Armed Forces: Chain of Command
Lord Campbell of Alloway (Conservative)
rose to call attention to the case for upholding the integrity and legal authority of the Armed Forces chain of command; and to move for Papers.
My Lords, the object of this speech, devoid of political motivation, is to seek to persuade the Government and the noble Lord, Lord Drayson, to clear a pathway through the stables of the Ministry of Defence's regime under the aegis of the director of Army Legal Services, in order to uphold integrity and legal authority of lawful decisions of commanding officers taken under military law, and to enjoin that no further request shall be made by the Ministry of Defence to challenge the rectitude of such decisions in such circumstances under the concurrent jurisdiction.
The Trooper Williams case but exemplifies the woeful ineptitude of the extant ill-conceived regime, which remains of general application to all outstanding cases. Perhaps other noble Lords will deal with other cases. Albeit that the challenge in that case was to no avail, the chain of command and its integrity were none the less impugned, as was the intention, as is wholly apparent from the documents to which reference shall be made in this case.
Those documents also reveal that this is no little legal difficulty. The decisions of the commanding officers under military law were commended by the trial judge, now a member of your Lordships' Appellate Committee, on the basis that there was no evidence on which a reasonable jury, properly directed, could convict of murder. The charges laid by the Crown Prosecution Service, on reference by the Attorney-General and at the request of the MoD, had, for such reason, to be withdrawn by the Crown at the trial.
Hence, the concern of the noble and gallant Lords on the Cross Benches, who speak for the three armed services with ultimate authority. On
The noble and gallant Lord also expressed his concern for the number of soldiers being investigated for war crimes and said that,
"British lawyers are hiking their wares in Iraq . . . on a 'no fee, no win' basis".—[Hansard, 19/5/05; col. 144.]
The noble and gallant Lord also said that those investigating such cases need to understand the real pressure under which our soldiers operate and the fact that the number of cases being investigated is a cause for concern and will undoubtedly affect the morale of our own Armed Forces.
Against that background, one comes to the Trooper Williams case. In the wake of the collapse of the trial, Trooper Williams, who served with a squadron of the 2nd Royal Tank Regiment which was part of the 1st Kings Battle Group in Iraq, and in the wake of the observations of the trial judge, the case for upholding the integrity and legal authority of the chain of command—the bedrock of trust—could already have been made in those proceedings. However, your Lordships' attention will also be drawn to MoD procedures that are to be revisited in this debate and even perhaps, in due course, by amendment to Queens Regulation or the Armed Forces Discipline Act.
The threat of indictment for war crimes or murder hovers over our armed peacekeepers, in aid of a civil power. In this case, the facts are now fairly well known. The indictment was laid on
Regarding indictments for war crimes, when the noble and gallant Lord, Lord Boyce, as Chief of the Defence Staff, sought assurance that armed intervention in Iraq was lawful under public international law, the chain of our command of our Armed Forces entered a new dimension. No such assurance had ever been sought before. Article 8 of the Rome statute envisages the institution of such proceedings in the United Kingdom or before the ICC. As long ago as
As to the procedures, Lieutenant-Colonel Griffin of the 1st Battalion, the Kings Regiment, carried out an investigation, satisfied himself that the shooting was within the rules of engagement, which had been observed, and that no action was necessary. That decision was taken under guidance drafted by Colonel Barnett, the senior legal adviser in Iraq, which was issued on
"With current legal, political and ginger group interest in the deaths of Iraqi civilians during operation telic: our investigation and subsequent failure to offer for prosecution could become a cause celebre for pressure groups, and a significant threat to the military justice system".
Such extraneous reasoning has nothing to do with the merits of the case and bore no kinship with the due administration of justice; and no suggestion was made at any time either before or after trial that the decisions of the commanding officers were irrational, perverse or incompatible with or contrary to the ECHR.
Was that to have been a show trial on that reason? On
Baroness Crawley (Baronesses in Waiting, HM Household; Labour)
My Lords, may I respectfully remind the noble Lord, Lord Campbell of Alloway, that this is a timed debate? Perhaps he could draw his remarks to a close.
Viscount Slim (Crossbench)
My Lords, may I say that I was amazed that the speakers' list was not available until six and a half minutes before the House sat? I had to go in person to get my copy from the Whips Office. We were all informed verbally beforehand that in introducing the debate the noble Lord would have 15 minutes. With all the IT and the bits we have, that is a poor show.
Baroness Crawley (Baronesses in Waiting, HM Household; Labour)
My Lords, can I say to the noble Viscount, Lord Slim, that because it is a timed debate, obviously the more speakers we have the less time everyone has for their contribution?
Lord Campbell of Alloway (Conservative)
My Lords, I am obliged.
I am making no suggestion that the Attorney-General was ever aware of the true reason why they sought his concurrent jurisdiction. I am obliged to the House. I beg to move for Papers.
Lord Hoyle (Labour)
My Lords, I am extremely grateful to and thank the noble Lord, Lord Campbell of Alloway, for raising the matter and allowing me to participate in the debate. It enables me to bring to the House the case of Colonel Jorge Mendonca, who is the colonel of the Queen's Lancashire Regiment. At once, I must declare an interest in the Queen's Lancashire Regiment. Ever since I entered Parliament in 1974, I have been a friend of and taken a keen interest in the regiment. In Warrington, there is a regimental Sunday attended by civic heads, from Manchester in the south and Lancaster in the north to Blackpool in the west and Pendle in the east. I point that out only because it shows the deep feeling towards the regiment in the whole north-west.
The matter concerns the unfortunate and untimely death of Baha Musa in custody in Iraq. That is appalling, and I make no excuse whatever for it. Those responsible must be brought to justice. However, the Queen's Lancashire Regiment previously served in Basra with distinction and courage; it was mentioned in dispatches. For the first time for 40 years, a warrant officer received the Military Cross. Colonel Mendonca not only received the DSO but was made a full colonel.
It is against that background that I want to examine the case. What is now hanging over him and other soldiers is that the case may be referred to the International Criminal Court. That court was not set up for that purpose. It was set up to deal with cases of genocide and with war criminals. That that gallant officer could be in the same dock as that in which Milosevic has appeared must be wrong in itself.
As far as I understand it, the case against him is that he committed a war crime under the rules of the International Criminal Court, in that he failed to prevent soldiers under his command committing a war crime by assaulting Iraqi detainees on
"A military commander . . . is responsible for . . . forces under his effective command and control or . . . his effective authority and control".
That is extremely wide-ranging. It is a catch-all. Why should it end with the colonel? Why not with the brigadier? Why not with the commander-in-chief in Iraq? Why not with the chief of staff? Why not with the Minister, the Secretary of State or, if we carry on that line, the Prime Minister? That is very wide-ranging, and I express caution about it.
"will be able to take jurisdiction over an offence committed in the UK or by a UK citizen only if the domestic authorities are unable or unwilling to investigate or prosecute the case".—[Hansard, Commons, 14/6/05; col. 237.]
That is what we are considering this morning and what I want to raise with my noble friend. If there is a case, surely we have the civil and military law on which it could be tried.
I know that my noble friend is modest, but he has already gained a reputation as a person who takes decisions and is prepared to cut through red tape. I ask him to consider the matter. I know that the decision will not rest with him; the legal officers will take that decision. If they charge the colonel or other soldiers under the International Criminal Court, they will destroy the morale of all the soldiers, not just the Queen's Lancashire Regiment but soldiers serving in Iraq, Afghanistan or any other theatre of war.
I ask that common sense prevail in this matter. Indeed, I ask my noble friend to lift the cloud that is hanging over the head of that brave and gallant officer and that historic and well respected regiment, the Queen's Lancashire Regiment. I hope that we can get that decision from him today.
Lord Craig of Radley (Crossbench)
My Lords, I thank the noble Lord, Lord Campbell of Alloway, for introducing this important debate. I wish to address a wider point covered by his Motion, leaving other noble Lords to concentrate on the more immediate concerns of us all.
The 1998 Strategic Defence Review acknowledged that the system of service law was essential to operational effectiveness, its fundamental purpose being to foster and promote the discipline and self-control required in an effective fighting force. The right to command—and respect for command—in upholding that discipline are thus of great importance. They are the two sides of the same coin.
Right to command is underwritten by statute. The Armed Forces discipline Acts state, for example, that it is an offence to disobey a lawful command. A commander at every level expects obedience, and a positive reaction from the subordinate, to his or her lawful order or instruction.
While the right to command is underwritten in statute, the flip side of the coin—respect for command—relies on a very different approach. Indeed, if the command is to be respected, it is self-evident that the giver of that command must himself be respected. Without that, the commanded will not respond, as they must, without hesitation. It is the interaction between the two—the commanded and the commander—that must be build upon to achieve the cohesion and professional competence required for modern warfare and peace-keeping.
For centuries it was ordered, again in statute, that all commanders had disciplinary powers; this aligning of command with discipline being essential to operational effectiveness. If a subordinate transgressed, he or she could be dealt with at the level of command appropriate to the alleged offence: minor misdemeanours at a junior level; the more serious crimes by court martial, ordered usually by a two-star officer in the chain of command. Outcomes were also formally reviewed by the chain of command.
The introduction of the Human Rights Act in 1998, and the renewed obligation for the Armed Forces to abide in particular by Article 6 of the European Convention on Human Rights, have accelerated changes in service disciplinary procedures. Courts martial, for example, are no longer convened by the chain of command. The use of uniformed judge advocates in Royal Navy courts martial has ended. For the human rights advocate this more correctly accords with the independent and impartial tribunal of Article 6.
But—a very big "but" in my mind—there is a growing risk that because senior commanders no longer convene courts martial nor review findings, and junior commanders have had their disciplinary powers circumscribed, these commanders must appear to some to be no longer trusted to act impartially. It is not a very big step to thinking that if authority—in the shape of Parliament—appears not to trust commanders to administer discipline fairly, doubts could surface in different fields about a commander's competence, not only in the field of discipline. Each step taken to alter the long-standing Armed Forces disciplinary procedures may erode confidence in, and hence respect for, commanders at every level.
The Ministry of Defence and the Armed Forces have taken numerous steps to respond to the perceived needs of the Human Rights Act and the convention. They have worked hard to adjust their procedures to fit this new regime.
I should have liked a more robust resistance by governments to the changes that have been accepted—changes that may have an insidious impact on the effectiveness and well-being of the Armed Forces. The disciplinary responsibilities of the chain of command have been weakened.
When the Human Rights Act was in your Lordships' House I tried to get some relief for the Armed Forces, and supported an amendment in the name of the noble Lord, Lord Campbell of Alloway on Report. On a comparable amendment on Third Reading, I said that,
"we are in danger of allowing it"—
"to undermine the essential ethos, military discipline and responsibility of commanding officers within our Armed Forces".—[Hansard, 5/2/98; col. 762.]
[The House observed a two-minute silence.]
In responding to the debate, the then Lord Chancellor said:
"I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces".—[
Practical experience since then does not support that assertion. Flexibility there has not been. The effectiveness of the Armed Forces disciplinary and command structures is being affected. It is a slow-burning fuse. We must beware lest it sparks an explosion of insubordination.
The House will have the opportunity to consider these complex issues when it debates the new Armed Forces Bill during this Session. Perhaps the flexibility of human rights legislation, avowed so earnestly by the then Lord Chancellor, will be revealed for the benefit of the Armed Forces of the Crown. I hope so, but your Lordships should not hold your breath.
Lord Bramall (Crossbench)
My Lords, I am also grateful to the noble Lord, Lord Campbell of Alloway, for the debate, raising as it does the important issues of authority of the military chain of command and the impact that civil law, much of which emanates from Europe and the International Court at The Hague, may have on the way in which soldiers perform their duty and take risks on the battlefield.
There is considerable disquiet among some members of the forces and concern that, even when doing their perceived duty in an operational situation, they may become vulnerable to prosecution and will not always be backed up higher up the chain of command, where it may be claimed that the matter has been taken out of their hands. Without assurances of mutual confidence and responsibility, you cannot run effective fighting forces with the commitment, morale and readiness to take the risks needed to defeat a ruthless and determined enemy.
It is not just the existence of the new legal code—perhaps now weighted as much, if not more, on human rights as on self-defence—that is potentially not conducive to the mutual concern and responsibility of seniors for juniors on which a proper military system operates; it is also the way in which the law can be interpreted by investigators—military and civil; legal advisers, who are often far removed from the scene of the action; and even in the somewhat highly charged political climate of today and the International Criminal Court Act, by the chain of command itself, with superiors becoming as much concerned with avoiding responsibility and consequent prosecution as they are with justice for the individual under investigation.
