Armed Forces Discipline Bill [H.L.]

– in the House of Lords at 3:14 pm on 29th November 1999.

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Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence 3:14 pm, 29th November 1999

My Lords, I beg to move that this Bill be now read a second time.

The gracious Speech has as the governing principles of our legislative programme the themes of enterprise and fairness and the creation of a modern Britain. Most of the legislative proposals that we are bringing forward fit into that framework, and I believe that the Bill we are considering today does so too.

Our Armed Forces certainly need to be enterprising and innovative in the face of a fast-changing world. We need to be fair in the way that we deal with our Armed Forces and in the way that they deal with themselves. We need to ensure that our Armed Forces operate in the most modern way possible to meet the challenge of change that is in front of them. I believe that this Bill will help them to achieve those objectives.

As many of your Lordships remarked in our debate on the gracious Speech, Britain is rightly proud of its Armed Forces. We have every reason to be so. We like to see our Armed Forces among the best in the world, if not the best in the world. But I believe that that is not just a view of our forces from a UK perspective, but that the standard, quality and effectiveness of Britain's Armed Forces are seen around the world as among the best in the world, and we can take pride in that judgment.

I also believe that we can take particular pride in our Armed Forces because of the way that they have been tested recently and have not been found wanting. They have come through successfully and have proved that the pride, respect and the faith that we have in them are not misplaced. In Iraq, Bosnia, Kosovo, East Timor and over many years in Northern Ireland, our Armed Forces have been beacons for fairness and decency, liberty and democracy. They have not shirked from what we have asked of them in the name of those values. They have delivered in difficulty and in tension, in war zones and in peace-keeping. We have not sought the conflicts in which they have been engaged but we have been determined to obtain the best possible outcome from those conflicts. Our Armed Forces have been the means by which we have done so.

That performance--that status as being among the best in the world--depends on a range of different factors, but certainly among them is the way in which our Armed Forces are organised and operate. Central to that is their command structure and discipline. Discipline is not the populist image of a barked order on a parade ground; discipline goes far deeper than that. It is about co-operation and command. Co-operation--working together--is the key to how our Armed Forces do what they do. They must have trust in one another and a belief in mutual support. They have to trust that everyone around them will do what they are there to do to secure the objective that has been set, and in turn they must meet the trust that everyone else around them places in them. To tackle successfully the difficult situations that they face, every member of our Armed Forces must trust implicitly and without limit every other member. They must know that they can depend on them.

That trust, dependence and faith are the basis of discipline in the Armed Forces. That is what discipline is for, and indeed that is what it is. It is a codification of that trust and dependence. Therefore, discipline provides the vital operational structure that our Armed Forces need; it also provides the legal structure.

But discipline in the Armed Forces is not static; it is not a rigid framework fixed for ever and set in a particular way. The Ministry of Defence keeps Armed Forces discipline under constant review. As society changes, so must discipline. It is not altered or modified to make it fit fashionable notions of laxity on the one hand or toughness on the other, but to make sure that it fits with the changing framework from which and in which we recruit people to the Armed Forces, and to make sure that it fits the legal framework--the system of aggregated assent which at heart gives our Armed Forces the legitimacy they must have if they are to act properly as Britain's first-line national security.

The balance to be struck, as ever, is between keeping in step with wider society, of which the Armed Forces are of course a part, and preserving those distinctive features of service life that are key to their operational effectiveness.

The process of reviewing the discipline system normally engages the interest of Parliament most actively when we come to consider each five-yearly Armed Forces Bill. As your Lordships know, we require a Bill on this regular basis in order to continue the existence of the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. This procedure is in turn subject to the annual continuation orders.

These Acts, known collectively as the service discipline Acts, provide the statutory framework for discipline in the Armed Forces. I am happy to note that there has traditionally been a consensual recognition in Parliament of the importance of this legislation and its purpose. The five-yearly Armed Forces Bills also provide the main opportunity to update the service discipline Acts.

The last Armed Forces Act, in 1996, contained major reforms that we in Opposition were pleased to support. A theme of these changes was the transfer from the service chain of command of authority to take certain decisions concerning the trial of offences under the service discipline Acts. This was in recognition of the need to remove the impression, however mistaken, that the chain of command could have an undue influence over court martial proceedings.

Because Armed Forces Bills come along with a certain regularity, it is no secret that your Lordships are likely to be invited to consider another such Bill in the next Session; otherwise the service discipline Acts would expire at the end of 2001 along with the legislative authority for maintaining discipline in our Armed Forces. However, the need to modernise service legislation cannot always be conveniently ordered into neat five-yearly intervals. The present Bill is about making some important changes that we do not believe should wait until the next Session.

The Human Rights Act 1998 provides the framework within which we now intend to build on the reforms contained in the 1996 Armed Forces Act. The main provisions of the Human Rights Act will come into force in October 2000. The proposals in this Bill are intended to address concerns about compliance with the European Convention on Human Rights before that date.

The Government consider that the proposals now before your Lordships are intrinsically beneficial. They reinforce the fairness that the services believe is at the heart of their discipline system. As with the 1996 changes, the reforms proposed now are concerned with establishing checks and balances on the chain of command--this time in two areas not fully addressed in 1996. The first of these relates to the arrangements for the pre-trial custody of those being investigated or awaiting trial for alleged offences under the service discipline Acts. The second concerns summary disciplinary proceedings; that is to say, cases that are heard by the accused's commanding officer.

The substance of the Bill is in four parts, the first of which deals with pre-trial custody and the other three with summary proceedings.

Clauses 1 to 10 contain our proposals relating to pre-trial custody. At present, the commanding officer has the main responsibility for deciding whether a suspect or an accused should be held in custody pending charge or trial. There are safeguards to ensure that this responsibility is exercised appropriately and that no one is held in custody unnecessarily. However, these safeguards are all internal, involving the chain of command within the services.

In the Bill, we are proposing to strengthen these internal checks and to formalise them in primary legislation. The legislation will require the commanding officer to review the need for continuing custody no later than 12 and 36 hours after the time of arrest. The commanding officer will apply Police and Criminal Evidence Act criteria. I shall describe those in a moment.

We believe it right that there should also be external and independent checks on decisions that affect an individual's liberty. We therefore intend to introduce a requirement for a judicial officer to approve continuing custody in excess of 48 hours.

The judicial officer will decide whether continued custody is justified while investigations continue, applying criteria similar to those used by magistrates in the civil courts. These Police and Criminal Evidence Act criteria relate to the need to demonstrate both that inquiries are being conducted diligently and expeditiously and that more time is required to obtain and preserve evidence. If the judicial officer is not satisfied that those conditions are fulfilled, the individual must be released. In any event, the judicial officer may not approve custody beyond 96 hours. If by that point the individual has not been charged, he or she must be released. I can assure the House that neither the 48 nor 96-hour periods will be regarded as norms. The aim will remain either to charge or to release the individual as soon as possible.

If an individual is charged, the question of the need for continued custody pending trial must be assessed anew. Again the commanding officer will take the initial view on this, this time applying similar criteria to those laid down in the Bail Act 1976. These include issues such as an assessment of the likelihood of an offence being committed or of witnesses being interfered with if the individual is not held in custody.

If the commanding officer considers that there is a case for continued custody, the issue must be referred promptly to the judicial officer who will also apply criteria laid down in the Bail Act 1976. If the judicial officer decides that the accused should be held in custody, he may only order custody for a maximum of eight days or for 28 days if the accused has consented to this longer period. The question must thereafter be readdressed by a judicial officer at intervals of no more than eight or 28 days as appropriate.

Clearly, the judicial officer is a key player in all the procedures I have just described. Clause 7 describes who may be appointed as a judicial officer for this purpose; normally, it will be a judge advocate or a naval judge advocate--in other words, one of the figures who exercise independent judicial functions at courts martial. Judge advocates also have a role in other aspects of the proposals in the Bill.

The rest of the Bill concerns the changes we wish to make to the procedures for summary discipline. For most purposes, as I have said, this is where an individual's commanding officer deals with the alleged offence. There are certain procedural differences between the Army and the Royal Air Force on the one hand and the Royal Navy on the other. I think that it will simplify our debate today if I refer mainly to the Army's procedures. I shall mention the slightly different position in the Royal Navy where that is relevant.

Summary discipline is an effective means of dealing with minor problems quickly and the vast majority of cases are heard in this way. The Government fully endorse the assessment of the three services: that they need to continue to be able to deal summarily with day-to-day disciplinary issues.

