaining a unique system of military justice, separate and distinct from the civilian system. These are to . . . support operational effectiveness and morale . . . maintain discipline which is an essential element of command . . . reflect the special and unique nature of the Armed Forces, in which sailors, soldiers and airmen are required to use lethal force to support Government policy, to risk their personal safety, and to be prepared to lay down their lives for their country, and . . . extend the law of England and Wales to personnel serving overseas and outside the jurisdiction of the civilian courts". Armed
with that when I look at this Bill, I join with the comments of my noble
and gallant friend Lord Bramall and the noble and learned Lord, Lord
Mayhew. There are two aspects of particular concern. First, there is the
maintenance of the position of the commanding officer and, secondly, there
is our concern about the military experience and expertise of those who
are to act in the prosecuting authority in various positions. A point that
has already been raised by my noble and gallant friend Lord Bramall
concerns commanding officers' involvement, once a case is taken out of
their jurisdiction by the service police and the prosecuting authorities.
The requirement that the commanding officer must be kept informed of what
is going on should be accompanied by the enablement of the commanding
officer to make representations to those people involved at the time to
ensure that all the military factors, or any factors that they may need to
know, are actually there. This is not contained in the Bill, and it should
be teased out during Committee. As the noble and learned Lord, Lord Mayhew, said, it is very difficult to be precise about what you mean by "military experience" in terms of the Director of the Service Prosecutions. Could he have been a platoon commander in an infantry battalion? Could he already have served as a prosecuting authority in a junior capacity? We need to be more specific than merely listing the legal qualities required, because he may have to make military judgments on cases that come to court. One or two other things concern me about the Bill in its present state, relating to the fact that a number of other issues were not satisfactorily discussed in the other place before they came to your Lordships' House. For example, Clause 154, on single service panels, has already been mentioned. This is a tri-service Bill, which is fine; there will be many occasions when you need tri-service justice because you have all three services together. But for the vast majority of the day, individual servicemen and servicewomen will serve in their own service and that is all that they will see. Therefore, it is very important to ensure that single service justice panels are continued. I know that a very large number of amendments will be tabled to the Bill, and here I thank the noble Lord, Lord Astor of Hever, for the enormous effort that he and his research staff are putting into this, which he has been sharing with my noble colleagues. When the Minister looks at the speeches and suspects that there may have been collusion between the 34 stars mentioned by the noble and learned Lord, Lord Mayhew, he is absolutely correct—and I assure him that that collusion will continue. I have three particular concerns. First, the House of Commons Select Committee report on the Armed Forces Bill mentioned one particular concern that it expressed to the MoD. It says: "We expressed our concern to MoD that we had not been provided with more detail of the proposals likely to be in secondary legislation, without which we have not had a complete picture of the legislation's proposals. We understand that MoD intends to produce more details before the conclusion of proceedings on the Bill in the House of Commons . . . We urge the Government to provide more detail on the proposals that will be included in subordinate legislation and how they will work before the House of Commons completes its consideration of the Bill". That point has already been made to the Minister in the deliberations that I mentioned earlier, but it is enormously important that some of the things stated in the Bill more as a generality are spelt out in detail, particularly for the future, because the detail may be lost. For example, it needs to be spelt out that the commanding officer may make recommendations during the process rather than treating it as a matter of, "Someone said some time that it could be". That is important.
