Clause 116 — Referral of case following investigation by service or civilian police
Orders of the Day
Gerald Howarth (Shadow Minister, Defence; Aldershot, Conservative)
I do not agree with the hon. Gentleman. The facts prove him wrong. The commanding officer's original judgment was right. He did the right thing. He took legal advice and investigated, but some lawyer in uniform higher up thought that the advice given by the legal officer on the ground was wrong. We then had the farce—well, it was not a farce for Trooper Williams; it was a serious personal tragedy for him. It was a disgrace. We then had the disgrace of the case going through the military courts so that the high command could be absolved of failing to offer a soldier for prosecution.
In the Select Committee, I suggested that there were ways round the problem. I suggested, as the hon. Member for Islwyn was kind enough to point out, that there were ways of dealing with it. The first option that I proposed would have given a commanding officer the power to dismiss charges, even when he would not have had the power to deal with them summarily, but would have incorporated the amendments to Queen's Regulations of
This is a lost opportunity. I am sorry that the Government could not accede to our proposals, and I would like to put it to them again that they would reflect current practice, which appears to be working reasonably well. They would also address the problem, which we all agree must never arise again, of a charge arising from an event on operations during active service going outside the military domain and being dealt with by a civilian court that would not understand the military context. I hope that the Government will be prepared to look again at this measure in another place, particularly once they have heard the advice of the former Chief of the Defence Staff.
In the meantime, however, I am disappointed that the Government were unable to accept the amendment that I tabled to clause 116, to which the hon. Member for Islwyn and others have already referred. My amendment would have required a service policeman investigating a charge against a member of the armed forces to inform that individual's commanding officer of any intention to refer the case to the director of service prosecutions. The amendment would also have made provision for the commanding officer to make his own representations about the case to the director of service prosecutions.
I should like to explain to the Minister that that would have enabled the commanding officer to set the episode in the military context, so that the director of service prosecutions would have that information to hand. In a moment, I shall deal with the response that the hon. Member for Islwyn gave me in Committee, but first I want to explain this point to the Minister. I know that he is new to his post and—I do not say this in a patronising sense—he has a huge amount to master. It seemed to be accepted by the Government that it was desirable that the commanding officer should have that input. We pressed the matter to a vote, and the Committee divided equally. It was only the Chairman's casting vote that enabled the Government to carry the day. However, I remain convinced that there should be a requirement that the commanding officer be informed.
The Bill already reduces the power of a commanding officer to dismiss a serious charge against an individual under his command. However, to remove the commanding officer from the loop altogether would reduce his authority over his men yet further. We have heard powerful evidence tonight from a former commanding officer of the importance of the bond between men and their commander. The Committee would be ill advised not to recognise the force of the argument put forward by my hon. Friend the Member for Newark.
The provision to allow a commanding officer to submit his own report once a charge had been referred to the director of service prosecutions would ensure that the assessment of the commanding officer, setting out the military context, was included in the director's assessment of whether there was a case to answer. The commanding officer would know the men under his command. He would probably have been present when the incident took place; if not, he would not have been far away. He would therefore bring not only more immediate knowledge of the military context but, most importantly, knowledge of the individual concerned.
Will the removal of the safeguard of having the commanding officer in the decision-making process increase the chances of a serviceman being put on trial without adequate understanding of the operational circumstances? Lord Boyce said in the other place on
"Command and discipline in the Armed Forces go absolutely hand in hand. A commanding officer, who has total responsibility for the command of his ship or unit, must, in turn, be responsible for—and carry out—its discipline. It is impossible to achieve and maintain the necessary level of discipline unless those under his or her command are in absolutely no doubt that their commanding officer has authority over them."—[ Hansard, House of Lords, 14 July 2005; Vol. 673, c. 1235.]
My hon. Friend the Member for Newark said that we must maintain that bond, and he was right.
The hon. Member for North Durham has had great fun trying to suggest that the former First Sea Lord and Chief of the Defence Staff had somehow failed to provide adequate evidence to sustain his argument. I have referred to the risk-averseness that many people in the armed forces recognise. However, since the beginning of our proceedings, a document has come to light. It is headed "Reinforcement of pre-deployment training in Iraq", and it was produced at the beginning of December by Major Whitelegge, who is SO2 Plans, following a survey that had been carried out among7 Armoured Brigade. It is disappointing that we were not told about its existence.
One of the matters that the major was asked to examine was troops' reluctance to become decisively engaged when the rules of engagement clearly allowed them to do so. The findings were pretty emphatic.
"Confidence to open fire. All agreed that there was a certain British reticence to open fire, and that this was largely a positive feature at the start of an operational deployment... However, there remained a common belief that many soldiers lack the confidence to initiate opening fire when it is tactically and legally sound to do so. Reasons for this were given in the following approximate priority order:
(a) fear of investigation. There is a widespread fear of being investigated for having opened fire, and of a protracted prosecution system that might ensue. Some believed that individual soldiers would not open fire as a result of this fear. More typically, it was felt that soldiers would open fire, but only within the strictest interpretation of the ROE...
(b) Inconsistencies in ROE training. Throughout PDT"—
that is, pre-deployment training—
"units have received differing advice on what level of force is suitable in a given situation, usually due to different understandings of the "imminency" of the threat being faced by the soldier, or borne from experiences on other operations with different policies."