At present, those facing summary proceedings in the Army and Royal Air Force have the invariable right to elect to be tried instead by court martial. This right is slightly qualified in the Royal Navy because of the need to be able to deal with minor disciplinary problems at sea and the problem of quickly convening a court martial on board ship. The increased right to choose to be tried by court martial was introduced in the Armed Forces Act 1996 because of concerns that summary proceedings on their own may not be compatible with the European Convention on Human Rights. In the Army and Royal Air Force, the right of an accused to choose to be tried by a court that complies with the convention can be exercised only after the commanding officer has found the charge proved.

If the case is heard summarily, the accused today has no right of appeal to a higher court; instead he may ask for the matter to be reviewed by a higher service authority than his commanding officer. But I believe that it is fair to say that this is not a fully judicial process.

We believe that these procedures should now be changed in two main ways. In the Government's view, it is important that there should be a right of appeal from summary hearings. This seems to us to be intrinsically fairer. Furthermore, we are looking to provide an assured right of access to a court that complies with the convention.

The Bill therefore proposes the establishment of a new summary appeal court for this purpose. This is covered in Clauses 14 to 25. This new court will consist of a judge advocate and two independent officers, generally from the appellant's service, but from outside his or her chain of command. There will, of course, be safeguards to ensure that no one hearing the appeal will have been involved in the case previously.

The procedure at appeal hearings in the summary appeal court will, as far as possible, mirror that of the Crown Court hearing an appeal from a magistrates' court. The hearings will be open to the public. The summary appeal court will not be able to award a sentence more severe than that imposed by the commanding officer.

We wish to avoid any confusion that may arise from the introduction of this right of appeal. As I explained earlier, at present an accused in the Army, being dealt with summarily, is given the option of trial by court martial after his commanding officer has determined that the charge has been proved, but before sentence is passed.

This procedure has certain of the characteristics of an appeal, in that the accused has some idea of what his fate may be when he decides whether or not to involve a higher court. We consider it more sensible to alter the arrangements so that an accused will make the choice between being dealt with summarily or by court martial before the summary hearing. Indeed, this is already the position in the Royal Navy.

This change is covered in Clauses 11 and 12. I hope that your Lordships will forgive me for having departed from the sequence of the Bill, but these particular proposals are more readily understood in the context of the introduction of a right of appeal.

Should the accused decide to be tried by court martial, the sentencing powers of the court will be limited to the maximum that the commanding officer could have awarded had he dealt with the case. This is to ensure that there is no disadvantage, real or perceived, for the accused in choosing to be tried by a court that is independent of the commanding officer and the chain of command.

I want to emphasise that this safeguard does not mean that the accused will be getting off with an inappropriately light sentence. If the commanding officer is of the view that the offence is a serious one, he would still be able to recommend court martial trial in the first place.

However, the decision on whether a case should be tried by court martial rests not with the commanding officer, but with each service's prosecuting authority, which broadly fulfils functions akin to those of the Crown Prosecution Service.

Clause 13 and Schedule 2 make the necessary procedural adjustments to cover the powers of the prosecuting authority under the new arrangements for electing trial by court martial. Typical of these is where a case has been referred to the prosecuting authority as the result of a defendant choosing to be tried by court martial, and the authority then takes the view that the original charge is inappropriate. We are proposing that the prosecuting authority may not in normal circumstances alter the charge without the defendant's consent.

This Bill delivers significant improvements to the arrangements for administering discipline in the Armed Forces. It strikes the right balance between preserving the foundations of the system and increasing its fairness. I commend it to the House.

Moved, That the Bill be now read a second time.--(Baroness Symons of Vernham Dean.)

Photo of Lord Burnham Lord Burnham Conservative 3:33 pm, 29th November 1999

My Lords, I do not know whether the Minister is as concerned as I am that she should have to introduce and I should have to respond to the Bill in the face of such a galaxy of five-stars. One of the noble and gallant Lords who is to speak told me today, "We know what we are talking about". I do not know what he and other noble and gallant Lords intend to say, but I hope that the Government listen.

Discussions with regard to the Bill have been directed, irrespective of the desirability of the contents, towards the question of whether it is necessary at all. Might not the contents be enacted by means of a statutory instrument? The Bill, or something like it, has been maturing in a departmental pigeon-hole for a considerable time, long before the Human Rights Act, and it would seem hardly worthy of the pre-eminence it has been given as the first Bill to be debated in your Lordships' House this Session.

I shall not waste your Lordships' time by arguing that primary legislation is not required, but the position is at least arguable. I draw the Minister's attention to the Motion of the noble and learned Lord, Lord Simon of Glaisdale, under No Day Named, stating that the prolixity of the statute book ought to be diminished. Presumably, the Government's argument is that primary legislation is necessary because the Bill demands changes to the Army Act. I should be grateful for the Minister's opinion on that.

During the long series of debates on what is now the Human Rights Act, my noble friend Lord Campbell of Alloway moved an amendment which suggested that the Armed Forces ought to be deleted from the classes of person covered by the Bill. His proposals were not carried through into the Bill, but the suggestion has been made that this Bill is necessary to comply with the terms of that Act.

When the ECHR was originally signed in 1951-- I am not sure whether that was under the Conservative government or that of my noble friend's grandfather--France signed only under reserve, excluding the Armed Forces from its application. We recognise that previous events might have forced the Government to legislate somewhat along these lines, but how much better it would have been to enter a caveat 48 years ago.

Our problem is that the Armed Forces, which will be affected by the Bill if enacted, work over a wide and differing field. What may be acceptable in the garrison towns of Colchester and Aldershot may not be practicable or in the least possible at the sharp end in East Timor or Kosovo. Under the terms of the Bill, detention must be authorised by a judicial officer. It is a nice thought to imagine a civilian judicial officer wading through the jungles of East Timor to authorise the commanding officer to put into close arrest a Gurkha who has run amok.

In the debates on what became the Human Rights Act, the noble and learned Lord the Lord Chancellor recognised the problems facing the Armed Forces. He said that the Government would consider designating military courts as the proper venue for the consideration of complaints on ECHR grounds by Armed Forces personnel against the command of the Armed Forces. He said:

"Special considerations will certainly have to apply".

Article 15 of the convention states that in time of war or other public emergency a state may take measures derogating from its obligation. The problem is what constitutes "other public emergency". If we can agree on that, will the same apply to this Bill?

The Bill would seem to have two main objects. One is to dot the "i"s and cross the "t"s of complying with the European Convention on Human Rights, to which we are bound by previous legislation. In preparing the Bill, the Government have no doubt asked themselves whether court martial procedure under the Army Act is in breach of Article 6 of the ECHR.

This is a tiresome Bill and we shall have strong things to say about it in Committee. But I hope that it will wipe the slate clean and that there will be no further changes necessary under the ECHR or the Human Rights Act. Do the Government believe that they are now doing enough and that this is the minimum they can get away with?

The judicial officer, who plays such a large part in the Bill, will take away much of the control and authority that a commanding officer has over his unit. The amended Section 75C of the Army Act proposed by the Bill would state:

"If, on an application by the commanding officer of a person arrested . . . a judicial officer is satisfied that there are reasonable grounds for believing that the continued keeping of that person in military custody is justified", he may authorise it. I presume the commanding officer has no say in the matter at all and the periods for which custody may be used are very short. Again, that may be all right in Catterick or Colchester but not in the front line or in a submarine under the polar ice cap.

Sadly, the Bill is an invitation to the barrack-room lawyer. It must be contrary to good order and military discipline to allow such a person an increased forum in our courts. Whatever is agreed, the Bill must not bypass military discipline. The convolutions of the Bill as they stand must encourage the suspect to frustrate the summary disciplinary procedure when he can elect trial by court martial on the most frivolous grounds. The current disciplinary procedure has been shown on countless occasions to demonstrate that only by exercising quick and firm justice can the morale of a unit be maintained. Not only does the procedure laid down in the Bill remove part of the control of a commanding officer but the timing must lead to delay in getting a problem dealt with and finished. It is suggested that real-time video links can be used. That will be a big help in the wilds of East Timor. Furthermore, it must be dangerous to create a process which allows soldiers to complain about their commanding officers and to reduce their authority.

The other main purpose of the Bill would seem to be to consolidate the service discipline Acts. It undoubtedly goes some way towards that, but the Government appear to have shied at the thought of taking it to its logical conclusion. They have not even been able to resolve the dilemma that the Navy's judge advocates are serving officers in uniform while in the Army and RAF they are civilians. One of the reasons given for the introduction of the Bill arises from the decision--which I consider insulting--in the case before the ECHR of Hood v the United Kingdom where it was decided that a commanding officer could not be considered impartial in authorising pre-trial detention. I presume that a naval judge advocate, sitting in uniform and looking like any other officer, is impartial.

Will those "impartial" judicial officers protect or interfere with the commanding officer who has little or no judicial experience? No doubt it will depend largely on the individual but interference with the military ethos is inevitable. Under the terms of the Bill there will be substantial costs and increases in manpower. The Government's own estimates are for 95 additional military personnel, including 53 non-commissioned officers in the Military Police and 37 additional civilians employed by the Ministry of Defence.