Secondly, it has been quite clear that the image of the military has been
taking something of a bashing in the media, particularly over high-profile
cases. I am extremely glad that the noble Lord, Lord Astor, mentioned the
resurrection—or the hoped resurrection—of the post of director of public
Finally, I hope that when timings are prepared for the furthering of the Bill, there will be sufficient time in Committee to cover all the amendments that come out, rather than just sending something incomplete back merely because we have run out of time. 6.11 pmLord Guthrie of Craigiebank: My Lords, in general I welcome the Bill. I thank the Minister and his team for the trouble they have taken in briefing us on the progress of the Bill. Thank you very much indeed. This Second Reading is happening at a very difficult time for our services. They are involved in operations in Iraq which for many people in our country, perhaps the majority in our country, are unpopular. For the first time in my own experience the services do not have overwhelming backing for what they are doing, although the country is still supportive of the services themselves. The new commitment to Afghanistan will, I think, pose further difficulties, may continue for a very long time and could become as worrying as Iraq. I do not think that we can guarantee to have support if the operations appear to be going wrong. I think that the services know that and are very concerned. Our services need a discipline Act that they can believe in, one which reflects and understands just how difficult it is to take part in military operations and the challenges that the services face. The structures they need are in many ways different from those in civilian life. What they need must be understood. I am still not sure if many in the Government, in Parliament and the legal profession begin to understand that, despite their assurances that they do. There seems to be less understanding than there has been for many years. There is still a feeling in some circles that service law should be the same as civil law. That cannot be right if we are to have effective fighting forces. I think it illustrates the lack of understanding that I am talking about. The
bond between the commanding officer and his or her unit is of great
importance. I was very relieved to hear what the Minister had to say about
the service police and the commanding officers. I and others did I can well understand why a single Act, as opposed to separate service Acts, brings benefits. It is much more convenient to have one Act. However, we would be very wrong to forget and not to recognise why we have had three different Acts. We should be very careful. I agree entirely with what the noble and gallant Lord, Lord Bramall, said on this subject. The Acts reflected the nature of the services, the different environments they fight in and the way they go to war. There are many differences. For example, in the Royal Navy the captain of a ship is the man who decides whether to go into action or avoid action. The ordinary seaman has little choice; once the captain has decided which course to sail on, he cannot run away. In the Royal Navy, only a minority of officers and crewmen close with the enemy and have to place themselves in mortal danger. The Army is different and, I think, is rather more complicated. A far higher percentage of officers and men go into battle and have the opportunity to run away. It is important that, when and where necessary, services are different. That needs to be recognised. For example, the composition of the courts-martial boards is highly relevant. The services need to have confidence, as other noble Lords have said, in the Director of Service Prosecutions. I entirely agree with what the noble Lord, Lord Astor, said. It is difficult to define "military experience" but it is surely much more than just having a senior military rank. Having a civilian in this important role would be quite wrong and damaging. Lastly, over the past few years we have been in danger of our services becoming risk averse. The noble Lord, Lord Astor, referred to a recent survey. We must be very careful that servicemen do not become frightened to take the necessary actions on the battlefield. We know that some soldiers have been nervous to squeeze the trigger when they needed to. The Act must continue to recognise that it has great responsibilities for operational effectiveness. I think that much work needs still to be done in Committee to reassure the services. As the Minister, the noble Lord, Lord Thomas, and others have said, the services need complete clarity on what the law is. 6.18 pmBaroness Dean of Thornton-le-Fylde: My Lords, I, too, welcome the opportunity to discuss this long awaited Bill. I would also like to thank the Minister, his predecessor, my noble friend Lord Bach—who was in his place a short while ago—and the MoD Bill team, headed by Mrs Teresa Jones, for their valiant efforts over the past two years in trying to keep noble Lords up to date with the various debates on and guises of the Bill. The
Bill's overall intentions are to be welcomed and many noble Lords have
already done so. It is 50 years since the discipline Acts of the three
services were implemented in the 1950s. Since that time, society has The Bill was referred to the Select Committee in another place and that committee's considerations were in public. I welcome both those aspects, which have certainly been helpful in understanding this wide-ranging Bill. The rigour of the committee's considerations has helped a number of us when reading the reports and the evidence given to the committee. The Armed Forces are distinct from other parts of society. The work and the commitment that our forces pledge to the nation—sometimes people have to give their very lives—make it paramount that there is a separate system of service law and discipline to that for civilian folk. That is the basis on which I approach this really quite complex Bill. I wish to address some key parts of the Bill. Chapter 3 covers desertion, which has been referred to by my noble friend Lord Judd but no one else. The clauses are a considerable improvement on what we have at the moment, and I welcome those improvements, but that is not surprising, since the disciplinary Acts written 50 years ago were bound to be very different from what we would expect today. However, I need convincing that a maximum of a life sentence is necessary for desertion. I do not agree with my noble friend Lord Judd that we would invite people into the services and then go around encouraging them to be conscientious objectors, which is the complete opposite of the intention. However, I need convincing that a maximum of a life sentence is necessary for desertion. Appreciating and understanding the military context is essential to the administration of a fair justice system in the Armed Forces, and key to that is the commanding officer. Clauses 52 to 54 relate to the role of the commanding officer, which has been referred to already in the debate. I understand the logic in the Bill, and I understand the evidence that was presented in another place. I also understand that it was accepted that the commanding officer will be kept "in the loop". I am not too sure what that means in a disciplinary context. There
is a reference in Clause 127 to giving power to "prescribed persons" to be
notified of "prescribed matters". The Minister referred to that in his
opening remarks. Will he confirm that the words proposed in regard to the
commanding officer being "in the loop", so to speak, will be in the Bill?