That was highlighted, as noble Lords have heard, in the recent, lamentable case of Trooper Williams of the Royal Tank Regiment. The Ministry of Defence, influenced by contradictory legal advice far removed from the battlefield; by those extraneous features quoted exactly by the noble Lord, Lord Campbell of Alloway; and by the power of pressure groups actively encouraged, through the head of the Army Legal Services, the Attorney-General to intervene and—needlessly, as it turned out—to arraign the soldier on a charge of murder at the Old Bailey. That was after the soldier had already been properly investigated by the commanding officer who, on proper legal advice and in touch with the situation and circumstances, had dismissed any case against Williams on the ground that there was no case to answer.
The case at the Old Bailey subsequently collapsed when, at the eleventh hour, the Director of Public Prosecutions, realising that the charges would not stick, did not offer any evidence against the soldier. That was only after the soldier and his unit had gone through the most appalling anguish and ripples of concern had gone throughout the Army. The soldier and his regiment behaved in an exemplary manner. I doubt whether the same could be said of the Ministry of Defence.
I am not talking about ill treatment or abuse by soldiers when handling prisoners of war outside an operational environment. That is covered by the Geneva Convention on which, in a situation as legally and operationally confused as Iraq, soldiers should be properly briefed. The responsibility for that briefing lies as much with those at the top who sent the soldiers into such a confusing situation as it does with some convenient scapegoat in the chain of command. That is a different issue. I am talking particularly about ongoing operations in Iraq, in which there is no distinction between war zones and civilian areas and little distinction between terrorists and law-abiding civilians.
In those circumstances, if there is evidence of hostile elements and hostile intent in the area, the soldier often has to decide instantly whether, to safeguard his life and the lives of his comrades, he needs to open fire or can safely show more restraint. That judgment can only be taken on the spot by soldiers relying on their professional judgment and sometimes on the innate decency of the British soldier. It should only be reviewed, justified or condemned, if further investigation becomes necessary, by those familiar with similar situations and aware of the environment and the pressures prevailing at the time and able to make a judgment on whether the soldier has acted in good faith and therefore deserves the benefit of any doubt that there may be.
Rules of engagement and yellow cards help, but the troubling thing about the case of Trooper Williams, who had shot an Iraqi who was clearly connected with terrorism and who had ignored a warning shot, was that commanding officer had dismissed the case just because he was satisfied that the rules of engagement had been met. That still did not stop interference with the chain of command at a level remote from the action and by those influenced by political pressures and adverse publicity.
There are a great many cases pending; it is to be hoped that the Williams fiasco will not be repeated and that soldiers doing their duty in good faith will be given the proper support that they deserve. If investigations are needed, they should be dealt with either summarily or by court martial by people who understand the situation on the ground and pressures of the battle situation.
I am not suggesting that the military should ever consider itself above the law. I ask only that, in an operational situation of limited war or counter-insurgency, the law should be interpreted not in some sort of legal vacuum but with close regard to the realities on the ground. The new international legal code was always likely to impinge on military duty, which is why, in your Lordships' House and in another place, so many of us pleaded for some partial opt-out, as obtained by the Americans and the French. That was flatly rejected by the Government, and we are now starting to see the consequences of that rejection.
Baroness Dean of Thornton-le-Fylde (Labour)
My Lords, I too thank the noble Lord, Lord Campbell of Alloway, for initiating this debate, although I feel that none of us would prefer to be in this position of discussing an issue that, frankly, should never have arisen in the first place. I have some sympathy for my noble friend the Minister who is to answer the debate, because some of the responsibilities in the Trooper Williams case, which has become the cordon around which we have all drawn, are not totally political. There are many answers to come from the MoD itself.
I am pleased that the debate has drawn my noble friend Lord Moonie to make his maiden speech. He had a period at the Ministry of Defence, probably when the International Criminal Court and the Human Rights Act were being debated. I look forward to his contribution and I am delighted that he has joined us in this House.
Last week we were all expressing our support for our emergency services, and rightly so. The threats that those people bravely faced last Thursday are the kind of threats that the young men and women in our Armed Forces face day in and day out when they are on operations. They are in an entirely different situation from the sort that any of us in this Chamber, or anywhere else in civil life, face from day to day. They are well trained and professional. I had the privilege of seeing them in operation in different parts of the world when I was chairman of the Armed Forces Pay Review Body. I was always impressed by their commitment.
Things do go wrong, however. Wrong decisions and actions sometimes take place. When that happens, I do not think anyone in this Chamber would say that a duly diligent investigation and discipline are not required. That has to take place. However, I am concerned about the element of double jeopardy, which emerged strongly in the case of Trooper Williams. My concern is about the way in which the case appears to have been handled. A decision was taken to hand it to the Attorney-General. That was, frankly, irresponsible. As the noble and gallant Lord, Lord Bramall, said, it was totally remote from the realities of the situation and the report submitted by the officers in the field in command of Trooper Williams.
That is just picking up one case. My noble friend Lord Hoyle rightly identified another case in the Queen's Lancashire Regiment. As a Lancastrian, I too am concerned about that. The concern has to be not in highlighting two cases—one real and one potential—and perhaps others; it has to be in getting this situation right. If we ask people, as part of their compact, to defend our country, to go out and project the policy in the field of operation, we have a responsibility to them. They have a responsibility to follow the regulations. The commanding officer in the Trooper Williams case said that he did. We have a responsibility to answer that.
The ramifications of this case go right the way through the Armed Forces. The young man and woman joining the forces need to know, when they are sent out on an operation, that they have the leadership behind them and that leadership will be demonstrated in a responsible way. In these cases, their judgment was reasonable, as they were dealing with people who were up to no good and may have threatened their lives.
I do not know what went wrong in the MoD. I rather suspect that at the moment it is a case of passing the parcel. My goodness, it went very badly wrong. We should be aware of why those decisions were taken. The noble Lord, Lord Campbell of Alloway, has identified that. But I wonder whether the case would have reached the notice of this House if Trooper Williams had not had the support of his own regiment, other people in the services and outside.
I know that there are concerns about the International Criminal Court and the European Convention on Human Rights. Perhaps we need to review that. I know that we need some answers. We must carry through our commitment, our part of that compact with the Armed Forces. We need to ensure that they feel safe in their regulation and leadership. If they take a wrong decision or break the regulations—none of us knows how we would react if faced with the situation that Trooper Williams faced—if their errors were genuine and they had tried to keep and did keep within the regulations, they need to know that they will not then face what I call the double jeopardy of a charge of murder. The Trooper Williams case took two years, and I can just imagine the feelings in his home. I cannot think of many people who would have carried it with the dignity shown by Trooper Williams.
Later this year the Armed Forces (Parliamentary Approval for Participation in Armed Conflict) Bill will be debated in the other place. Eventually it will come here. These cases highlight the need to pay great attention to detail when we come to discuss the Bill. When my noble friend the Minister comes to reply, will he help us, first, by indicating that these experiences will be taken into account when the Bill comes before us and, secondly, by assuring us that the Government will have a listening ear when we raise the issues that come out of decisions in a court where they should never have appeared?
Lord Vincent of Coleshill (Crossbench)
My Lords, I, too, am grateful to the noble Lord, Lord Campbell of Alloway, for initiating the debate on the interpretation of military law and its application to members of the Armed Forces, particularly in the case of those who have been committed to military operations.
Let me make it clear at the outset that I accept fully the need for members of the Armed Forces to be accountable for their actions undertaken within a relevant legal framework, including the specific rules of engagement that are applicable in each operation. But it is equally important that those who define and apply such legally binding criteria do so in a form that is compatible with the nature of the operations our Armed Forces have been directed to undertake.
Those who have formal responsibility for investigating and dealing with possible cases of misconduct on military operations also need to take account of their unique and changing characteristics. Military operations have no equivalent in any other context that I can think of, whereby members of our Armed Forces are required to go when and where they are directed and, if needed, to put themselves in harm's way, often repeatedly in unforeseen and highly confusing operational environments.
I referred to "the changing characteristics" of such operations for reasons that have become increasingly clear in Iraq and Afghanistan. Today, our Armed Forces are not operating in environments only where there has been no declaration of war or where their adversaries wear no uniform, they also have to respond to terrorists who seek to conceal themselves as members of the population at large whom our Armed Forces are there to help and to protect.
Furthermore, such adversaries have no commitment whatever to international agreements, such as the Geneva Conventions or the Human Rights Act. It is often a deliberate part of terrorist operations that they seek to exploit such legislation to their own advantage by ignoring it themselves while our Armed Forces are bound by it and accountable to it.
To cope with these complexities, our Armed Forces today, for most such operations, are issued with rules of engagement to provide direction on the degree of force that may be justified, including lethal force, under a wide range of operational circumstances. The potential difficulty is that the rules of engagement themselves can make it very difficult when critical decisions have to be taken—literally in seconds and often by junior ranks faced with life-or-death circumstances—to determine what degree of force can legitimately be used. This can often take place, as Trooper Williams experienced so clearly and dramatically, when your adversary has no such constraints on his actions whatever.
In a broader context, this more complex and demanding environment in which members of our Armed Forces now have to conduct themselves on operations is in sharp contrast to the experience and expectations of our society at large which increasingly expects to be protected by such legislation as the Human Rights Act and Health and Safety at Work Act. And since the phasing out of national service in the early 1960s, together with the substantial reductions in our Armed Forces since the ending of the Cold War, an ever-decreasing proportion of our adult population, including Members of Parliament, the government and the legal profession, have any first-hand experience of military operations at all.
In one sense, that is greatly to be welcomed, because since 1945, our security and defence policies have generally proved so effective, despite the periodic alarms and excursions, that, for the population at large, we have overall enjoyed in this country the longest period of peace and growing prosperity in modern history. But one practical difficulty arising from this remarkable and welcome outcome is that there are ever-fewer people who can make genuinely well informed judgments based on hard-won military experience on active service about the justification or otherwise for the conduct of military operations by our Armed Forces, both collectively and individually. Clearly, in the case of Trooper Williams, this judgment went seriously awry until, after many months, the charge against him for murder was eventually dismissed with no case to answer. We need to learn the lessons that arise from that case, taking also into account the broader developments in society at large to which I have referred.
It is against that background that I read with interest the brief article by the Secretary of State for Defence in the House Magazine on
"What will the world look like in the years ahead, and how shall we change to meet the threats it will pose in defence of our rights and in the discharge of our global responsibilities? First, our security will be best served by going to meet the threats of the future, rather than waiting for them to come to us, as we once did. Second, those threats are likely to emerge in places which perhaps didn't show up on our radar screens a few years ago. They will be disparate, well-hidden and will be happy to use innocent civilians as cover, be it politically or physically. This is why we are building quickly deployable forces, embracing new technologies to ensure that we can best take advantage of our fleeting chances to strike at this new enemy".
If the members of our Armed Forces, who repeatedly put their lives on the line in such operations, are to be expected to,
"take their fleeting chances to strike at this new enemy",
they need to be empowered legally and relevantly to do so and, subsequently, to be judged on a realistic knowledge and awareness of the uniquely hazardous and uncertain environments to which, without any choice, they are committed. My question to Her Majesty's Government is: how is that to be achieved?
Baroness Park of Monmouth (Conservative)
My Lords, I wish to speak in the context of the present debate on the duty of care as it affects the relationship between the Government—the MoD—and our Armed Forces. Sir Michael Rose once said:
"Soldiers are not merely civilians in uniform. They form the distinctive group within our society which is required either to kill other human beings or expressly to sacrifice themselves for the nation".
They should not suffer because of our failure to seek a derogation or even a reservation when signing the Act.
As Lord Carver said at the time,
"In practical terms it would not be possible under severe active service conditions to apply most of the provisions of the Act",
and that is precisely when soldiers need and are entitled to be tried—if tried they have to be—within the service under well-tried military procedures and according to the rules of engagement.
The duty of care extends to ensuring that the forces are not put under unnecessary strain, a strain that is very likely to arise in a continuing campaign such as Iraq, where peace is not peace and war is not war and the enemy is very difficult to identify, and where it is even more vital for the morale of the troops that they know exactly what the rules are and how they are protected. In future capabilities, the committee in the other place concluded that many frontline units in the Army have for some years been experiencing an operational and training cycle whose intensity is unsustainable in the longer term and that the Strategic Defence Review had provided relatively little resilience. Good morale has therefore a practical necessity.