The Government seem to have a blind faith that they can conjure men out of thin air. Although recruitment is going comparatively well at present, the chances of achieving a net increase to the projected numbers throughout the services of trained men is negligible. The Government talk of 850 to 900 appeals to the summary appeal court in a year. The mind boggles at the thought. In the classic words of the regimental quartermaster sergeant, "Who's tae pay?" Implementation of the Bill is likely to cost £9 million a year from a budget which is already stretched beyond comprehension. The Lord Chancellor's Department and the Home Office, the guardians of the Human Rights Act, will not pay. Yet again the defence budget will have to carry the cost.

Above all, my noble friends and, I am sure, the noble and gallant Lords will require assurances about the maintenance of service discipline as we know it and must have. This is not merely a technical Bill to conform with the requirements of European and other legislation. It is part of the ongoing steady process of wearing away discipline in services where discipline is essential. The noble Baroness has laid down what discipline is, for which I am grateful. I am not sure, however, that she has the implementation of it correct. I shall advise my noble friends to give the Bill a Second Reading, but I do so with some reluctance and with the assurance that we shall have much to say in Committee and on Report.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat 3:44 pm, 29th November 1999

My Lords, we all agree on the importance of discipline and order to the effectiveness of the Armed Forces in peacetime, and, above all, in conflict. We all recognise the quality of the British Armed Forces, their professionalism and their cohesion. We all understand also that command and discipline are matters both of the negative dimension of punishment for those who do not accept orders, and of the positive dimension of the leadership qualities and the morale of those who find themselves part of any unit.

The discipline system of the British armed services has changed considerably over time. The harsh regime thought necessary 200 years ago to maintain order among troops who were largely illiterate and uneducated was of course different from that considered appropriate for a highly skilled, well trained professional force today. Having read a little of the history of the subject, I must say that a certain conservatism within the Armed Forces has resisted changes in the discipline system at each stage that reform has been introduced. That is characteristic of almost any professional service.

The proposals before us represent a further change. The question which we, as a legislative Chamber, must consider is whether they strike an appropriate balance under new circumstances or whether they tip the balance too far against the necessary elements of punitive discipline in favour of the democratic principles of representation and respect.

I thank the noble Lord, Lord Chalfont, for giving me in advance an indication, in an informal conversation last week, of the tenor of what he was going to say today. I therefore spoke over the weekend to a number of contacts who had held senior positions of command in Her Majesty's armed services. I was relieved and pleased by their response, which I shall do my best to summarise.

The first point of which I was reminded was that the role of the Armed Forces in a post-Cold War world is, of course, evolving. We do not for the foreseeable future face the prospect of catastrophic all-out war. We are certainly no longer likely to have forces which are out of touch with the home country for extended periods of time. The noble Lord, Lord Burnham, referred to the problems of maintaining that sort of order in East Timor. Many of us have been reading a great deal about the revolution in military affairs over the past few years, including instant communications on a global basis. Even military forces in the jungles of East Timor are not out of touch with the Ministry of Defence or with UK strike command.

The world has changed and moved on and the structure of discipline certainly needs to reflect that. Expeditionary forces today remain in constant communication with headquarters and with the MoD. We are not sending forces to the north-west frontier for months at a time, or to spend weeks sailing around the Pacific, as the "Bounty" did, totally out of touch with any other force.

The second point which various people made to me is that the role of our volunteer and professional forces is to defend democratic values. I was told that we should therefore take care to ensure that they represent democratic values as far as is practicable and compatible with their functions.

Thirdly, I was told that we want our Armed Forces to reflect what is best in our own society. We should note that, among the tasks that we are calling on our armed services to fulfil, we expect them to represent Britain and British values.

In the Queen's Speech debate I spoke about the growth of defence diplomacy and the immensely valuable work that British officers and teams are carrying out across eastern Europe in a number of states of the former Soviet Union, and in Africa where they are training military forces to accept the principle of civil control of the military and the principle of the military as servants of the state rather than of those who wish to take over the state. If we want our services to fulfil and to represent those important tasks, we must ensure that the values within their discipline system are those of which we can be proud.

Can the Minister tell us whether this Bill is likely to be the last one on military discipline to come before the House in this Session? Of course, she will be aware that the matter of gay rights in the military is on the agenda. It has been put on the agenda by the European Court of Human Rights. That is a further issue of civil rights and of the representation of democratic values within the military. Can we be assured that a separate Bill on that will follow shortly?

I have already referred to resistance to change. It is necessary that anyone who is proud of the service within which he or she operates accepts change. However, I believe that warnings of disaster would over-stress the threat of change. The most robust comment that was made to me by my friends over the weekend was that resisting changes in the discipline system is the kind of approach that led the British Army to shoot a number of soldiers who were suffering from shock during World War I. We no longer do such things, but we need to recognise that further reforms must not undermine the changing Armed Forces and that they must represent a basis for more highly trained, professional, democratic but nevertheless still effective Armed Forces. I welcome the Bill.

Photo of Lord Bramall Lord Bramall Crossbench 3:52 pm, 29th November 1999

My Lords, when the Human Rights Act 1998 was debated in your Lordships' House many noble Lords with personal experience of dispensing military discipline and, I hope and believe, justice, warned that if the Act were applied in precisely the same degree to those under military discipline with particular responsibilities in terms of obedience and duty as it were to those in civilian life with no such responsibility, discipline would be adversely affected when most needed and seriously undermine the authority of the all-important commanding officer. Therefore, there was a strong case for some sort of derogation from the Act for the Armed Forces, as I believe the French have wisely achieved for theirs.

At the time, as the noble Lord, Lord Burnham, has said, assurance was given by the noble and learned Lord the Lord Chancellor that it was not intended or anticipated that the Armed Forces should be so affected and if that appeared likely, special legislation may have to be introduced to correct that.

However, that has not happened. There has been no blanket or partial derogation for the forces. The Human Rights Act is soon to incorporate into our national law those parts of the European Convention that concern the rights and civil liberties of all individuals. The Ministry of Defence has accepted the advice of counsel that to be precisely compatible with the articles of the convention and, therefore, with our national law, the Armed Forces Discipline Bill must now go further than the very sensible 1996 reforms and make major changes in respect of current arrest and summary dealing procedures. Despite the Minister's fine words about the Armed Forces which will be much appreciated, that "re-raises" all the fears originally expressed.

Perhaps I may quickly tell noble Lords who are less experienced than my noble and gallant friends, or the noble Earl, Lord Attlee, and the noble Lord, Lord Vivian, what will happen on the ground. At the moment when a serviceman or servicewoman is brought before the commanding officer on suspicion of having committed an offence, the commanding officer alone decides whether, in accordance with criteria similar to the Bail Act 1976, he or she should be placed in custody pending investigation and trial. If the matter is capable of being dealt with summarily by the commanding officer, it is entirely his decision whether to do that. The accused must then attend the hearing, although if he or she still wishes his or her case to be heard by an independent tribunal before the commanding officer passes sentence, he or she is given the right not to accept the award but to be tried by court martial, which of course can award a greater punishment. In a disciplined society, I believe that that ensures that justice is done.

Under the new Act, let us take the case of, say, two soldiers accused of a disciplinary offence likely to deserve a custodial sentence. If the commanding officer considers that the suspects should be held in close arrest prior to charge, within 48 hours he must bring their case before a judicial officer to confirm the period of custody which cannot, without referring back to him again, be more than eight days at any one time.

Before the commanding officer can even start to deal with them, the accused have to be asked whether they are prepared to be tried by him at all, or whether from the outset they want a court martial, which cannot now give a greater sentence than that which the commanding officer can give. Suppose one of the accused says that yes, he is prepared for that, but the other is not, the one who has elected for a court martial will then have to be held, with periodical references to the judicial officer, until the court martial is applied for and convened. The one who is brought up in front of his commanding officer and receives a sentence has a second bite at the cherry and has to be given 21 days in which to appeal against his commanding officer's punishment on grounds of finding or sentence or both.

That appeal will have to go to an entirely new summary appeal court, consisting of a judge advocate and two military officers drawn from outside the accused's chain of command. The accused is allowed to be legally represented and if the commanding officer has awarded a custodial sentence--detention--that sentence would have to be suspended for that 21-day period, although what one would do with the man in the interval is not at all clear.