If they are there, as I hope they will be, just what involvement will the
commanding officer have? If the words are not in the Bill, will they come
forward in secondary legislation during the passage of the Bill through
this House, so that we have an opportunity to consider them? Chapter 2 deals with time limits. If there is one area where this Bill could help, it would be to shorten the time that the process of the system of discipline takes—the whole process, not just getting to the point of charging. As we have seen in all too recent cases, quite often it is the time that the process takes that causes the stress that has such a damaging impact on the service personnel concerned, their families and sometimes the wider morale of their colleagues in their unit back at base. I welcome Chapter 3, which covers double jeopardy. Trooper Williams is the often quoted example, but this is not legislating for a one-off situation; that would be bad legislation. Other parts of the Bill will help, but this chapter is very important. In Part 18, Clause 358 is one of the most critical parts of the Bill. It provides for the position of a Director of Service Prosecutions, but it does not provide that the person appointed must be either a serving officer or have military experience. I have read with interest the evidence given to the Select Committee in another place, and I have followed the various briefings from the MoD. I understand the difficulties about getting the right wording in the Bill, and I agree that the core must be that the best person for the job should be appointed. But, with my limited experience with the Armed Forces, I cannot believe that it is not possible to guarantee that the Director of Service Prosecutions has both legal and military experience. In fact, I think that that is essential, not least because we are talking about the confidence of service personnel in the process and in the people involved in it who are meting out the decisions affecting their lives. The Minister may, I believe, recognise that there is an issue here, and I ask that in winding up he will give an indication of how he intends to address this in Committee. All Bills have secondary legislation, and this one perhaps more than most. Mr Humphrey Morrison, director of legal services at the MoD, in describing the scale of the task of drawing up the statutory instruments relating to this Bill, said: "It is a big project". That is perhaps one of the best understatements that I have heard in a long time. As I am sure the Minister recognises, it is important that the various pieces of secondary legislation relating to this Bill come before us as the Bill progresses through this House. It is important that the Bill does not leave this House without the principal components that will be covered in secondary legislation being put before us for consideration and discussion. There
is much to welcome in this Bill. Much of it will give support both to
operational effectiveness and to the confidence of personnel in the
system. But some of the changes that are needed—which have been
highlighted in this debate and are derived from the work of the Select
Committee—will in the end, of themselves, determine just how successful
the Bill will be in meeting what is expected of it. 6.26 pmLord Campbell of Alloway: My Lords, at the outset, I thank the Minister for the rather exceptional treatment that we have had in being able to discuss with an open mind how we could improve this Bill. That is greatly appreciated. I am concerned about whether some form of statutory safeguard is now requisite, as has been spoken to on so many occasions between 14 July 2005 and 16 February 2006 when this was discussed. Is it requisite to do something to avoid repetition of what happened not only to Trooper Williams but to Sergeant Roberts, after years of delay? I am very grateful to the noble Lord for the proposal to end delay and to my noble friend Lord Astor of Hever for trying to fit in another safeguard to avoid delay. Even with that, there still arises the question of what happens after a period of delay when you find that there is no quality of evidence to support the charge. Even if you reduce the delay, the situation for the member of the Armed Forces involved, on a charge where there is no quality of evidence, must be looked at with some care. In this context, the Bill makes no provision to inhibit resort to the process under which trials of cases in the civil courts is ordained by the Attorney-General, whether or not at the behest of the Director of Army Legal Services or what will become the DSP, for offences that otherwise could be dealt with at courts martial. Such ordnance is made ex cathedra, within the closet of absolute discretion, not subject to review by the judiciary, without notice, reasons or any means of objection. That is in defiance of the fundamental principles of justice. It remains a matter of current concern for the Armed Forces that now must be addressed, not only in the interests of justice, but under the new concept that justice has to reflect the provisions of the Human Rights Act. The purpose of my speech is merely to put down a marker for a probing amendment. There is no need to deal with detail at Second Reading, but it is proposed to require the Attorney-General to apply to the High Court if he wishes to resort to the civil jurisdiction for the three serious offences of murder, manslaughter and breach of convention. The High Court would then adjudge whether that would be in the public interest. No one seems to imagine the truth, which is that you should transfer jurisdiction only in the public interest. I suggest that that is a matter not for the Attorney-General but for the court—totally objectively—to decide, as it should decide whether there is the quality of evidence to warrant a trial. In |