The committee thought that if the Army has only just enough personnel to man the proposed force structure, a lack of resilience could be expected in the future. But meanwhile the Government are taking on more and more tasks. The present emphasis on expeditionary operations may not be taking sufficient account of whether there are actually enough boots on the ground. Increasingly, the Armed Forces are being committed to EU and UN plans for battle groups, the initial operational capability, support for an AU force, including possible action in Africa, and filling the large shortfall in the European capability. Little or none of that was foreseen in the Strategic Defence Review, and neither the EU nor the UN are capable of managing all those forces.
Meanwhile, the Prime Minister's Strategy Unit has produced a massive, glossy, 161-page tome, Investing in Prevention: An International Strategy to Manage Risks of Instability and Improve Crisis Response. Why that was necessary as well as the Global Conflict Prevention Pool in which the MoD, FCO and DfID work together is far from clear. The MoD's strategy Delivering Security in a Changing World already envisages that the UK will be regularly engaged in stabilisation and post-conflict efforts, with all their special problems—for the foreseeable future. The only thing for which HMG evidently has no plans is where to find the available resources.
Due care should include not only the safety and reassurance of judgments within the military system; it should consider morale in other areas. That includes the anxiety which will be suffered by families and the doubts of potential recruits.
I am baffled by the immense tome from the Strategy Unit compiled by 28 policy analysts, of whom only three were from the MoD, and a red team of five, of whom one was—surprise, surprise—a partner in McKinsey's. It is full of diagrams, tables, recommendations on everything from supporting NEPAD and the EU to an incentive to capacity matrix, figures, boxes, tables, strategies and basic instability frameworks. I should not be surprised if the cost of this tome in terms of staff and production would not go quite a long way to improving service housing.
The Government are failing in a duty of care, both in legal and in moral terms. Co-ordinating war-making and the subsequent peace-building is sensible, but not confusing and diluting the role of the Armed Forces in an attempt to treat them as if they were civilians, just like you and me. They are not, any more than DfID is composed of diplomats or soldiers.
The MoD is not there to operate, as it seems it did, on the basis of political correctness. That is the last thing that should concern it. For our part, we have a simple duty and noble and gallant Lords are certainly fulfilling that today. We must demand that the Government protect the troops as they protect us and allow those troops the safety and reassurance to which they have a right.
Lord Guthrie of Craigiebank (Crossbench)
My Lords, in no way should my words be construed that murder or criminality, including prisoner abuse, be tolerated. Our service men and women must operate within the rule of law, wrong-doers must be sought out and punished, and, of course, necessary investigations into serious allegations must take place.
But if we have to commit our forces to situations such as pertain in Iraq and Afghanistan, we should recognise what we are asking them to do and just how hostile, frightening and stressful the environment is in which they must operate. They are often in mortal danger and tired. They are expected always to make considered decisions and take correct actions when the situation in which they find themselves is far from clear and their own and others' lives are threatened. That would be extremely challenging for anybody, but we are asking a great deal of young soldiers who are put under huge pressure. That pressure has been experienced by few people outside the services and rarely by those who craft our laws and are responsible for our legal system. Difficulties are compounded in theatres such as Iraq when the rules of engagement designed for a war are suddenly changed to those required for internal security.
This debate is so important—I wish it could have taken place many months ago—because undeniable damage to the Army's trust in the chain of command has occurred and it could have been minimised. The risk of morale suffering further is real. Many people, I am afraid—rightly or wrongly—think that the system is unjust. We also run a risk of making our services risk averse, which would have serious implications for operations.
It is no good for the Ministry of Defence to claim that it does all it can to help soldiers. The perception of many soldiers is that the very minimum is done. Indeed, the defence team in the sorry affair of Trooper Williams, including both the civilian barrister and solicitor, said that they had no positive assistance from the Ministry of Defence at any stage. As we have heard, fortunately Trooper Williams had support, as one would expect, from his own regiment, his commanding officer and his immediate chain of command. He had a champion in a retired general, Sir Antony Walker. His own regiment raised a fighting fund of some £68,000, subscribed to by nearly 3,000 people who had heard or read of Trooper Williams's plight.
The overwhelming majority of service men and women are thoroughly decent young people who are caught up in conflict. They act in good faith, but sometimes unwisely. Of course, as I said, some investigations are necessary but many, I suspect, have more to do with political correctness, the culture of "somebody must be blamed" and fear of compensation demands. They may be done to pacify the ill- intentioned or as a defence against civilian solicitors from the United Kingdom who are touting for business on the back streets of Basra.
The Special Investigations Branch has a huge responsibility to carry out investigations objectively. One very experienced and well respected operational commander told me recently that his soldiers were of the firm opinion that the Special Investigations Branch had become more interested in achieving prosecutions than searching for the truth. Experienced civilian lawyers have also said how shocked they have been by the attitude of the Special Investigations Branch to the soldiers they have been representing. This is enormously damaging to confidence and trust.
I ask the Minister to answer two questions that he has already been posed. First, when I was Chief of the Defence Staff, I was assured that it was unthinkable for British service men and women to be sent to the International Criminal Court. Can the Minister assure the House that that is still so?
Secondly, can the Government give serious consideration to the British Armed Forces, like the French forces, opting out of their commitment to the European Convention on Human Rights? Many of us feel that we should, in view of our experiences in Iraq.
Lastly, I feel uncomfortable about the situation in which we find ourselves. We went to war in Iraq—quite rightly, in my view—and committed our service men and women to perhaps the most difficult and dangerous operations that our forces have faced for many years. They deserve our full, unequivocal backing. I wish I could say that, so far as concerns our debate today, I thought they had it. I implore Ministers—particularly the new Secretary of State, who is much respected in the defence community—to examine what can be done to restore confidence and not to rely solely on advice from the legal services in the Ministry of Defence and their normal MoD briefers. They should hear, in addition, from the officers and soldiers, who have been investigated and who fought in Iraq, and their commanders—those who have been on the receiving end and feel, like Colonel Collins, that they have been "hung out to dry".
There is now a feeling that the Ministry of Defence, at the highest level, does not recognise that we have a problem. Does the Minister? Today, I am afraid that we should feel ashamed.
Lord Boyce (Crossbench)
My Lords, I wish to focus on the vital linkage between the chain of command and the summary discipline system. 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.
It is discipline that ultimately underpins the way individuals respond to command. This necessary responsiveness and willingness, inculcated in everyone because they know exactly where they stand, has long been recognised in the British Armed Forces as essential to the maintenance of operational capability and the ability to win—even when against the odds. Our history is littered with relevant examples.
That is why it is not just right, but essential, that the commanding officer himself should exercise disciplinary powers over those in his command. He is best placed to understand the circumstances of service life and of his particular unit—and the causes and significance of misconduct by those under his command. Parliament has legislated upon this very basis by providing a system of summary jurisdiction based around the commanding officer. This summary system of justice applies both within the United Kingdom and abroad—with the vital principle that it is consistent in application and that the individual soldier, sailor or airman is subject at all times to the same rights, powers, procedures and penalties under that system.
While there may be purist legal arguments for ensuring that those who decide guilt and punish offenders are independent of the person accused, we interfere with the unique linkage between the commanding officer and his men at our peril.
It is the commanding officer who will know best the importance of enforcing discipline by punishing misconduct expeditiously, with the whole unit being aware that justice has been done, and been seen to be done. The need for prompt action is true of any disciplinary system—but on operations it can be even more vital to deal swiftly with misconduct. The importance of having effective means for the commanding officer to deal with misconduct in deployed ships and submarines—as I know well from my experience—or indeed in any deployed unit, from whatever service, is vital to maintaining morale.
The commanding officer's summary powers enable straightforward dealing with offences—face to face between the member of the unit and the commanding officer—and are based on trust, authority and impartiality. I am absolutely certain that they play a vital part in underpinning our Armed Forces remaining world class, capable of operations across the full spectrum from diplomacy to direct action. Incidentally, I would contend that they are also why our Armed Forces have high morale and relatively low levels of criminality.
Of course there must be safeguards; but we see far too many examples of Ministers being tempted to deal with concerns in an organisation by bolting on some sort of independent oversight or adjudication. If we continue travelling down this road, there will come a point where the close relationship between a commanding officer and his or her people will be lost—and if that is destroyed, the consequences will be serious.
I am afraid that the summary system itself is under such sort of attack, and even if the Baines case currently before the courts goes in the Armed Forces' favour, I have no doubt that there will be similar raids on it in the future, and then that the MoD will follow habit and cave in to ginger group pressure. Will the Minister confirm unequivocally that the Government still believe there is a vital need for commanding officers to be able to exercise disciplinary power over those under his or her command? And can he confirm that he is committed to the integrity of the chain of command free of outside interference?
I turn to the issue of the individual liability of commanding officers for their actions, where it is very easy to underestimate the effect of threats of legal challenge on commanding officers. Naturally, we expect them to behave lawfully, but there are those without relevant responsibility who seem all too ready to challenge the actions of particular commanding officers. It is expecting a great deal of the individual that he or she puts out of their mind such considerations on the eve of battle. It is a fact that commanding officers do perceive that they are becoming increasingly vulnerable to legal challenge for their actions. I believe that we are going to see that generating real risk-averseness, clouding good military judgment.
In this context I would mention the threat of being taken before the International Criminal Court. While I accept that it will be an extreme that sees the ICC gaining jurisdiction, the theoretical possibility does exist. The Williams case—which I know is not an ICC issue—does not fill me with any confidence at all about the Government supporting their fighting men and women. I am also sure that we will see creeping jurisprudence of the sort that has afflicted the European Court of Human Rights—created post-war, quite rightly, to cater for the excesses of Nazism but now dealing with such weighty matters as school uniforms. Can the Minister confirm that the Government believe that their legislation must not make service men and women risk-averse through fears of personal liability? If he does so confirm, I have to tell him that the message is not getting to the front line.
Your Lordships will not mind me, in this bicentennial year of the Battle of Trafalgar, recalling one of Nelson's famous command directives:
"No captain can do wrong if he lays his ship alongside that of the enemy".
The Armed Forces are under legal siege and are being pushed in a direction that will see such an order being deemed as improper or legally unsound. They are being pushed by people schooled not in operations but only in political correctness. They are being pushed to a time when they will fail in an operation because the commanding officer's authority and his command chain has been compromised with tortuous rules not relevant to fighting and where his instinct to be daring and innovative is being buried under the threat of liabilities and hounded out by those who have no concept of what is required to fight and win.
Lord Moonie (Labour)
My Lords, I congratulate the noble Lord, Lord Campbell, on succeeding in gaining a debate on this important subject. It is also a great pleasure to follow the noble and gallant Lords, Lord Boyce and Lord Guthrie, in speaking today in my maiden speech, as I worked with them for several years in the Ministry of Defence.
Using the word "maiden" to describe an old political hack like me is perhaps stretching the point a bit, after the years I spent in another place. However, I should like to record my sincere gratitude to the staff of the House for the way in which they ease the passage of Members into it and the help that they give us. From my dim recollection of 18 years ago, it is quite different from the situation that applied then in the House of Commons. I am grateful for the welcome that I have received also from old friends, some of whom I have known for nearly 40 years. I look forward to spending time with them now in the House.
I understand that a maiden speech should be short and non-controversial. I certainly do not mean to contravene such long practice. Should I stray beyond the bounds of accepted practice, I will be happy—I know it is not the done thing—to take interventions. I am blessed with a thick skin, as you can see, but, I regret to say, also with a fairly sharp tongue; so do it at your own risk.
It is five and a half years since I first became a Minister in the Ministry of Defence, and almost my first duty was to take what is now the Armed Forces Discipline Act 2000 through its Committee stage in the Commons. I had long experience in opposition of taking Bills through, and as the Ministry of Defence is not noted for the number of Bills with which it has been landed in the course of its existence, other than the quinquennial review, they were glad to find someone who had more than a passing acquaintance with how Committees worked.
The Act, of course, brought in a wide range of changes in the way in which members of the Armed Forces are disciplined, both in their unit and at court martial, consequential to the incorporation of the European Convention on Human Rights into British law and to the results of one or two prior judgements from Europe that forced the changes on us. I fully supported the action that we took then, and I still do.