Try transposing all that to the remotest theatre of operations where judicial officers are in short supply, if they exist at all, and where commanding officers and adjutants have as their first priority operational matters; then try to assess the extra time-consuming administrative burden that will be thrust upon the unit, to say nothing of the slowing up of justice which is not necessarily in the interest of the accused, let alone in the interest of the regiment or unit. Consider the general uncertainty about discipline that will prevail and, above all, the undermining of the commanding officer's standing and authority at a time when his leadership and the confidence that he engenders are all important to the unit's professional performance. The mind boggles. What a licence that would give to what I may describe as the barrack-room lawyers and to the unofficial punishments behind the gym which we have done so much over the years to stamp out--completely, I hope.

I have no doubt, particularly hearing what the Minister has said, that this Bill will provide copper-bottom protection to the Armed Forces' disciplinary procedures against legal challenges in courts and tribunals in this country. For that reason, the Armed Forces may have to learn to live with it, albeit reluctantly. But let us be quite clear: it is doing the Armed Forces no service at all. It will be making their job, particularly the exacting and key one of commanding officer, infinitely more difficult.

First, punctilious compliance will undoubtedly prove--I say this without fear of contradiction--to be grossly expensive both in manpower and financial resources. The extra manpower required to administer the summary appeal system, the number of legal staff, judge advocates and the military police that will be needed do not exist and will have to be specially recruited. That may prove difficult. Moreover, to that extra personnel cost must be added the cost of training all concerned in this complicated procedure, the travel involved and the amendment and reprinting of all the existing publications, manuals and regulations. That will amount to tens of millions of pounds and be ongoing, just at a time, as the noble Lord, Lord Burnham, pointed out, when an overstretched budget is being arbitrarily cut by 3 per cent compound interest per annum. That will have repercussions throughout the defence programme.

Secondly, it will greatly add to the administrative burden of units, both in barracks and operational situations, and it will slow up the course of justice.

Thirdly, as I said, it is likely seriously to undermine the authority and esteem in which the commanding officer is held--and he, as we all know, is the key figure in the morale and motivation of a unit on which professional effectiveness depends.

What can be done? A great mistake was made in not lodging a reservation or "opt-out clause" as our more pragmatic French comrades-in-arms did. I believe that it should still be possible to win some exceptions to compliance, provided the Government are prepared to mount a vigorous justification. The two areas I have in mind are, first, the appeal to the summary award and, secondly (as a fallback), a waiver to allow a custodial sentence to be served within the 21-day appeal period.

For example, if the soldier can, at the outset, elect not to be tried by his commanding officer but have direct access to a European Convention on Human Rights-compliant court, surely the right of appeal against the summary sentence--the second bite of the cherry--becomes largely superfluous and a strong justification could be made to dispense with it altogether. That would remove a lot of the objections and uncertainty over discipline as well as significantly cutting down the cost.

If the first fails, the second is that if an accused has no intention of questioning his commanding officer's summary award, he should then be able to sign a waiver allowing any custodial sentence to be served at once without waiting for the 21-day period to elapse. That would certainly speed up justice.

Finally, whatever the outcome--I hope that the Government will seriously consider the points raised in this debate because there is a great deal of experience in this Chamber on these matters--the Ministry of Defence must insist that it be provided with the extra financial resources required to implement any reforms. I gather that the Lord Chancellor, in whose department come all the judge advocates, has firmly said that any extra expenditure on judge advocates must be borne by the Ministry of Defence and not by his department. I hope that the Ministry of Defence, backed by the right honourable gentleman the Prime Minister, will be equally robust with the Treasury over this entirely non-military requirement; otherwise, apart from any other damage the Act may do, it will have a knock-on effect throughout the defence programme and achieve what, in the vernacular, one might call a "double whammy".

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench 4:03 pm, 29th November 1999

My Lords, I recall during the debates on the Human Rights Act 1998 drawing your Lordships' attention to two specific features of the legislation which concerned me and other noble Lords. One was to do with the way in which human rights cases brought by service personnel would be heard by our national courts under the new legislation. The second was my concern about the progressive upheavals at the very heart of service discipline. On top of the impact of the new human rights' legislation on the Armed Forces Acts, service courts martial and other legal arrangements had had to be changed. There was a climate of uncertainty about the provisions of the Armed Forces Acts.

Responding to those points, the noble and learned Lord the Lord Chancellor sought to allay the concerns which I and other noble Lords expressed. He indicated his willingness to,

"consider designating military courts as the proper venue for the consideration of complaints on convention grounds by Armed Forces personnel".

The Lord Chancellor appeared to accept that there could be problems for the Armed Forces if local civilian courts were to take a variety of views about similar cases brought before them. However, he went on to say,

"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".--[Official Report, 5/2/98; col. 768.]

I was heartened by what the noble and learned Lord said. Those assurances did much to allay my concerns. But not for long. We did not get the single military court for which I pressed then and subsequently, nor the use of military courts which was hinted at by the Lord Chancellor. In spite of the concerns expressed, we were steamrollered, and civilian courts will be used. Yet another derogation in the authority of the Armed Forces Acts was imposed upon the Armed Forces. So much for the assurances of the Lord Chancellor that there would be no threat to the effectiveness of the Armed Forces. It proved an empty promise.

Now we are considering a Bill which, far from appearing to treat the convention as a flexible instrument, goes to extraordinary lengths to dot every "i" and cross every "t" in the treatment of the convention within the Armed Forces Acts. The detail is mind numbing and the scope for misunderstanding and error seems to be almost infinite. I make no criticism of the drafters of this Bill, but the result of their efforts to apply the convention rules is not a good example of military precision and unambiguous detail. Is that what the Lord Chancellor meant by "flexibility"?

All of us share the high regard which our Armed Forces so rightly enjoy in this country and throughout the world. The Minister expressed that point strongly in her opening remarks. That outstanding reputation rests on four pillars. The first is the quality and commitment of the individual as a volunteer. The second is the ethos of his or her service and all that that means in terms of corporate commitment, pride and loyalty to service. The third pillar is the professionalism achieved by the most rigorous and applied training for the operational roles which may be faced. The fourth pillar--I do not put them in any ascending or descending order of priority any more than one could claim that any one of the four legs of a chair was more important than any of the others; all are of equal importance--is discipline, both individual self-discipline and service discipline. If we erode one or more of those pillars, then we start to undermine the stability and professionalism which are the much-admired hallmarks of the British Armed Forces.

I fear that there may be too many in government and advising government without enough experience of the forces who consider that the services must accept, regardless of any impact upon them, all this revision of the tried and tested methods of managing their discipline. But service discipline is an operational as well as a legal matter. I wish that Ministers would heed closely some of the well-founded advice that they have been getting from those who have spent a lifetime in the services.

As I, with others, stressed during the passage of the Human Rights Act 1998, I was concerned that we were,

"in danger of allowing it"-- that is, the Bill--

"to undermine the essential ethos, military discipline and responsibility of commanding officers within our Armed Forces".--[Official Report, 5/2/98; col. 762.]

I accept that there is a legal requirement to bring the Armed Forces Acts into harmony with the requirements of human rights legislation, but the Bill seems bent on implementing every jot of the requirements without in any way exploiting in the interests of our professional forces the flexibility of the convention that the Lord Chancellor stressed and prayed in aid to gain your Lordships' acceptance of the human rights legislation as it affected the armed services.

We should be bending over backwards to protect the Armed Forces from any derogation of their strength and quality rather than be bending over backwards, as the Bill seems to do, to knock the Armed Forces into line with every detail of the convention at any cost.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, does the noble and gallant Lord agree that Clause 12, which provides that a court martial shall not impose a more severe sentence than the commanding officer could impose in the case of election for trial by court martial, goes quite beyond and against the Police and Criminal Evidence Act 1984? Crown Courts can of course impose higher sentences than magistrates. That is not something required by the convention on human rights and is itself likely to encourage elections for trial by court martial rather than by commanding officers--which surely must be deleterious. Does the noble and gallant Lord agree, or is that a false point?

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

My Lords, I am grateful for the noble and learned Lord's intervention. He is of course more learned in the law than I am and I take very much on board the point he has made so effectively.

To add to my unease, the timetable that is expected of the Ministry of Defence to put in place the requirements of the Bill by 2nd October 2000 is ridiculous. There is so much detail to master, resource and recruiting implications, regulations to prepare and promulgate, training and preparation of those engaged in the command chain, and so forth. The bureaucracy of the enterprise is massive. We do not yet know when the Bill will receive Royal Assent. If there are difficulties in the early months, it will not be the Lord Chancellor's Department, which set the timetable, that takes the rap but those in the Armed Forces. They will, as always, do their very best to achieve any task set them by the Government--once again demonstrating the professional commitment we are in danger of accepting without question and which I fear we are seeing eroded as well.