Members of our Armed Forces enlist or are commissioned in the full knowledge that they may be called on to pay a very heavy price—sadly, sometimes, the ultimate price—for their service. Surely, they are therefore entitled to expect the same protection during legal process as any other British citizen, with the strong proviso—I agree with the previous speaker on this—that that should not be to the detriment of the operational effectiveness of their unit. That is the test that must be applied to the Act, now that we have seen it in operation for five years.
At the time, Ministers including myself gave certain assurances to the effect that we would look closely at how the Act was operated. If the service chiefs and their predecessors feel that problems are arising as a result of the operation of the Act, it is high time that it was reviewed. Our Armed Forces, after all, are the best in the world, and we want them to remain so.
That brings me to the second problem germane to the debate; namely, the perception that the setting up of the International Criminal Court and this Administration's support for it represent an intolerable burden for our Armed Forces. The example of Private Williams has rightly been cited, with the difference of opinion that arose about how that tragic accident should be dealt with between the chain of command and the legal department. Clearly, the course of action in any individual's case will vary depending on the danger of the situation and the rules of engagement in operation at the time. In particular, the taking of human life is something that requires a very full justification.
One can argue for ever about whether the action taken in the case of Private Williams was correct or not. Perhaps I may put on record the fact that I was glad that the case did not proceed, although I regret the time that it took to come to that decision. In passing, I also think that it was unfortunate—I am no jurist—that the charge brought had to be murder. We have seen that before in situations involving soldiers who have discharged their weapons and killed someone, particularly in Northern Ireland. Surely, it would be preferable to have a greater range of options available, so that a charge could be brought and justice administered in a fashion appropriate to the offence that is said to have been committed. Having no option other than a charge of murder is a great failing in our legal system and one that should be remedied as soon as practicable.
Nevertheless, in order for us to be sure that we comply with the law and avoid the chance of charges being brought in the ICC against British service men and women—I agree with the noble and gallant Lord, Lord Boyce, that it is a theoretical possibility, but only a theoretical possibility—we have to ensure in this country that our legal proceedings do not render us liable to the proceedings of the court. We supported the court coming in; we can hardly cavil at the fact that a case could be referred to it. That cannot be allowed to happen, and we must ensure that it is not allowed to happen by ensuring that our legal procedures are correct. If that is the case, we have nothing to fear. I do not think that it is something that any of us would wish.
Sadly, in a case such as Williams, there will be some doubt—but in very few cases. The Ministry of Defence has said that of 70,000 service men and women who have served in Iraq, nine case have been brought under civil law to date. That is a very small number, but it is an indication that we look very carefully at the disciplinary procedures that apply and step in only when we feel that it is absolutely necessary to do so. It is right, after all, that our people should be able to operate in life-threatening situations without constantly looking over their shoulder for approval from somebody. They must be able to do that, but it is surely equally correct that wrongdoing is properly dealt with and that justice is not only done but seen to be done.
Lord Mayhew of Twysden (Conservative)
My Lords, I am delighted to have the privilege of congratulating on behalf of all of us the noble Lord, Lord Moonie, on his maiden speech. He has brought great political and professional experience to his membership of this House, and I know that we all look forward to hearing him contribute on many further occasions. As an old political hack—to use his engagingly modest description of himself—I know that he will recognise why one would like to say very much more by way of welcome than a time-limited debate permits. But he is very welcome and I am delighted to have the privilege of congratulating him.
At least two noble and gallant Lords have pointed out that service people on active service, including on dangerous operations, do not expect or require to be exempt from the rule of law. I know that to be true but I know something else as well, that they expect and need to be treated by the enforcers of the rule of law with realism and fairness.
Having listened to the speech of my noble friend Lord Campbell of Alloway, whom I too thank for this debate, it is perfectly clear to me that the overriding question in the case of Trooper Williams lies in the reasons that led the Director of Army Legal Services to refer the case to the Attorney-General. It is particularly good that this debate has been afforded to us because it has already thrown much needed light upon that most disturbing case. More light is needed, and I hope that the noble and learned Lord the Attorney-General will produce it, because it is too much to expect the Minister who is from a quite different department to provide it.
Why is the Attorney-General not here? He played a crucial part in the reference of this case to the Crown Prosecution Service. He must have endorsed the Crown Prosecution Service's subsequent decision to recharge Trooper Williams in the civilian jurisdiction. Much as I admire and like the noble and learned Lord, I find it astonishing that he is not here today.
Your Lordships will recall what my noble friend Lord Campbell said about the letter sent by the Adjutant-General to the Chief of the General Staff explaining why, in the Adjutant-General's view, it was necessary to invite the Attorney-General to review the case. It is quite extraordinary that that letter cited reasons which—as the House will recall from what my noble friend Lord Campbell of Alloway said—were quite extraneous, to use his words, to any proper decision as to whether someone should be prosecuted for any offence, let alone for murder. They included the pressure of ginger groups arising out of the deaths of civilians in Operation TELIC in Iraq and concerns for the future of the military justice system if a cause célèbre were to grow up among pressure groups. These are, as accurately as I can recall them, direct quotations from that letter.
It is a very serious situation indeed that that action was taken in circumstances which ran against what was the clear policy and scheme of the Army Act, because your Lordships will recall that before this occurred the commanding officer—acting upon strong advice from Colonel Barnett of the Army Legal Services, which was itself endorsed by his superior in Iraq, who I believe was called Colonel McElvoy—had dismissed the charge of murder on grounds that there was insufficient evidence. Although the decision in military law rested with him, what alternative, effectively, could possibly have presented itself to him? So far as I know nobody has criticised him.
It therefore becomes necessary to see what led the Director of Army Legal Services to circumvent the policy of the Act, which provides that once a case of that kind has been dismissed it cannot be taken to a higher military authority and tried by court martial. Well, we read the letter that was sent. It is very important to realise—and we get it from a paper put by the Attorney-General in the Library of the House in 2004—that the Director of Army Legal Services is also the Army Prosecuting Authority, and that he is required to be independent of the chain of command. The Attorney-General said in a Written Statement to this House that the matter was referred to the Attorney-General on behalf of the Adjutant-General. How could the Army Prosecuting Authority—the Director of Army Legal Services—have been acting independently of the chain of command if he acceded to a request and acted on behalf of the Adjutant-General? That is a most serious question that needs to be answered. I am very much afraid that he referred the matter because he was asked, and indeed told, to do so from on high.
Very important questions have been raised and in a short time one cannot begin to do justice to them, but I do have to point with great regret to the fact that there is surely a reasonable perception that there was somewhere an unhealthy determination that Trooper Williams was going to be made to face this charge. I share the great relief expressed by the previous speaker, the noble Lord, Lord Moonie, and by others, that at the end of a very long day he was acquitted because the Crown Prosecution Service threw the towel in for lack of evidence.
Lord Inge (Crossbench)
My Lords, like other noble Lords I thank the noble Lord, Lord Campbell of Alloway, for initiating this very important debate. It is an enormously important issue, because if the integrity and authority of the Armed Forces' chain of command is undermined it will have serious implications on morale and the fighting effectiveness of our Armed Forces.
A robust and, I stress, trusted chain of command is much more than a system for passing information and orders. Nor is it about discipline and punishment. Very importantly, it is about confidence and trust in the chain of command from the very bottom to the very top. Military command is very personal and very different to civilian life, not least because a military commander may have to lead men and women on operations where their lives may be in great danger.
The whole chain of command has a duty for its servicemen and servicewomen and must do its best to ensure that it balances the care with the rights and interests of the civilian population and the law. Troops are assured by their officers that if they act in good faith and obey the rules of engagement they will be supported.
At the same time a commanding officer and the chain of command have significant powers of punishment, but I must stress that it is not fear of punishment that makes our servicemen behave honourably in battle. The fact that our servicemen have such a high reputation is due to training, to pride in their unit, self-respect and, very importantly, their commanders—that is, the chain of command. But I am left with an uneasy feeling that that trust is being eroded.
In the case of Trooper Williams the public and many in the Army gained the very clear impression that it needed a team led by General Sir Anthony Walker—a retired general in Trooper Williams's regiment—to make sure that Williams was being properly cared for and looked after. I know less about the Colonel Collins case, but his book makes it very clear that he felt that he had been deserted by the chain of command.
My concern is compounded by the fact that 176 cases have been or are being investigated, and those include what I would call normal military fire-fights against the enemy in a war zone. The fact that the great majority of the cases have been dismissed is not the point, given that Iraq is a war zone. But the fact that those cases are being investigated sends a terrible message to the soldiers.
I hope that military commanders throughout the chain of command are fully engaged, as well as the lawyers and civil servants who advise Ministers. That may sound unfair, but that perception is held by many. Let me make it absolutely clear that I am not saying that it is acceptable for prisoners to be appallingly treated or, even worse, for people to commit murder. I believe in the rule of law, but equally we have to recognise the realities of operational service in places such as Iraq.
The situation in Iraq has been well described by General Lamb, a divisional commander there with considerable operational experience. He is certainly not prone to exaggeration. He described it as highly volatile, highly dangerous, and the worst situation that he had experienced. He confirmed the state of lawlessness and the huge pressure on his troops working in dreadful physical conditions, never knowing when in a moment an apparently benign situation would turn into a lethal attack. British soldiers have been killed and gravely injured. They faced mortar bombs, shelling, stoning, shooting and any kind of potentially lethal attack.
Yesterday when I was in the Ministry of Defence, I was assured that a soldier would not have to appear before the International Criminal Court provided that the charge against him had been investigated by the military justice system, even if that charge had been dismissed. However, having heard some of the comments made today, especially those of the noble Lord, Lord Hoyle, I would like the Minister to confirm that what I was told in the Ministry of Defence yesterday is correct. Certainly, I would dread the day when a member of the British Armed Forces was tried by that court, because I believe passionately that if a soldier on operational service has broken the law, he should be tried by his own nation and not subject to the humiliation of going to the International Criminal Court.
Like the noble and gallant Lord, Lord Guthrie, I have heard the concerns from lawyers and some commanders about the questioning techniques used by the Special Investigations Branch of the Royal Military Police. It is an organisation of which I once had the privilege of being the colonel commandant. They believe that technique to be unduly aggressive and biased, and that it appears to be based on the supposition that those whom the branch is investigating are guilty and that it is its duty to prove it.
I seek assurance that the huge emotional and practical importance of the military chain of command, from the commanding officer right up to the Ministry of Defence and Ministers, is really understood. As I have said, my concern may be about perceptions, but I assure noble Lords that those perceptions exist. Therefore, the chain of command throughout its strength has to make it clear that a serviceman will be looked after by the chain of command, whatever his offence. It would be disastrous if servicemen lost faith in the chain of command, and there would be a danger that they might hesitate to use lethal force for fear of prosecution and their lives might be needlessly lost.
In addition, it would be disastrous if we undermined the military justice system, which is a free-standing criminal justice system equal to that of a civil jury trial. If people such as Trooper Williams and others are to fight on the nation's behalf in areas as dangerous as Iraq, they are entitled to expect not only that the chain of command will keep its word, but that the Army and therefore the nation will support them provided that they act in good faith.
Lord Ramsbotham (Crossbench)
My Lords, like all those who have spoken before me, I thank the noble Lord, Lord Campbell of Alloway, for securing this important debate, in which I found myself nodding in agreement with so much of what has been said. I come at the case from the position of a former principal personnel officer, as Adjutant-General responsible for both disciplinary and legal matters in the Army.
I begin with a cautionary tale, which echoes concerns referenced by my noble and gallant friends Lord Bramall and Lord Guthrie. One day, my opposite numbers in the Royal Navy and Royal Air Force and I were told that, in future, we would have to include industrial tribunals in our service disciplinary chains. When we asked where that direction had come from, and whether they were to come before or after Her Majesty the Queen—who was the final point of appeal—we were told that such questions were irrelevant because the Bill making such a requirement law had emanated from Brussels, and had already had its First Reading in another place. France, Germany and other NATO allies had sought and been granted dispensation for their Armed Forces, but the United Kingdom had not.
On seeing the Bill, the director of Army Legal Services told me that it was potentially disastrous for the Army's operational chain of command. It allowed employees to take their employers to industrial tribunal if ordered into a place of danger. Carried to logical, or illogical, conclusion, that meant that company commanders could take their commanding officers to industrial tribunal if ordered into an attack. What nonsense. No wonder our allies sought dispensation for their Armed Forces, as we subsequently did.
I mention that to indicate why the Armed Forces become nervous whenever there is a suspicion that the integrity of their chain of command is under threat from people who do not understand the requirements of organisations that are required to operate in war as well as peace. That has been creeping up on us for some time.
I should like to focus on the word "integrity", because it is at the heart of the case. Leadership is central to any operational organisation—especially the Armed Forces—that may be required to go to war. Central to the exercise of leadership is a chain of command, based on two key words—responsibility and accountability. Central to leadership itself is the word "trust". Every individual in the chain must have trust in its links, that they will get a fair deal from their commanders at all levels. Central to that trust is confidence in the integrity of Ministers, officials, commanders and staffs, which they have to earn.
The chain is not merely a conduit for the passage of orders, but the means by which commanders exercise their levels of responsibility downwards and their accountability upwards. It links Ministers and chiefs of staff with individual soldiers, sailors and airmen, and is used for all purposes—operational, disciplinary, personnel management, logistics and so on. It is simple, clear and visible. It has stood the twin tests of time and war.
Sadly, such clearly defined chains of command are becoming increasingly rare as Ministers and officials, lacking practical experience of either service in the Armed Forces or the exercise of operational leadership, are seduced by the cult of managerialism. A former Home Secretary claimed that while he was responsible for policy, he was not responsible for its operation. As commander of the brigade in Belfast, I could not have separated my responsibility and accountability for operations from policy.
It is axiomatic that Armed Forces must act within the law, and it is the responsibility of commanders at all levels to ensure that they do so. That does not mean only the law of the land, but the law of armed conflict, service law and human rights legislation, subject of course to change. To ensure that that happens, chains of command must bear both operational and legal authority, with checks and balances to ensure that different levels are not abused.
There has always been a difference between legal authority in peacetime and on active service. When in-between conditions applied in Northern Ireland, soldiers were helped to understand the rule of law by the issue of a yellow card that spelt out what could and could not be done. Unfortunately, the same practice has not been applied to post-Cold War situations such as those in Iraq, and our servicemen are now faced with an almost impossible situation. Allegedly they are not at war, despite constant attack, and yet the Prime Minister asserts that the nation is at war with both drugs and terrorism. Servicemen acting in bad faith should expect to be disciplined; servicemen acting in good faith should expect to be supported by the chain of command that put them in a position in which they had to act.
What I find most uncomfortable about much of what has been said in this debate is that it discloses that all is not well with the trust that members of the Armed Forces, and particularly commanding officers, ought to have in the support that they will receive from their chain of command. I am disturbed to hear criticism of the lack of support for such as Trooper Williams from members of the Army Legal Services, who are there to help and not to hinder. As a former director of public relations for the Army, I am disturbed to learn that that post, responsible for both advising and protecting people, like him, who come into the public eye, has been dispensed with.
The Government demand a great deal of our overstretched Armed Forces, setting them tasks that they continue to perform supremely well, to the envy of other nations. We owe it to them not to make those any more difficult. I hope that Ministers and officials will resist any temptation to interfere with the integrity of their chain of command, so central to their performance, whether by failing to seek dispensation from inappropriate legislation, or attempting to substitute managerialist techniques for the exercise of operational leadership.
Lord Tunnicliffe (Labour)
My Lords, I too thank the noble Lord, Lord Campbell, for introducing the debate. I rise with trepidation and contribute in awe of the noble and gallant Lords who have all spoken on a similar theme. I fear that my comments might be misinterpreted as lack of loyalty to the Armed Forces. I affirm my personal loyalty and commitment to and admiration of the work of the British Armed Forces, in the honest knowledge that, when I look into my own soul, I am not sure that I could meet the challenge that they meet daily.
Nevertheless, the Armed Forces exist in the context of a modern, democratic nation. We have a duty to the Armed Forces to equip them, to train them, to develop them, to remunerate them and to care for them, and we have a responsibility to create the right legal framework. As a nation, we must also be accountable for our soldiers. Our great ally, the United States, has done immeasurable damage to its reputation by failing to manage one or two or perhaps a dozen or so individuals who have not been controlled properly and who have not been held accountable effectively by the system.
If the nation is to be accountable for its soldiers, the Armed Forces must be accountable. At the end of the day, accountability is a process that holds individuals accountable. If we want to meet the standards of our nation, we must, inescapably, have a system of accountability for all members of the Armed Forces.
The consensus is that the normal criminal law would be inadequate and that the circumstances in which people go to war are special. It is unusual in law to have such a special piece of law, but there is nothing between us in the need for that. Any system of law has, as part of its execution, proportionality, and, whether we like it or not, a death is a serious event. It is entirely reasonable that a process of law and of accountability will take a death seriously.
I shall not review the Trooper Williams case—I do not know enough about it and I do not believe that I would add anything to the debate—but his principal punishment has been uncertainty. That uncertainty comes from ill administration in many areas: a series of individual decisions that, with the benefit of hindsight, appear unsatisfactory. He is not alone. Unfortunately, on many occasions, we do not provide timely and wise processes, particularly the CPS. I know of many people who suffer the punishment of uncertainty.
Let us look forward and consider what is to be done. We must not take away the burden of accountability. It is crucial that our Armed Forces are accountable to a standard that commands the respect of the international community. That is one of the features that cause us to stand out as a nation. We must not do anything to take away that accountability. It is clear that the administration of justice by the agents of justice did not serve Trooper Williams, the Army or the reputation of the Army and our nation well. As individuals and as a government, we must constantly apply pressure for the agents of justice, within the military and without it, to be more efficient and to be more capable of timely and wise administration.
What else can we do? Together, we can work on the new Armed Forces Bill, on the tri-service Act, or whatever it is to be called. That can take account of the many problems faced by the modern military. It can meet the essential elements of being fit for purpose, of securing appropriate accountability and of assuring the men and women of our Armed Forces that it is fair and timely. If we can improve the law and its administration, we can maintain and improve the morale of our excellent Armed Forces.
Lord Marlesford (Conservative)
My Lords, we all owe a debt of gratitude to my noble friend Lord Campbell of Alloway for the devastating indictment that he has put before the House. The Armed Forces are overstretched. The Government ask too much of what is available, but they perform magnificently. Therefore, if our forces do not feel that the Government are fully behind them in performing their duty, that would be the last straw. Political interference with the command and control of the British Army in the theatre of war, most especially with the internal disciplinary procedures, which are vital to the effectiveness of any fighting force, is fraught with danger.
The morale of our troops at every level can be destroyed when they hear, for example, that their political masters have instructed the Special Investigations Branch to conduct investigations into every allegation of misconduct, however minor, and into every suggestion of misjudgement on the field of battle—and, "extraordinarily zealously". In such attitudes, there is a faint echo of Stalin's 1936 purge of the Soviet army. It meant that the professional military leadership had been removed by 1938, which nearly proved fatal in June 1941.
Seldom can there have been such a dire warning in peace time as that being given to the Government today by the noble and gallant Lords who have served our country by leading our Armed Forces with such distinction over the decades, several of whom have been decorated for their courage and effectiveness in the face of the enemy. This year, there has been much recollection of the years leading up to the 1939 war and the warnings given then on the coming call to arms. Therefore, it is astonishing for governments to appear not to recognise that life for the Armed Forces on active service is quite different from normal civilian life. War is different from peace. The same standards do not apply and cannot be imposed.
Many examples have been given of what has gone wrong. The story of Colonel Tim Collins, whose inspiring message to his troops on the eve of battle found a place on the desk of the Oval Office, is particularly lamentable. Let us be clear that to sacrifice our military efficiency to political correctness is wholly unacceptable. By "unacceptable", I mean unacceptable to the people of this country.
At this time, we are engaged in war against revolutionary terrorism throughout the world. Let me offer a definition of such terrorism. It comes from a book entitled Revolutionary Change, which was written by Professor Chalmers Johnson of the University of California at Berkeley and was published as long ago as 1983. He said:
"Revolutionary terrorism is the use of violence against insignificant people in order to affect the behaviour of significant people or their supporters".
Could there be a better description of what is happening daily in Iraq and of what happened last week in London?
Our Prime Minister is standing with Churchillian defiance against such actions. But, apart from those who, entirely legitimately, disagree with the military actions in Iraq and Afghanistan, there are those whose hatred of the motives as well as the actions of our Government leads them to use any means to discredit and undermine our Armed Forces. To some of them, every enemy death is murder. They shelter under the cloak of political correctness, but they are, for our country, an enemy within. It is for the Government, especially the Ministry of Defence, to defend the Armed Forces against them.
I hope that the debate will result in the Government giving much better backing, not just in resources and equipment—crucial though they are—but in political support for our Armed Forces. I believe that the superb professional efficiency of our Armed Forces is unmatched in any country and that their standing in the eyes of the British people has never been higher.
Viscount Slim (Crossbench)
My Lords, I believe that the route this Government are taking is towards making a soldier a civilian, instead of making a civilian a soldier.
Heaping enormous extra outside responsibilities on the shoulders of a commanding officer when he is the key person in command in battle is wrong. He has around him people from health and safety, prosecutors, SIB investigators and a tame, and often very courageous, journalist.
The military ethos is being destroyed. It is appalling that the Government today are besotted with political correctness. It does not work in the military. You do not kill or beat the enemy or the terrorist with large doses of that.
As other noble Lords have mentioned, there is mistrust. There is a feeling that those higher in the chain of command are not with the troops, but are all the time are looking at and investigating them with people who have never been on the front line.
In that connection, many noble Lords, like me, are amazed at what happened in Brussels. Why did our Government not protect and support the military? Who was in charge of this? Other countries seem to have made a sensible decision and obtained an opt out for their military, but not us. I call that bad government. I find it most unimpressive.
To shore everything up, the Government are now pushing new rules and systems. They are sliding everything to the legal side. In a short time to come, I can see the Minister, or the noble and learned Lord the Attorney-General, saying that he cannot say anything about a matter because it is sub judice. It is as if the politician today is getting himself out of responsibility and accountability. That is not good, but it is typical.
We have heard from much more senior persons than me about what happens in an incident, a battle or close-quarter combat. I would like to bring the Government Front Bench down to earth a bit. We could be looking at each other at half the distance between the Minister and me now. It could be night-time, raining or extremely dusty, and close-quarter combat could be taking place. I shall give two instances, because I am told that similar cases are among the 170 cases.
Two soldiers could enter a room, or go up a road or an alley and suddenly someone gets up with his hands up. I have learnt in practice that if a man puts his hands up, he is thinking and he is very dangerous. When you have the sort of enemy that we have today, who does not mind going to his maker more quickly than most normal people, a man with his hands up is a big problem. You cannot turn your back on him, nobody can. You do not know what he has on him. In the same way, you do not ask a man lying on the ground to stand up. That may be just what he wants because underneath him is a grenade with the pin out and the moment he stands up, he goes to his maker and will be a great martyr and the soldier is killed. Frankly, the solution in action in close combat is to give both these men two bullets. There is no question. Chaps in the rear area had better be familiar with that, but I am afraid that the investigators are not.
What really worries me is the treatment of a brave and honourable man who has put his life on the line and has done what in his eyes is his duty. What happens to him? He goes further and further back down the line, away from his commanding officer, his platoon commander and his NCOs. He meets only civilians and the odd lawyer dressed in uniform. He is lost. Where do you put him? Who is this honourable man's best friend? I have heard so much that is wrong and bad about the Y list that has been adopted. A soldier is forgotten and forsaken. He is not even approached. Who looks after him?
Furthermore, who looks after him when he has had his court case? The Minister knows from his time in industry that if a form has been filled in and a person has been interviewed, even if he has been exonerated or acquitted, he is looked at twice and an employer asks himself whether to employ him. Who is going to employ that exonerated, honourable man?
I believe that a lot is wrong here. The Government have forgotten that they are here to protect and support the soldier, sailor and airman. The other day, the Prime Minister said that it is time to get respect back. How much I agree with him. It is time that the Government started to protect, support and respect the military.
Lord de Mauley (Deputy Chief Whip, Whips; Conservative)
My Lords, I join other noble Lords in thanking the noble Lord, Lord Campbell of Alloway, for initiating this debate.
I start by declaring an interest as a recent commanding officer of a Territorial Army regiment. During my command a larger proportion of us went abroad to operational theatres than at any time since 1945. So I hope that the commanding officer's perspective might be helpful, as, indeed, might be that of the reservist, who can perhaps bring a civil/military balance.