The services are expected to take on board and master a whole new disciplinary regime at a time when there are many operational and other pressures upon them up and down the command chain. If the Bill goes forward in its present guise, surely it is sensible to take it at a less frenetic pace. After all, it is much more than a solely legal, technical issue. Due to the difficulties of getting the civil courts and the appropriate authorities ready, it was necessary to delay commencement of the Human Rights Act 1998 until October next year. Let us make use of the flexibility that the Lord Chancellor drew to our attention. Let us choose a more realistic and later date for the implementation of the new legislation. I hope that the noble Baroness the Minister will indicate that there is flexibility about the start date and in the way that the convention is to be incorporated into the Armed Forces Acts.

The Lord Chancellor has said explicitly that the human rights convention was a flexible instrument. The Government must surely be willing to draw on that flexibility and do all that is necessary to safeguard, not undermine, the authority and status of a commanding officer and the universally admired quality and professionalism of our Armed Forces.

Photo of Lord Vivian Lord Vivian Conservative 4:14 pm, 29th November 1999

My Lords, this is without doubt a most important Bill. In the Third Reading of the Human Rights Act 1998 and in the last defence debate, I alluded to the fact that the consequence of that Act would affect the services discipline Acts unless the Armed Forces could claim some derogation or exemption from some of its provisions. I have always considered that the Human Rights Act 1998 should apply to the services. I would be most grateful if the noble Baroness the Minister will tell the House why the Government are unable to support the case for exemption from Articles 5 and 6 of the convention, which have caused the Bill to come before your Lordships today.

I have consistently reminded the House of the essential need for military ethos in the Armed Forces of the Crown. One of the many parts of that military ethos stems from its own form of discipline--which the nation has always recognised as being necessary for our sailors, soldiers and airmen. If that military ethos is diminished in any way by the Bill, the Armed Forces will suffer. It is vital that your Lordships ensure that this House does everything within its power not only to make the Bill workable but to ensure that it is the very best deal that we can obtain for the services and that all their concerns have been addressed.

It is difficult for anyone who has not been in the services to understand why it is so essential that disciplinary matters are dealt with fairly, at speed and in as short a time as possible. Some may think that the Bill is a mere technicality. It is far from that. The morale and efficiency of a regiment depends very much on good discipline and in the way that disciplinary matters are handled. In that respect, your Lordships should ensure that the powers of a commanding officer are not undermined in any way by the Bill and that all the proposed procedures are workable. Although the Bill attempts to do that, are your Lordships completely satisfied that its proposals will not in any way undermine those powers? If not, we must by amendment in Committee improve the Bill to ensure that it does not.

I have read through the Bill and the Explanatory Notes but I have not yet scrutinised the Bill in any great depth. It introduces a provision for a judicial authority to determine whether a suspect or accused person should be held in custody. The Bill also gives the accused an earlier opportunity to elect to be tried by court martial and it establishes an appeals procedure for those whose cases have been dealt with summarily.

Without going into fine detail, I draw your Lordships' attention to the general aspects of custody and matters relating to elections for trial by court martial and summary appeal courts. Currently, a commanding officer has a right--as the noble and gallant Lord, Lord Craig, said--to detain a person in close arrest subject to various regulations. The new regulations in the Bill would still empower a commanding officer to detain an individual in close arrest but they are different and somewhat cumbersome--as has been made necessary by the recent provisions of the Human Rights Act 1998.

In future, if a commanding officer wishes to keep a suspect in custody in excess of 48 hours, he must apply to a judicial officer--who will have the authority to grant this--for the suspect's continued detention. Judicial officers will be found from the Judge Advocate General's Department but it is not clear how the judicial officer will grant a period of continued custody. Will it be possible for him to use signal communications? How will he hear the application for extended custody? Mention is made of the possibility of using real-time video links wherever possible, but will that be acceptable in any court of law and work anywhere in the world?

Currently, in all cases, an accused may elect for trial by court martial instead of being tried summarily. The Bill will allow the accused to be offered the right of trial by court martial prior to his commanding officer starting any summary dealings and hearing evidence related to the charge. In my experience, no accused elected for trial by court martial during my period of command, but it may have been that under the existing regulations an accused may be awarded a greater sentence by a court martial than a commanding officer can give. The new rules now state that a court martial may not award a greater sentence than a commanding officer can give. Why has this new regulation, which might encourage an accused to apply for trial by court martial, especially as he may receive legal aid, been included?

It has been pointed out that summary appeal courts will be established in the future to offer to those who have been dealt with summarily by their commanding officer an appeal procedure against finding and sentence. It is not clear why the president of this court has to be a judicial officer. Perhaps the Minister could explain why officers from the Directorate of Army Legal Services, and the equivalent departments in the other two services, could not carry out this responsibility. For that matter, why is it not possible for a senior officer and two other officers from outside the chain of command, but from the same service, to do the same?

It is right to bring to your Lordships' attention, as other noble Lords have done, the heavy costs involved in these changes to current military law. The Explanatory Notes reveal that there may be 850 to 900 appeals to the summary appeal court every year. The estimated costs of implementing the Bill will be in the order of £6.5 million per year, with estimated start-up costs of about £1.75 million. There will be 95 additional personnel, together with an estimated requirement for 37 additional civilians to be employed by the Ministry of Defence. The largest single element of these figures is for an additional 53 non-commissioned officers from the Royal Military Police. Can they be recruited as an overall increase?

In conclusion, the system has become more cumbersome and bureaucratic. The House must ensure that these changes do not lead to delay. To go from one military discipline system, which is expeditious, to a slow and tortuous system would not be in the best interests of any servicemen nor the Armed Forces themselves. It is an expensive change to a system that works well, but it is understood why these changes have to be made. However, any lack of resources will bring a delay, and delays will bring about a serious loss of morale. A serviceman likes to see disciplinary offences dealt with speedily and fairly.

I have one final point to make. Can the Minister give the House an assurance that the additional money required for this new system will not come out of the defence budget but from the Treasury, in view of the already known difficulties of the 3 per cent savings in the defence budget? Can the noble Baroness also confirm that it will be possible--as mentioned by the noble and gallant Lord, Lord Craig--to implement this new system by the required date in October next year?

Photo of Lord Inge Lord Inge Crossbench 4:22 pm, 29th November 1999

My Lords, perhaps I may, first, thank the Minister for having the courtesy to write to me outlining some of the changes proposed in the Armed Forces Discipline Bill. It will not surprise noble Lords to know that I agree with much of what has been said, especially the remarks made by the noble and gallant Lord, Lord Bramall. Therefore, I believe I can be brief. However, I should like to highlight and reinforce some of the points that have been made.

I understand why some changes are necessary and why it is necessary to be more compliant with the European Convention on Human Rights. However, I must have been talking to different people from those to whom the noble Lord, Lord Wallace of Saltaire, spoke. The view that I have had quite clearly expressed to me from those in the Armed Forces--be they on the Left or on the Right of the service--is that this is the best deal that they felt they could negotiate.

Perhaps I may just touch on some of the points that have been raised. I turn, first, to the authority of the commanding officer. I cannot stress strongly enough, as has already been said, the critical importance of the commanding officer, both in peacetime and in war; indeed, you cannot separate the importance of the commanding officer in peacetime from that of the commanding officer on operations. Anything that undermines his authority must mean that the great majority of people in his command will suffer. I am quite clear that the proposed changes, especially as regards the summary appeal court, will affect--and have a bad effect on--the authority of the commanding officer.

Secondly, military discipline needs to be responsive; that is, responsive both in the investigation of the offence with which the person is charged and then, after the investigation, in terms of the case being heard and dealt with quickly. There have already been complaints that we are not responsive enough in the military as regards investigating some charges or offences quickly enough. I believe that this proposal will undoubtedly further delay the process of dealing with offences. That will be particularly so on operations. The noble Lord, Lord Wallace of Saltaire, said, "Surely you can talk to people and communicate with them, whether you are in the jungles of East Timor or in Kosovo". Of course you can; but that is a misunderstanding of what the military is trying to concentrate on at a time when on operational service. We should not separate the two situations.

I should particularly like to talk about the summary appeal court, so as to ensure that the changes really make it responsive to Article 6 of the European Convention on Human Rights. When you discuss this with the people who are trying to bring in this legislation, they will tell you that, if need be, they will have to hire on an "as needed" basis additional judge advocates to deal with these cases. The idea of people with no experience of military ethos, operations or the military code having to chair such meetings and then bringing in two officers from outside the chain of command to hear their report, will, I believe, not only undermine and create tensions but also mean that the soldiers, sailors and airmen will suffer. I believe that the noble and gallant Lord, Lord Bramall, said that they will be in danger of being taken behind the barrack block, and I have a worry that commanders will not in fact hear such cases. It will become too complicated, so they will not bother. The effects on military discipline will, I think, be very considerable.