The essence of the problem we are discussing is the erosion of the commanding officer's authority over his regiment or battalion, and also, as the noble Lord, Lord Ramsbotham, mentioned, commanding officers' real concerns that they are not supported by the chain of command, which I can confirm first hand.
One obvious case, but it is only one of several, is that of Trooper Williams of the 2nd Royal Tank Regiment, with which regiment mine has a close relationship and with whose commanding officer at the time, Lieutenant Colonel Hankinson, I have discussed the case. He was, I may say, the finest of commanding officers, having been selected from another regiment to come into the Royal Tank Regiment and whose calibre has been recognised in his subsequent promotion.
A number of other cases are pending, and we must take the lessons from the case of Trooper Williams, which is now concluded, and use them to avoid similar problems in the future. I hope that that is what today's most welcome debate might help to achieve.
What formerly happened when a soldier committed a potential breach of the rules of engagement was that his commanding officer investigated the matter with the benefit of all relevant witnesses, investigations by the Royal Military Police, and, if required, the Special Investigations Branch, and the legal advice he required. He made the decision as to the soldier's guilt, or lack of it, because he was trained and experienced to do so, and because he was the best placed man to do so, knowing the particular operational and environmental circumstances of the alleged offence. Provided the soldier in question did not appeal, the commanding officer's decision was final.
What happened in the Trooper Williams case was that, the above procedures having been properly followed, some faceless bureaucrat in the military justice system, with huge authority but no responsibility, was able to re-open the case and persuade the Army Board to refer it to the Attorney-General. Trooper Williams, the soldier in the line of fire, believed that he could not be tried twice for the same offence. He had, in his eyes, been tried by his commanding officer. To re-open the case with no new evidence undermined not only the authority of the commanding officer but also the justice of the system and the confidence of our soldiers in it.
Trooper Williams's rules of engagement were clear. There was no question in his mind that the lives of his military police colleague and himself were threatened. He was clear that he was absolutely entitled, indeed obliged, to fire. So he did. He was entirely within his rights—not only his rights but his duty.
The Army Act required his commanding officer to investigate, which he did, thoroughly, taking into account advice from the Army Legal Branch. He concluded that Trooper Williams had acted properly and in good faith. End of story. Who would have the arrogance to question him? But, as we all know, the case was re-opened, and a terrible injustice was done.
The British commanding officer is the unbiased but informed judge of his soldier, who well understands him to be entirely dispassionate and impartial. If anyone should question that impartiality, perhaps I may be permitted to quote from the speech of Colonel Tim Collins of the Royal Irish Regiment, who, like Lieutenant Colonel Hankinson, briefed his entire regiment shortly before going into action, whose words give the essence of the message being given to all our soldiers. Among other things, he said:
"It is a big step to take another human life. It is not to be done lightly".
He also said:
"You will be shunned unless your conduct is of the highest".
This matter is about judgment, training and experience. I do not think anyone would seriously question that British commanding officers, like their soldiers, are among the best trained in the world. I can say that senior officers of other armies cannot comprehend why we should not trust our commanding officers, each of whom, after all, we already entrust with the lives of several hundred men.
To challenge them represents a wholly unwarranted interference in a well tried military process. Interference of this kind arises out of a politically correct view that justice must not only be done but must be seen to be done. It parallels the political commissars of the Soviet Army who did not bat an eyelid at arranging for a young officer who showed unusual leadership flair to be shot for a trumped-up political misdemeanour.
It is wearing down the fighting spirit of our soldiers by eroding their trust and sapping their morale, and it is damaging our Army. Our enemies must be enjoying it. Imagine going to war with the idea in the back of your mind that you run the risk of being tried for murder for doing your duty.
Trooper Williams was eventually exonerated, having spent 18 months with a murder charge hanging over him. But if he had not been exonerated, it is us, the chain of command, right up to the top of government, who have put this 18 year-old soldier in the position in which he made his lethal decision. We have armed him, trained him and sent him on operations. We must take responsibility.
Lord Goldsmith (Attorney General, Law Officers' Department; Labour)
My Lords, with the leave of the House and with the leave of the noble and learned Lord, perhaps I may make an observation. As your Lordships may notice from my garb, I am presently appearing in front of the Judicial Committee of this House, arguing the validity of the Parliaments Acts and the Hunting Act. That is why I have not been present in the Chamber listening to the debate, which otherwise I would have wanted to be, even though it is rightly a matter for the Ministry of Defence to respond to the debate.
I wanted to take the opportunity to explain that as I understand that that issue has been raised, and so that your Lordships will understand that there is no discourtesy on my part. I shall of course read all noble Lords' contributions with the greatest of attention when I get Hansard. If your Lordships will allow me, I shall return to the Judicial Committee.
Lord Mayhew of Twysden (Conservative)
My Lords, with the leave of the House, having made a criticism of the Attorney-General for being absent, perhaps I may say that I accept and understand what he has just said. It just would have been helpful had we known about it in advance.
Lord Lloyd of Berwick (Crossbench)
My Lords, my contribution to this important debate—every speaker has so far described it as an important debate, and so it is—lies perhaps on the fringes, although it was briefly touched on by the noble Lord, Lord Moonie, in his excellent maiden speech. The point arises from my involvement in another case which has some similarities with the case of Trooper Williams. It is the case of Clegg, which is reported in Appeal Cases 1995 at page 482.
The facts of that case will be familiar to many, and I know that they will be familiar to the noble and gallant Lord, Lord Bramall. It concerns a soldier in Northern Ireland who fired a shot into the back of a car, which had been driven at speed through a check point. The shot which he fired killed one of the passengers in the car. The soldier was charged with murder, as was inevitable as the law then stood, and as the law still stands, because he clearly intended to cause either death or serious bodily harm. His only defence therefore could have been that of self-defence, but that defence was a difficult one to run, since he fired the fatal shot after the car had passed through the check point.
I shall return later to the importance of that case in relation to this debate. Perhaps I may first say very briefly something about the position of the Armed Forces in relation to the law. We had much discussion last year about constitutional questions; in particular, the rule of law. For me, the rule of law means simply that everyone, including the Government, is subject to the law. More important for the purposes of the present debate, it means also that everyone is subject to the same law.
In a free country there is not and cannot be one law for soldiers and another for citizens. I believe that all noble and gallant Lords who have made such powerful speeches today would accept that basic point. Indeed, we frequently boast of the fact that our soldiers are citizens in uniform.
It is true, as has been emphasised today and is often emphasised, that soldiers have to make split-second decisions involving life and death. Clegg had to make such a decision. Trooper Williams had to make such a decision. But so do the police, more and more of whom are now armed. They too have to make split-second decisions, but no one suggests that the police should be for any reason above the law or subject to some different law.
I remember a tragic case in Sussex not long ago, where two police officers shot an unarmed man in bed in the belief that he had a gun under the blankets. He did not. In that case the law had to take its ordinary course. That is what I mean when I say that both the police and our Armed Forces have to be subject to the ordinary law. That has always been a point of great constitutional importance.
Perhaps I may quote some little authority in support. Lord Mansfield as long ago as 1812 corrected, as he said, the,
"strange mistaken notion which has got abroad, that because men are soldiers they cease to be citizens".
Blackstone, in volume one of his Commentaries, wrote,
"In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms . . . [A soldier] puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier".
Finally, I quote Halsbury's Laws of England:
"It is one of the cardinal features of the law of England that a person does not, by enlisting in . . . the armed forces, thereby cease to be a citizen, so as to deprive him of his rights or exempt him from his liabilities under the ordinary law of the land".
Having said all that, it does not follow that I am satisfied with the law as it currently stands. That brings me back to the case of Clegg. I am not satisfied with the law. It should have been possible to charge Clegg with manslaughter, and not with murder, as had to be the case then and would still have to be the case now. If he could have been charged with manslaughter and if he had been found guilty he would have been subject to a modest term of imprisonment depending on all the circumstances of the case and not, as had to be the case, sentenced to life imprisonment.
That point has been made over and over again. We made it at great length in our judgment in the Clegg case. It is made by the Criminal Law Revision Committee, by the Law Commission and by the House of Lords Select Committee on the law of murder. The law of homicide is currently being considered by a Home Office committee. I have said before that I wish that committee had been more widely based. I hope that it will take into account the powerful things that have been said today and recommend a change in the law accordingly.
Earl Attlee (Deputy Chief Whip, Whips; Conservative)
My Lords, I congratulate my noble friend Lord Campbell of Alloway on introducing this important debate and remind the House of my peripheral interest. It seems that nearly all the meat on this skeleton has been comprehensively shotblasted off by noble and gallant Lords and other noble Lords, who have far more experience than me.
All noble Lords expected noble and gallant Lords to be tough, but in my 13 years in your Lordships' House I have never heard noble and gallant Lords being so forceful. My noble friend Lord Marlesford referred to their dire warnings.
The situation is bizarre and perilous. This Government, and to an extent their predecessors, have been steadily eroding the capacity of officers at all levels to exercise military discipline—and I mean military discipline. They do so as a sacrifice to the high altar of ECHR.
Yet, at the same time, they are surprised when things go wrong. They appear to be content for Trooper Williams and other similar cases to run their course. It seems that some are more concerned that officers maintain a perfect system of military justice instead of military discipline with checks and balances, and rather less about officers making poor tactical judgments with their attendant serious consequences.
The G1 situation is in extremely poor shape. We have undermanning and overstretch because we are operating outside the defence planning assumptions. Tour intervals are far too short. We have poor service accommodation. The TA cupboard is practically bare, and will be for at least another two years, because the TA has been used to sustain enduring operations rather than facilitate operations at the large scale of effort.
We are experiencing falling standards of discipline and military ethos, and the grievance procedure is under severe strain. It does not mean that our Armed Forces are no longer effective—clearly they are still extremely effective—but it does mean that we are not maintaining standards. The noble and gallant Lord, Lord Boyce, covered the need for the commanding officer to retain his powers. He did so far better than I could and I shall not attempt to do that myself.
What evidence do I have for my assertions? We have recently incorporated the Bail Act 1976 into service law. That means that servicemen can be detained only if there is a risk of them interfering with witnesses or absconding. It is not now easy to detain a serviceman for his own good or to protect other members of the unit from violence.
It is also much more difficult to take disciplinary action. Some time ago I informed your Lordships' House that I reported the driver of a heavy recovery vehicle towing another heavy recovery vehicle for reckless driving. He was speeding: he overtook me on the A303 when I was driving at between 60 mph and 70 mph. I reported the circumstances to the Royal Military Police and they did not take a statement from me, even though I was a well qualified witness. That meant that no disciplinary action could be taken.
A frequent complaint I hear from good-quality junior soldiers is that they see poorer quality soldiers "getting away with it". A good example is insubordination because it is difficult to provide a watertight case. It requires the judgment of the officers in the chain of command. Of course, it is a purely military offence: there is no civilian equivalent. But, at the same time, those good soldiers properly face disciplinary action for what I call "there but for the grace of God go I"-type offences. I have been there myself.
Those are all matters for Ministers since they proposed the changes to legislation enacted by Parliament. What depresses me most is that Front-Bench politicians seem reluctant to question the appropriateness of the ECHR.
Turning to another G1 issue, during OPTELIC 1, we deployed 32,000 men and women in the land component alone, to which we should add the maritime and air components. The operation was launched amid some controversy and lack of public support. All of us engaged in that operation did so with the utmost vigour, zeal and energy. Ministers invariably heap praise on our Armed Forces for the effect that we achieve. Of course, we left it to others to worry about the rights and wrongs of the operation, but we all faced the perils of war.
We were also aware of the risk of misconduct on operations—the subject of our debate. I suspect that many of us secretly fear a question about our conduct on operations. Perhaps that fear was greater than that of being wounded or killed on operations. When I meet one of my former colleagues on that operation, we invariably ask each other: "Have you got it?" Two years later we ask the same question. "It", of course, is the campaign medal for that operation. I have resisted raising the issue for a long time for reasons that will be obvious to your Lordships. But I think that more than two years after the end of OPTELIC 1, I am entitled to ask why the vast majority of us engaged in that operation have not already received that campaign medal.
Last week, a one-star officer who served on OPTELIC forcefully impressed on me how unhappy and embarrassed he was about appearing in service dress without his campaign medal—that sandy-coloured medal that everyone recognises. I have been in the same position as a Member of your Lordships' House. I must now sit down.