Thirdly, as has been mentioned, the costs as regards the additional barristers, lawyers, military men, and so on, who will be required to implement these changes will be considerable--and this at a time when the £9 million needed could be so much better used elsewhere in the defence budget. Like other speakers, I very much hope that the money to fund this will be found outside the defence budget. It would be ironical to bring in such changes and charge them to the defence budget when we know that some of the personnel proposals made under the Strategic Defence Review cannot be funded at present.

Finally, in addition to reinforcing what has been said, I express the hope that the Minister will reconsider some of these changes to see whether they can be improved. It is worth bearing in mind that the Armed Forces are having to deal not only with a very considerably increased operational load at the moment, but also, for very good reasons, they are having to deal with changes--for example, how they handle ethnic minorities, which I totally endorse--and new legislation on homosexuals. Now, in addition, they will have this further task of dealing with the changes under the Armed Forces Discipline Bill. As one regimental sergeant major said to me, "You know, Sir, we're spending more time actually worrying about minorities than we are about most of the people for whom we are responsible".

Photo of Lord Carver Lord Carver Crossbench 4:28 pm, 29th November 1999

My Lords, I should like, first, to thank the Minister for her clear explanation of the Bill. Like my noble and gallant friend Lord Inge, I thank her also for the courtesy of the letter which she wrote on 17th November to members of what I would call "the noble and gallant brigade" to ensure that we were not taken by surprise and could therefore make our plans of attack.

I fully appreciate why the Government had to act quickly to ensure that the service discipline Acts comply with the European Convention on Human Rights. Failure to do so would open the floodgates for barrack-room lawyers, supported by those unscrupulous members of the legal profession who are out to exploit any form of protest from which they can profit, probably on a no-win no-fee basis. They would be able to sue not just the Ministry of Defence, but also probably individual commanding officers, for wrongful arrest or custody.

The Government are therefore quite right to act quickly. However, there is no denying that what the Bill proposes tends seriously to undermine the authority of, and trust in, the commanding officer as the fount of both justice and discipline in a military unit. Maintenance of that authority and trust is a vital element in the morale and the efficiency of a unit, especially a combat one. On the battlefield, not only must orders be obeyed, but negligence and idleness cannot be tolerated. It is not just that disobedience or negligence may prejudice completion of the task, but that such acts put the lives of comrades at risk. Of course, a good unit does not depend on the military legal system for its morale, discipline and efficiency. The legal system exists to deal with the less good or with those who, while good soldiers, sailors, airmen or women, go astray from time to time. If it is not clear and easily applied, it opens the door--as the noble and gallant Lord, Lord Bramall, suggested--for unofficial ways of trying to enforce discipline, and that is most undesirable. As several noble Lords have said, it is unfortunate that when the government of the time ratified the convention, they did not--as the French did--recognise this and enter a reservation as to its application to the legal system of their own Armed Forces.

I was not present--as other noble Lords were--when what became the Human Rights Act was debated. I understand that after the amendment of the noble Lord, Lord Campbell of Alloway, was rejected at the Committee stage, he received an assurance that his point was taken and that a special appeal court for the Armed Forces to consider action taken under the Human Rights Act would be established. I hope that the noble Baroness can say what has happened to that assurance; I certainly see no sign of it in this Bill. Incidentally I am delighted to note that the noble Earl, Lord Attlee, is to speak because as far as I know he is the only Member of this House who is presently the commanding officer of a military unit. He will be able to speak with authority on the problems that the Bill will pose for him and other commanding officers.

I accept that any measure to make the service discipline Acts comply with the convention is liable to weaken in some way the authority of the commanding officer. However, I must express my concern about two aspects of the Bill. The first is the question of whether the procedures can actually be made to work. I refer to the constant toing and froing between the unit orderly room and the judge advocate's department almost every other day over every case, the former constantly having to provide justification for keeping the individual in custody and the latter, no doubt, querying aspects of it, or even just delaying a reply. I understand that the service authorities, with the help of modern information technology, hope to be able to make the system work. That may be possible in peacetime conditions, or even in peacekeeping or peace enforcing operations, but I have the gravest doubts about whether or not it could be made to work in operations of higher intensity. Would it have been workable in the Gulf or in the Falklands? As I believe the noble Lord, Lord Burnham, mentioned, could it be applied today in East Timor? I certainly cannot see how its application would have been possible when I was a commanding officer in North Africa, Italy and Normandy in the Second World War.

My first appeal to the noble Baroness is for her to send the Bill back to the legal and military experts to see whether a simpler system can be devised dealing with the whole problem of custody before trial which will be workable in operations of high intensity, or whether there can be a different procedure when a unit is declared to be on active service. As far as I recall, the old Army Act had different procedures for a unit on active service. Certainly, all the soldiers' charges began with the letters, "WOAS"--when on active service.

I am even more concerned at the proposal to establish summary appeal courts. That seems to me the greatest potential threat to the authority of the commanding officer. The accused man or woman will already have had the choice of deciding whether to be tried by his commanding officer or by court martial, and will have chosen the former. To allow him then to say that he does not like the commanding officer's decision and to refer either finding or sentence, or both, to a separate court not only fundamentally undermines the commanding officer's authority, but, as several noble Lords have said, will take time and will involve considerable effort and expense.

I draw your Lordships' attention to paragraph 41 of the explanatory notes on the Bill, provided by the Ministry of Defence, which states:

"The Bill will introduce a right of appeal to a summary appeal court established under each of the three SDAs"-- that is to say, the service discipline Acts--

"This supplements the right to elect trial by court-martial described in the previous section of these notes, by offering to those who have been dealt with summarily a second avenue to a court that is compliant with the European Convention on Human Rights".

I emphasise the words "supplements" and "second avenue". I suggest that there is no need to supplement or to provide a second avenue in order to comply with the convention. All that is needed is to leave the rule about election of trial by court martial in summary proceedings as it is today under the 1966 army and air force Act; that is to say, that the accused can elect trial by court martial once the commanding officer has found the charge proved. That provides the accused with an avenue of appeal--that is, to a court martial--against finding and sentence. It is only the unnecessary change proposed in Clause 11 to the right of election before summary proceedings which might--although I doubt it--justify the establishment of summary appeal courts.

I therefore urge the noble Baroness to take the Bill back to the Ministry and get the legal experts to remove Clauses 11 and 14 to 25. If they have doubts about whether or not a second avenue is needed, let it be tested in the courts after the Bill without those clauses has been passed, when a case is brought, if it is, on the grounds that the absence of an avenue of appeal from a commanding officer's summary award is in breach of the convention. That is, I believe, the most practical and best way forward to get rid of the undesirable establishment of summary appeal courts.

Photo of Lord Chalfont Lord Chalfont Crossbench 4:38 pm, 29th November 1999

My Lords, it is perhaps not surprising that at this time of day when so many noble and noble and gallant Lords have spoken, there is not much left to say. However, I recall someone saying during the passage of the House of Lords Bill that everything that needed to be said on that subject had already been said, but that not everyone had yet said it. I hope therefore that your Lordships will forgive me if I add a few comments to those points which have already been made by noble and noble and gallant Lords.

Before I do, I shall point out something which may be of interest to political historians. I mention this more mischievously than maliciously. Throughout the debate the number of Chiefs of Defence Staff in the House has outnumbered the population on the government Benches. I ask noble Lords to draw no especial conclusion from that; I mention it as a point of historical interest.

I begin by picking up something that the Minister mentioned in her opening remarks about the need to bring the Armed Forces within the general ambit of this kind of convention and this kind of legislation. I hope that the Minister and the Government will bear in mind that the Armed Forces are not like the rest of society. Officers and soldiers in the Armed Forces are not like lawyers, politicians or shopkeepers; they have a different culture and a different ethos which need to be fully respected. The ethos comes from one simple fact: soldiers, sailors and airmen have an unlimited liability; they put their lives on the line in the performance of their daily duties. For that reason, the ethos and culture of the Armed Forces should be taken very seriously. It is not self-evident that the principles of human rights and justice which apply to the rest of society necessarily should apply to the Armed Forces.

In that context, perhaps I may mention something which the noble and learned Lord the Lord Chancellor said in the debate on the Human Rights Bill in 1998. This has not yet been mentioned. He said:

"The Secretary of State for Defence takes the view that the Bill raises no issues which are special to the Armed Forces".

It was possibly on this advice that the noble and learned Lord the Lord Chancellor went on to say that the Human Rights Bill,

"poses no threat to the effectiveness of the Armed Forces".--[Official Report, 5/2/98; col. 768.]

I suggest that that is at least a matter of opinion. In my opinion, the Bill poses a considerable threat to the effectiveness of the Armed Forces.