Lord Garden (Spokesperson in the Lords, Defence; Liberal Democrat)
My Lords, I, too, thank the noble Lord, Lord Campbell of Alloway, for initiating this important debate. It has been valuable to hear from every one of the noble and gallant Lords and those of your Lordships who take a special interest in the Armed Forces. I especially congratulate the noble Lord, Lord Moonie, on an excellent maiden speech; we made several important points that I think that we will take forward when we consider the Armed Forces Bill.
Inevitably, the debate has focused on the particulars of individual cases; Trooper Williams has been central to many speeches. Badly handled individual cases may not be the most appropriate way to generalise major changes in law. There are lessons to be learnt from the specifics of the Trooper Williams case and others mentioned by your Lordships about how they are handled, but there are separate issues about what that means for the legal and disciplinary regime under which our Armed Forces operate.
A debate covering similar issues took place in the other place on
"we owe a special duty of care to those men and women who are required to take daily risks with their lives on our behalf, and to carry duties that no other job requires. The military structure has to provide them with a working environment in which there are clearly understood rules, and with an ethos that enabled men and women who regard themselves as ordinary to deliver quite extraordinary things again and again".—[Hansard, Commons, 14/6/05; col. 227.]
I associate those of us on these Benches with those remarks. We are extraordinarily fortunate because we have a military of which we can be rightly proud. We must also ensure that we do not allow the Government of the day—of whatever colour—to exploit the loyalty and lack of voice of our Armed Forces.
However, we must also consider what makes our military work in that way. Why do they, almost always without exception, operate within the rule of law? Hence, they are the most effective in both war-fighting situations and in the difficult operations in support of civil power. The number of cases in which British forces are alleged to be operating beyond the law are very few, given the range of worldwide operations that we are now undertaking and the provocations under which they find themselves in many of them.
We have been rightly described as having a role in the world of being a force for good. But to operate within the rule of law requires that our forces are subject to the rule of law. We are not excused from our responsibilities because some of our enemies ignore human rights and the Geneva Convention. In Iraq, our aim is to promote democracy and the rule of law. That means that we must operate within those rules. If we try to justify a lower standard, I fear we are on a slippery slope.
We have seen at Abu Ghraib where an ambiguous message from above can lead. Most importantly, such abuses of human rights lead to resentment in the population and feed insurgencies that may mean that ultimately we lose the battle. The noble Lord, Lord Tunnicliffe, made an important contribution on the question of accountability. We cannot ignore it.
Our ratification of the International Criminal Court was a major step forward for this country in progress towards a better world. The Government were right to incorporate the European Convention on Human Rights in our national law. We should not ignore the obligations under which both those measures put us. Those obligations also include rights, which apply to our servicemen as well.
Although some noble Lords have raised the concern that the ICC could come into play in a case against a UK service person, we support the Government view that there would have to be a catastrophic failure of the UK criminal justice system for the ICC to assume jurisdiction. It is not helpful to worry our Armed Forces by suggesting otherwise.
From that, noble Lords will understand that we are not sympathetic to the calls for exemptions for our military when on operations. However, that does not mean that we can be content with the way that our Armed Forces have been supported by the Government in their difficult work. The cases we have heard about demonstrate that there is a real problem that the MoD must address urgently.
Mistakes were made in the handling of the Trooper Williams case, as we have heard. There was a blunder that led to overturning the commanding officer's decision. The second blunder was, with the benefit of hindsight, a misjudgment about going for trial in a case that would not succeed. Those errors were compounded by the unacceptable delay that Trooper Williams suffered. It is the individual who suffers, who is worried. To have to live for two years under the fear of imprisonment for murder is unacceptable. I do not doubt that the Minister will assure us that Trooper Williams received every support from the MoD, but there seems to be a valid argument that more could and should have been done. We have begun to grow too used to the MoD hardening its collective heart to the determent of individuals in the Armed Forces.
The noble Baroness, Lady Park of Monmouth, was right to draw our attention yet again to the duty of care. We have queried whether the MoD is meeting its duty of care in so many areas recently. The duty of care that the Government have to our Armed Forces is greater than to any other sector of their employees. They cannot go on strike; they cannot speak out; they must go where they are sent and, if necessary, be prepared to give their lives.
The lesson from the Trooper Williams case and others in the pipeline is surely that the MoD must investigate all allegations promptly, fully and dispassionately, not assuming guilt. That means providing the necessary resources in military investigators and legal expertise. We cannot have months go past with those accused in a legal limbo.
If we need evidence that that is a problem, we need go no further than a case that has not been mentioned today: that involving the tragic death of a five year-old girl caught up in the ropes of a recreational balloon being operated by a soldier. It was written up in yesterday's Guardian. It has taken two years to come to court martial. Judge Blackett, the judge of the case, is reported as saying:
"The army prosecution service is to be criticised severely for letting the case run for so long. Lack of budget and manpower resources is simply no excuse when dealing with homicide".
He is right; those timescales are fair neither to the accused nor to the victims. I trust that the Minister will assure us that the Ministry of Defence is increasing the number of personnel in both the legal services and the investigation units, so that we can shorten those timescales.
Commanding officers must be able to depend on the legal advice that they receive in reviewing cases. I hope that we shall hear some further explanation of what went wrong in the Williams case, and what is being done to rectify the situation. Further, in the event that a member of the Armed Forces has to face civilian charges and a civilian court, he or she must receive full support on the basis that a person is innocent until proved guilty.
We are all justly proud of our Armed Forces who are now being asked to operate in the most difficult of circumstances under the rule of law. The vast majority manage to do this with outstanding results. But there will inevitably be allegations from time to time that must be investigated swiftly. When there is evidence of wrongdoing those involved must be brought to trial. Our military achieves all that it does by operating under the rule of law without exemption. The thoughts that we might look towards new applications of manslaughter instead of murder are important issues raised in today's debate, which I hope we will take forward when we consider the Armed Forces Bill.
The current set of rules do not compromise the chain of command provided that everyone does his job properly. That must include proper support from the Ministry of Defence.
Lord Astor of Hever (Spokespersons In the Lords, Foreign Affairs; Conservative)
My Lords, I, too, congratulate my noble friend Lord Campbell of Alloway on securing this important debate. I hope that Her Majesty's Government will not ignore the message that has been sent out today in some very powerful speeches. I also congratulate the noble Lord, Lord Moonie, on an excellent maiden speech.
Our Armed Forces today are very different, even from their recent predecessors, and they face a very different set of challenges. Since the end of the Cold War their role has been transformed from providing a buttress against the Soviet bloc in Europe to enabling the execution of numerous, concurrent operations of variable duration worldwide.
Once they are in theatre we require our soldiers to switch seamlessly from war fighting to peacekeeping, sometimes almost overnight, with little thought to what that actually represents. Success of operations depends on many factors, prominent among which is the ability and will of soldiers at all levels to take instant, difficult decisions in the most dangerous and confused situations.
Such decisions frequently involve risk—often high risk. Invariably they are made under conditions that are far from ideal, such as fear, fatigue, confusion and concern for each other's safety, and generally without the full range of information. In Iraq, our troops sometimes have only about four hours of sleep a day—probably in two-hour bursts. On top of that, they operate in sweltering temperatures of between 40 and 50 degrees.
To execute those tasks successfully requires a flexibility of mind and purpose. That makes it all the more important that every soldier is confident of the effectiveness of the chain of command, and that he trusts it implicitly. Soldiers must be confident that they will be supported by the judicial system, with full account being taken of the operational circumstances in which decisions were taken, and provided that they acted lawfully and according to their rules of engagement.
If the chain of command, which is actually a two-way chain of trust, is undermined by external pressures and an overly legalistic approach, the subtle relationship on which military success depends will be put at very grave risk. Several noble Lords, including my noble and learned friend Lord Mayhew and my noble friend Lord Marlesford mentioned Trooper Williams. His treatment should be taken as a stark warning of the dangers that lie ahead for the Armed Forces if that trend continues unchecked.
What signal does that case send to our people serving around the world? Can they trust the word of their superiors? Can they trust the Government who send them into combat so frequently to stand behind them when they need support? The noble and gallant Lord, Lord Guthrie, pointed out that no one trusts the system. The noble Lord, Lord Hoyle, drew our attention, in an excellent speech, to the case of Colonel Mendonca, and my noble friend Lord De Mauley referred to Colonel Tim Collins. Those two cases sent further worrying and conflicting signals to fellow soldiers.
Those concerns do not simply evaporate on learning that Trooper Williams has been finally, and rightfully, cleared of all charges after nearly two years on the rack. I also pay tribute to General Sir Anthony Walker.
My noble friend Lady Park mentioned the duty of care. But Trooper Williams's acquittal was greeted with silence from the MoD. What a difference a few words of pleasure at the outcome would have made—not just to Williams but to the 65,000 members of our Armed Forces who have served their term in the Gulf in the past two years. There are 9,200 still there as we speak, and the issue is an ever-present, real and quite inexcusable addition to their already considerable burden.
The sense that prosecutions resolved in accordance with the prompt application of military law may be reopened at the whim of some lawyer sitting in the comfort and safety of his office is exacerbating the atmosphere of uncertainty and vulnerability. We look to the Minister to assure the House that the decisions that have been taken in that sense are entirely exceptional and are not envisaged to become standard practice.
There is a real danger of a fundamental loss of confidence in the Armed Forces that will lead to the sort of operational paralysis evident in the armies of some other NATO countries. I understand that the Tri-Service Discipline Bill will be introduced in mid-November. We on these Benches have consistently set out our concerns about the Government's intentions. We shall consider carefully all the Bill's implications before we finalise our attitude to it, but our current view is that it must meet the following tests.
First, the essential authority of the commanding officer must not be undermined by the shadow of civil criminal proceedings or the ICC. Secondly, the chain of command must not be compromised by unwarranted changes in the process of enforcing military law. Thirdly, there must be an understanding that military law and how it is applied must continue to reflect the circumstances under which the Armed Forces operate. Fourthly, the Bill must not compromise the ability or willingness of our Armed Forces to take necessary action in theatres of war.
Our soldiers are already subjected to external pressures that were unknown in Cold War scenarios—for example, ever-intensifying media scrutiny and the involvement of supra-national bodies such as the International Criminal Court. I remind the Minister that when debating the jurisdiction of the ICC, my honourable friend Francis Maude, the then shadow Foreign Secretary, called for the seven-year opt-out, which is already exercised by the French Government, and for a watertight opt-out, which enables Ministers who are confident that a case is completely vexatious to ensure that a warrant is not executed against a member of the British Armed Forces. Neither of those two provisions is in the Act.
We are witnessing a growing fear of legal vulnerability that will inevitably jeopardise the risk-taking culture that is so essential to the fighting spirit and operational success of the Armed Forces. In this climate of uncertainty troops may hesitate to use lethal force for fear of prosecution. Their lives may be lost as a result. In addressing these issues, we must start with a recognition that the military is different from the society at large. The Government failed to do that during the passage of the Armed Forces (Pensions and Compensation) Bill.
The earlier intervention of the noble and learned Lord the Attorney-General reflects the Government's priorities in that he had to attend a hearing to defend the abolition of hunting rather than this very important debate today.
I want to make it clear that we on these Benches do not for one second seek to defend any solider of any nation who abuses his or her uniform and commits atrocities against civilians or helpless prisoners. Servicemen and women are not above the law. But we cannot allow the trend of political correctness to infuse the Armed Forces undermining trust, discipline and command relationships. Above all, we cannot afford to see the mechanisms by which military discipline is maintained—the authority of the service boards, the court martial system and summary jurisdiction by commanding officers—undermined any further. They are already on the verge of having been irreparably damaged.
The civil courtroom can neither recreate nor fully comprehend the unique conditions of the battlefield; nor must we recreate a climate in which a soldier, faced with a speeding truck bearing down on him, is forced to think, "I believe I ought to shoot that driver, but perhaps I better telephone my lawyer and check that it is okay". We ask much of our young servicemen and women. They deserve our support.
Lord Drayson (Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence; Labour)
My Lords, I congratulate the noble Lord, Lord Campbell of Alloway, on the subject of this debate. The integrity and legal authority of the chain of command is central to the effectiveness of our Armed Forces and to the fair treatment of all our people who serve so bravely in it. Nothing is more important that that. I am grateful to the noble Lord for providing the opportunity for the House to focus on this vital subject.