I underline what has been said already about Clauses 11 and 12 and Clauses 14 to 25 of the Bill. As far as concerns Clauses 11 and 12, your Lordships have been told that it used to be the case that when a soldier, sailor or airman was brought up on a charge in front of his or her commanding officer, the commanding officer heard all the evidence and arrived at his conclusion as to guilt or innocence and then said to the accused "Will you take my award, will you take my punishment, or would you rather the matter went to a court martial?" Now, under the new dispensation, the accused will have the right to elect for trial by court martial before the commanding officer has heard the evidence and reached his conclusion. This would seem to mark the beginning of the erosion and the status of the commanding officer.

That is further undermined in Clauses 14 to 25 by the setting up of the summary appeal courts. As your Lordships will know from the Bill, the summary appeal courts will consist of a judge advocate and two officers not connected with the chain of command. In choosing whether to take a summary process of trial by the commanding officer, the accused now has 21 days in which to decide whether he or she will go to the summary appeal court.

The first point I should like to make about that is that the delay will undermine the justice process in the Armed Forces. One of the great things about the administration of justice and discipline in the Armed Forces--in the Army in my context--has been that justice is done quickly and is seen to be done quickly. Any delay is bound to be bad for morale and bad for the perception which a soldier, sailor or airman has of the efficiency and discipline of the unit in which he or she is serving.

There is no need for me to go further because the points against the Bill have been forcefully made already. It has been pointed out that we are now administering a new layer of bureaucracy across the top of the whole of the proceedings of Armed Forces discipline. That is self-evident from the provisions of the Bill. With that, obviously, goes delay. It is inevitable that justice in the Armed Forces will not be quick, will not be summary and will not be seen to be fair and expeditious. There will be delays, and these will have their effect on morale.

Finally, there is the matter of cost, a point which has been made very forcefully by a number of noble and gallant Lords. The summary appeal courts are to have not only extra officers assigned to them, but a judge advocate also. As noble Lords will see from the Bill, these judge advocates must have had at least five years experience as qualified lawyers. Such animals do not come cheaply; one cannot get qualified lawyers of five years' experience to come into the Armed Forces without paying them, and paying them very highly.

It may not be a matter for the Ministry of Defence to decide, but, in that context, I should like to know what the Ministry of Defence understands about the defraying of the obviously very considerable extra costs which will come about as a result of the Bill. Are these costs to be borne by the defence vote? If so, as noble and gallant Lords have already said, an already overstretched budget, which caters for already overstretched forces, will become further overstretched, to the great detriment of the Armed Forces and the effectiveness of our services.

Having said what I think about the Bill, I conclude by saying that the Ministry of Defence has made the very best of a bad job. As the noble and gallant Lord, Lord Carver, said, it has acted quickly and it has produced something which, within the constraints of the requirements of the Bill, is comprehensive and clear.

There may be those who, like me, believe that not all of us--and certainly not all of the Armed Forces--should automatically be subject to the provisions of conventions such as the European Convention on Human Rights, or even the Human Rights Act 1998. However, at the moment, it is not profitable or productive to start talking about derogation from the European Convention on Human Rights or from the Human Rights Act. It is now fairly clear that the Armed Forces have to be brought within those constraints. As I said, the Ministry of Defence has gone about this in a constructive way. It is a duty it would perhaps not have chosen had this been a matter entirely for the Ministry of Defence. But it has approached the matter in a constructive way and we should now concentrate on some of the bad, weak points which have been underlined, such as the 21-day period in the course of an appeal to the summary court of appeal, and the circumstances in which an accused soldier, sailor or airman may elect for trial by court martial rather than for trial by his or her commanding officer.

I suggest that we should now move forward with the Second Reading and--if it is not too much of a military analogy--hold our fire until the Committee stage of the Bill.

Photo of Lord Hardy of Wath Lord Hardy of Wath Labour 4:49 pm, 29th November 1999

My Lords, perhaps I may say a few words in the gap--not from the point of view of considerable military experience but as someone with considerable admiration for our Armed Forces today and with an interest in military history.

Not long ago I was reading about a debate in your Lordships' House in which a large number of very senior officers, perhaps five-star, took part. It was a debate on the retention in the Armed Forces of the death penalty for desertion. A substantial number of them spoke and, in a modern context, their words were not attractive. In those days, the services may have relied on discipline and fierce regulation--inculcating perhaps a greater fear of the superior than of the enemy--but that has changed. It has changed because of the development of man-management and a greater sensitivity in the Armed Forces. People serving today do not have the fear of punishment, of superiors and of court martial that may have once been the case. Without wishing to embarrass the noble and gallant Lord, Lord Inge, the Green Howards were not run so much by fear as by their respect for the noble and gallant Lord when he was their commander. I know that to be the case because at that time a number of my constituents served in his regiment. Nevertheless, I believe that one point that has been made needs to be considered by my noble friends; that is, the provision in Clause 12. As noble Lords have already said, respect for the commanding officer must be maintained; he occupies perhaps the most important position at any given time, and certainly when active service is being pursued.

I believe that my noble friend might also receive with sympathy the argument that the cost should certainly not be met from the defence budget. When I served in the Commons and my constituents asked me whether they should pursue a matter in the law, I would always tell them that if they could avoid that course they should do so, unless, of course, they were very wealthy. The services are not very wealthy at present and I trust that my noble friend will take due note of that particular request from noble Lords.

Photo of Lord Renton Lord Renton Conservative 4:50 pm, 29th November 1999

My Lords, I regret that I was not able to be present at the start of the debate owing to family reasons. However, I believe I should mention that I am one of the few people still living who attended the European Council when the European Convention on Human Rights was being considered. Indeed, I was closeted with M. Rolin, the Belgian lawyer who represented Dr Mossadek at The Hague in order to agree with him--and eventually it was agreed by all concerned--the powers of the European Court of Human Rights.

I feel obliged to mention that at that time--it was just a few years after the war--I do not believe that members of any party in this country gave a moment's thought to the effect of the convention on military discipline. But now we must consider it. I believe that the Government must review the convention and our acceptance of it in order to ensure that military discipline is maintained. Speaking as a lawyer, naturally on occasion there has been--I remember it well during the war in which I served--a conflict or an apparent conflict between discipline and justice. That is very difficult to avoid. But I believe that especially in time of war--and we should be thinking in terms of the application of this Act in time of war--discipline must if necessary prevail over justice.

Photo of Earl Attlee Earl Attlee Conservative 4:52 pm, 29th November 1999

My Lords, before I speak to the Bill, I remind the House that I have an interest as I am a serving TA officer and I have delegated powers of summary jurisdiction. Noble Lords should be aware that I would make the same speech on whatever Bench I happened to be sitting. I apologise in advance if I test your Lordships' patience. I should like to join with the Minister in her fulsome praise of our Armed Forces. From my very modest experience, I can agree with every word that she said about their activities.

The Minister has marketed the Bill as being technical and one which we have no choice but to implement. However, it is anything but technical or intrinsically beneficial, as she put it. It forms part of the process of salami-slicing our military capability in a variety of ways, each little stage appearing to be perfectly reasonable. I am sure that the Minister understands her brief on the Bill, and in detail. But when she introduced the Bill I was not sure whether she understood the nature of our military ethos and the need for robust service discipline arrangements. However, she did cover her points in her usual highly effective manner.

Moreover, the public has little understanding or experience of military matters, and that is reflected in the composition of another place. The public knows that we have the Challenger 2 main battle tank, RAF Tornadoes, HMS "Invincible" with her Harriers and the Special Air Service, and it believes that this combination will defeat any opposition. All noble Lords who have spoken know that that is not the case and that military operations can go horribly wrong. The worst case scenario is that civilians will be called up for compulsory service, as happened quite properly during the last war.

Although we have a galaxy of talent and expertise, it is unfortunate, to say the least, that no one outside the "military club" has put their name down to speak to the debate. I am sure that the debate would have been less one-sided and better informed if some noble Lords with interests in human rights had been able to speak to support the Minister. I am grateful to the noble Lord, Lord Wallace of Saltaire, as he has provided some comfort to the Minister. No doubt the Minister and others outside who listen to our debate will feel that this was the officer class--and at a stratospheric level at that--defending its position at the expense of junior ranks.

In my case, I spent 18 years as a junior rank in the TA. In fact, the highest rank I achieved was corporal. I enjoyed myself enormously, worked closely with regular soldiers and saw no need to seek an early commission. My military role models were regular NCOs. As soldiers, we certainly talked about the disciplinary arrangements and we all agreed that one could not "beat the system", despite the advice of the barrack room lawyers; and we were content with that situation. But, to put it bluntly, the Army is a hard taskmaster. Indeed, I found myself on the receiving end of summary jurisdiction. Once I lost my camp bed and later on I lost my ID card. I was also a prosecution witness in one minor case. It was interesting to note that afterwards, when it was all over, we all shook hands and adjourned to the bar after final parade. The whole matter was over and finished within seven days. The new arrangements inevitably will introduce considerable delays and that will always be undesirable.