The debate is timely. Many noble Lords have mentioned the concerns that currently exist in our forces, and we recognise that that is the case. The noble and gallant Lords, Lord Bramall and Lord Boyce, stated their deep disquiet. The noble and gallant Lord, Lord Inge, stated his concern that the chain of command is being eroded. The noble Viscount, Lord Slim, and others, have stated their real concerns over political correctness. I am glad today to have the opportunity to address those concerns directly, to show that they are unfounded and to underline the Government's commitments to maintaining a clear and unambiguous chain of command in Her Majesty's Armed Forces.
This has been an excellent debate, which has yet again shown the deep experience and knowledge of defence matters that so distinguishes this House. I am grateful to all noble Lords who have spoken, especially those noble and gallant Lords on the Cross Benches who have drawn on their distinguished service in the Armed Forces. I am also grateful for their contributions made to me directly since I recently took up my post in the Ministry of Defence. I congratulate, too, my noble friend Lord Moonie, who made an excellent maiden speech.
The noble Lord, Lord Marlesford, and the noble Baroness, Lady Park, mentioned overstretch in the military. Our Armed Forces have a hard-earned and thoroughly deserved international reputation for effectiveness in the full range of modern military tasks from war fighting to peace support. Our forces are the best in the world—nowhere has that been more clearly demonstrated than in Iraq. They continue to make a substantial contribution towards the creation of a free, democratic and stable Iraq as well as to the many other operational theatres in which they are engaged.
I was pleased to be able to see that for myself on a visit to troops in Basra between 6 and
Of course, I understand that there is still huge trauma in Iraq. There are wide variations in the picture across the country. One only had to see the news last night of the horrific suicide bombing of 12 children in Baghdad to see that. The greatest tragedy is the continued murder by terrorists in Iraq of Iraqi people who are trying to secure the freedoms and the liberties that we enjoy. Seeing our brave young men and women working to help those people achieve that was an inspiration to me. It proved to me that what we are doing in Iraq is a right and noble cause, and that what we state as our core values of the British Armed Forces being a force for good in the world is true, is real, and is happening today in Iraq to make it and the world a better place.
However, we recognise that what we ask of our people in places such as Basra puts great strain on them, as the noble Baroness highlighted. Nation-building in a country so ravaged by years of poverty, oppression and conflict as Iraq is difficult. On top of that, as the noble Lord, Lord Astor, highlighted, our forces are under scrutiny every day in the 21st century world of 24-hour news, embedded journalists and highly active and vocal NGOs. The vital importance of our system of discipline and chain of command cannot be overemphasised. It must deliver both the military effectiveness and the high ethical standards that we demand of our Armed Forces.
The overwhelming majority of our personnel have served in Iraq with honour and distinction. I am very proud of what they have achieved and continue to achieve, and I know that my ministerial colleagues feel the same. Only a very small number have been involved in incidents that have resulted in criminal prosecutions—we should not overstate the issue. As several noble and gallant Lords will know much better than I do, such incidents have had to be dealt with in the past—in Northern Ireland, for example. That said, I recognise that the focus in the media and other places on the handling of those incidents has led to concerns in some quarters, and in particular in our Armed Forces, over the process of legal oversight. I stress that we recognise that those concerns exist, and we are addressing them. I welcome the opportunity today to correct some misapprehensions and set out why these concerns are unfounded.
All that reflects what has long been the case: that the Armed Forces operate within the law and the country has confidence that this is the case. Surely no noble Lord would argue that this is not so? They must encompass respect for the law. As the noble and gallant Lord, Lord Bramall, said, everyone in this House accepts that. If allegations are made of serious offences, it is right and proper that the service police investigate them. It has been suggested that they are overzealous in conducting those investigations, but I assure noble Lords that they operate to appropriate professional standards and are not subject to any political direction, or direction from higher authority, to do more than that. I am sure that noble Lords have not forgotten those members of the Royal Military Police murdered by a mob in Basra.
I also stress that the 176 cases that have been referred to today are the number of investigations carried out by the service police into allegations of wrongdoing against Iraqis since the start of operations in Iraq. Some 100 of those 176 cases related to incidents where British forces were fired upon. There are not 176 prosecutions—151 investigations have been closed with no further action. That needs to be seen in the context of some 70,000 personnel who have served in Iraq.
There is nothing new in service personnel being investigated for alleged crimes, as the noble and learned Lord, Lord Lloyd, highlighted. It happened, for example, as a result of the Falklands and Bosnia campaigns. Investigations did not start with the establishment of the International Criminal Court. My noble friend Lord Hoyle mentioned the Baha Musa case. He will understand that I cannot discuss that case, which is currently being considered by the Army prosecuting authority. A decision is expected shortly.
The noble and learned Lord, Lord Mayhew, the noble Lord, Lord Garden, and others raised the propriety of referring the Trooper Williams case to the Attorney-General. I shall make some points about that case. Once concerns had been raised in Army Legal Services about the legal advice given to the commanding officer, it was necessary and proper for the Army to bring the matter to the Attorney-General's attention, because the military justice system was no longer able to deal with the case. The final judge made no criticism of any of those involved.
Throughout all investigations, those accused are entitled to and will receive support and guidance from their chain of command before, during and after any investigation. That includes access to independent legal assistance.
The noble and gallant Lord, Lord Bramall, my noble friend Lady Dean and the noble Lord, Lord Campbell, highlighted the case of Trooper Williams, who behaved with great dignity throughout. He was supported by the Army, who appointed a full-time assisting officer to ensure that he had all the information and help that he needed and to provide a liaison point for the Army and his defence team. The cost of his defence was met in full by the Ministry of Defence. During his time on bail, the Army ensured that he remained gainfully employed. As for all soldiers, his welfare was the Army's primary concern. My noble friend Lord Tunnicliffe mentioned the great burden of uncertainty that Trooper Williams had to bear. Timeliness is key. I assure the House that lessons have been learnt from his case.
The military justice system is the bedrock of the chain of command. It applies to wrongs done by one member of the Armed Forces to another and to wrongs done by a member of the Armed Forces to a civilian. We see the commanding officer as central to the authority of the chain of command. He is the primary authority responsible not only for his unit's discipline but for the command, training, safety, security, education, health, welfare, morale and general efficiency of his troops. That wide span of responsibility illustrates why it is so important that the commanding officer is able to exercise disciplinary powers. He is uniquely placed to understand the circumstances of service life and of his particular unit and, hence, the causes and significance of misconduct.
Many of the issues raised during our debate have been prompted by concerns over the International Criminal Court and the European Convention on Human Rights. The noble and gallant Lord, Lord Guthrie, asked for answers. I am happy to give them, but first I shall deal briefly with a number of misunderstandings about the ICC.
It has been suggested there is a real possibility that our forces will find themselves standing in the dock on trial in The Hague, whether the UK likes it or not. That is wrong, and I shall explain why. The court's jurisdiction is carefully set out in the ICC statute. The entire premise of the court is based on the principle that it can only—I repeat, only—exercise its jurisdiction when a state is unable or unwilling genuinely to investigate or prosecute itself. Surely we do not envisage that the United Kingdom will ever be in that position.
I am happy to reassure noble Lords, in particular the noble and gallant Lords, Lord Inge, Lord Guthrie and Lord Boyce, that it is unthinkable for British forces personnel to be sent to the ICC. At Second Reading of the International Criminal Court Bill in the other place in 2001, the Foreign Secretary told the House that,
"British service personnel will never be prosecuted by the International Criminal Court because any bona fide allegation will be pursued by the British authorities".—[Hansard, Commons, 3/4/2001; col. 222.]
We remain confident that UK authorities will always act properly. As long as they do, there will never be any basis for the ICC to exercise jurisdiction.
Some have also suggested that the ICC will be politically driven and cannot be trusted to act properly. The Government have complete confidence in the independence and integrity of the court and the prosecutor. We are in good company in that judgment; 99 countries have so far ratified the statute, including 22 of our 25 NATO partners and 22 Commonwealth countries. We have nothing to fear from the ICC.
Another myth is that, by ratifying the statute and enacting the International Criminal Court Act 2001, the Government have exposed our forces to a risk of prosecution that they did not previously face. That is not the case. Those who oppose the ICC often overlook the fact that, before we ratified the ICC statute, the UK had already fought one conflict while subject to the jurisdiction of an international criminal tribunal.
I now turn to the European Convention on Human Rights. It seems ironic that those who are concerned about the possibility of our soldiers being subject to unfair prosecution also express concern about the convention. That perhaps relates to a misunderstanding of the convention's role. The primary purpose of Article 6 is to ensure a fair trial for the individual. However, although the convention has resulted in developments in the service system and means that its fairness is under scrutiny, it should not be thought that the effect of the convention is to endanger our military system of justice.
We should note the Baines case, in which the High Court, in its judgment on the case, upheld our system of commanding officers' summary jurisdiction as fully compliant with human rights law. We were pleased but not surprised at that decision. The noble Lord, Lord Astor, expressed his wish that the Ministry of Defence had expressed pleasure at the outcome of the Trooper Williams case. I am pleased to have the opportunity to express our pleasure, but not our surprise, at the outcome of the Baines case.
I must make it clear that we see no merit in attempting to put our Armed Forces outside the convention, as has been raised. The United Kingdom ratified the convention without reservation in 1951, and successive governments have adhered to its principles and abided by the rulings of the European court. No one would argue that our forces have become less effective as a consequence of that.
The Government do not believe that the military justice system is in any way undermined by the convention. Indeed, for over 50 years the formulation of policy and regulations for the Armed Forces has taken account of compliance with the convention. Various aspects of military life and operations have been affected by it, although some of those changes may have happened anyway. I am thinking particularly of the changes to procedures for summary trials and courts martial to ensure compliance with the right to a fair trial.
As noble Lords will be aware, we propose to introduce an Armed Forces Bill later this year. With my honourable friend the Under-Secretary of State, I had the opportunity yesterday to speak to a number of your Lordships about some of the thinking about a number of areas in the Bill. I hope that those who were able to attend found the occasion useful. We are fully committed to maintaining a separate system of service law, able to deal with a wide range of disciplinary and criminal matters. I am happy to give the noble and gallant Lord, Lord Boyce, a clear statement of our commitment to that.
We are clear about the essential nature of the ability of the commanding officer to exercise discipline in respect of those under his command, but the system must be fair, efficient and compliant with the European convention. We ask an enormous amount from members of the Armed Forces, and we owe them nothing less.
The Bill will be a tangible demonstration of our commitment to a system of service law and will underline our determination to uphold the integrity and legal authority of the chain of command. I appreciate that there is a degree of frustration that we have not been able to publish the Bill in draft as yet. That may have contributed to some of the concerns that noble Lords have mentioned. It will be complex legislation. I look forward to further meetings with noble Lords through this year, as we move towards the Bill. We are making a strong effort to share our thinking to make sure that those with an interest have confidence in the approach that we are taking.
Noble Lords will hear me state time and again in the area of my responsibilities for defence procurement and equipment the need for our Armed Forces to adapt and modernise to face new threats. The legal framework also has to be reformed, and we are working on that today. Your Lordships will of course have the full opportunity to scrutinise the detailed proposals when the Bill is published later this year, and I look forward to our discussions.
In the time available, I have not been able to answer every question raised today. Where that is the case, I will write to noble Lords. However, I hope that I have been able to address the key points of concern and to state clearly the Government's position; to underline that the Government are listening and, as important, are acting; and to restate that they are firmly in support of our Armed Forces and that the Army Bill, on which we are working, is a central part of that action.
The Secretary of State and the Chief of the Defence Staff stand ready to meet noble and gallant Lords and other Peers who have raised concerns today about the military justice system and the International Criminal Court. They would welcome the opportunity to listen at first hand to the concerns and to explain further the Government's position.
Lord Campbell of Alloway (Conservative)
My Lords, I thank all noble Lords who have spoken, in particular the noble and gallant Lords, without whose contribution the perspective could not have been put.
The noble Lord, Lord Drayson, gave an inkling of an understanding, when he said that the Government had learnt a lesson. Fair enough, but we heard nothing about what they will do about it. The House unanimously, with perhaps the exception of the noble Lord, came to the conclusion that here was a real problem that required urgent attention. It affected morale and other things too.
The noble Lord's speech was disappointing in that regard. I hope that, on some future occasion, at the meetings that he suggested with the noble and gallant Lords, which of course I shall not be able to attend, they will make some progress. I beg leave to withdraw the Motion for Papers.