I am now the OC (the officer commanding)--a humble field officer--and I have to administer summary jurisdiction on behalf of my commanding officer, most recently last Tuesday. It is not a pleasant duty as it is more of a disciplinary procedure than a perfectly developed system of justice. One is punishing one's own people. Sometimes it is even necessary to discipline first-rate soldiers, especially for what I would call technical offences such as loss of ID cards. However, if I were either to abuse my powers and act unjustly, or if I did not have the moral courage to exercise them when required, I should soon lose the trust and confidence of the men under my command and morale would suffer badly. The same would apply to any officer, regular or TA, in a command position.

The Bill impinges on two aspects of military law. As implied by the Minister and others, the court-martial system is reserved for the more serious offences that could attract substantial periods of detention, prison, heavy fines or other significant penalties. We know also that a solider can elect to go for court martial rather than accept summary jurisdiction. I believe firmly that the court-martial system should be as well developed a system of justice as possible, while at the same time being militarily effective.

I have served as a member of a few courts martial and it is a very dry and clinical business. Even so, I was struck by the way in which the accused, who is still innocent, is marched in without belt or head gear and under escort. It appeared to me to be degrading and I could not see how it improved the administration of justice. The Bill might not be an ideal vehicle but we shall look at that point during its passage and at the time of the quinquennial review.

During the winter of 1997-98, I had the honour to serve with the Regular Army in Bosnia. However, it was not what I would call a "hot" operation, so I have never experienced the challenges that other noble Lords have faced. Morale in camp was nearly always high, but we suffered one incident of misconduct which had the potential to be very serious indeed. It would not be helpful to describe exactly what went wrong but the full power of the commanding officer was required to deal with the matter and to apply an appropriate sentence.

On the day on which the commanding officer dealt with the charges, the mood in camp was understandably sombre. The soldiers each received a very heavy fine, but I have to say that no one else was going to make the same mistake. The essential point to note is that the next day morale had almost completely recovered and the whole affair had lasted less than seven days--from start to finish. Thus both discipline and morale were maintained at the same time. It is the current system that made that possible. It is important to remember that in a service unit the witnesses will meet the accused, his friends and colleagues on a daily basis. Contrast the service system with how long it would take to deal with a drink-drive offence at home.

Turning to the Bill itself, Clauses 1 to 8 are relevant only to very serious cases and the new arrangements are welcome apart from the fact that they are unworkable for operations. From my experience, they would be very challenging for our relatively stable peacekeeping operations in the Balkans. What would happen if the operation or even the campaign was not going very well? A unit may be trapped behind enemy lines or just very isolated. What would happen about a small detachment on South Georgia in winter? The Explanatory Notes pray in aid video links. The Minister's faith in our G6 communications capability at unit level is touching. It would be nice if for operations we had a secure and efficient means of electronically transmitting reports and returns data from sub-units up the chain of command. We shall be tabling suitable amendments to relax the new arrangements for operations in order to avoid the risk of servicemen having to be detained without legal authority.

Clauses 14 to 25 are, to an extent, consequential on later clauses giving the right of appeal from summary jurisdiction. As explained by the Minister, they give an earlier right of election for court martial, but I do not think that is helpful. For instance, the commanding officer may want to deal with the matter summarily and hear the evidence, possibly because of a local legal requirement, but he may be minded to dismiss the charges. That often happens with road traffic accidents, especially serious ones and ones overseas. Of course, the new arrangements fly in the face of government policy regarding restrictions on the civilian's right to elect for full trial in cases which are triable either way. Under the new arrangements, the soldier could elect for court martial before the commanding officer had an opportunity formally to dismiss the charges even though he was minded to do so in the first place.

Currently, a serviceman can be more severely dealt with by court martial if he elects for it. Under the Bill, he can receive no greater punishment than the commanding officer can give so there is no disincentive to elect court martial; and of course that is the Government's intention, as the Minister explained. If a soldier absolutely insisted on election for court martial for a minor offence, such as loss of ID card, it is unlikely that it would ever happen due to the backlog of more serious cases.

Clauses 14 to 25 are the most objectionable in the Bill as they dilute the authority of the commanding officer and his sub-unit commanders, as noted by many noble Lords. In theory, they confer greater rights on the serviceman; but in practice they will disadvantage him. Take, for example, the Balkans situation that I have illustrated. The commanding officer had to maintain discipline and morale or else risk compromising the success of the operation. If, after being disciplined, one of the soldiers decided not to take it on the chin and spent the next three weeks telling the whole world that it did not matter as he would appeal the sentence, the commanding officer would have failed in his mission. I submit that in the future the commanding officer in that situation would simply remand the soldier for court martial and have the soldier posted back to depot in the UK. The case in question would be easy to prove in a cold, stark court martial centre in the UK and the soldier could expect two months' detention in the military correction centre at Colchester and with no pay. Furthermore, the soldier's career would be ruined or at least held back for two years. Put in that context, the actual outcome seems quite lenient.

I have another worry--I put it no stronger than that. The worry is this: if NCOs find out that their commanding officer or officer commanding cannot effectively operate a disciplinary system, they will inevitably resort to illegal alternatives. There will not be the court martial option for them. The noble and gallant Lord, Lord Bramall, and others have touched on that point.

Clause 9 would allow a deserter to obtain bail after he was apprehended. Noble Lords will easily be able to imagine the circumstances where that could be deeply damaging to the morale of the unit preparing for operations. I wonder whether the Minister can tell the House in what circumstances she thinks it would be appropriate or necessary for the magistrate to grant bail.

The fighting power of Her Majesty's Armed Forces is composed of three parts. First, there is the physical component; that is, the quantity and quality of the hardware, for which of course the Minister is responsible. I am sure that she works tirelessly to obtain the best solution. Secondly, there is the conceptual component; that is, the strategy, tactics and planning that are developed in order to fight smart, as it were. Finally, and most importantly, there is the moral component; that is, the military ethos, of which so much has been said today. The military ethos cannot be rapidly changed for "hot" operations. The ethos of today is what one has to go to war with, a point made by the noble and gallant Lord, Lord Inge. History is littered with examples of armies that were both physically and conceptually superior to their opponents, but were nevertheless defeated by opponents that attached greater importance to the moral component of fighting power.

In conclusion, soldiers are not merely civilians in uniform. They form a distinctive group within our society that needs a completely different ethos and legal system if it is to succeed. No other group of our society is required to be prepared to kill and destroy others, in wider circumstances than immediate self-defence, and knowing that they may well take a significant proportion of casualties themselves in doing so. If UK governments are not prepared to sustain the moral component of fighting power and recognise the need for servicemen to operate under a more robust legal system, they must prepare themselves to lose battles and have unsuccessful military campaigns. I do not share the rosy view so well articulated by the noble Lord, Lord Wallace of Saltaire. If my worst fears were realised, I do not believe that the British public, in hindsight--that perfectly developed art--would accept that the European Convention on Human Rights should ever have been interpreted in a way that damaged our military capability.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence 5:10 pm, 29th November 1999

My Lords, we have had a useful and constructive Second Reading debate on the Bill. We have had many useful insights into some of the issues that are likely to be debated in Committee. I had anticipated that the quality of attention brought to the matter by noble Lords would more than make up for any shortfall in the number of those contributing to the debate. I am pleased to say that that has indeed been the case and I am extremely grateful to all noble Lords for bringing their wisdom and experience to bear on our discussions. Like the noble Lord, Lord Burnham, I am impressed by the array of not only noble, but noble and gallant colleagues who have given us the benefit of their thoughts. Your Lordships may be assured that I have listened very carefully to the arguments that have been put today.

I disagreed quite fundamentally with the noble Earl, Lord Attlee, on one point in his contribution. The noble Earl commented that the British public believes that the effectiveness of our Armed Forces somehow relies on their tanks, aircraft and ships. I really do not think that the British public is that naive. It is well understood that the question of discipline in the Armed Forces is absolutely crucial to the effectiveness of those forces. Perhaps I may say that the argument put with such characteristic succinctness by the noble Lord, Lord Chalfont, when he said that the heart of this debate is the balance between justice and discipline, is the key issue here. We shall seek to strike the right balance between what on the one hand is right for individuals, and on the other hand does not compromise the effectiveness of the Armed Forces. Furthermore, I thank the noble Lord, Lord Renton, for having so clearly brought that most important point to our attention.

First, I shall address some of the detailed points that have been raised by noble Lords before returning, towards the end of my remarks, to what I believe is the essential point on the role of commanding officers and others. The noble Lord, Lord Burnham, opened by asking whether we really need the legislation before us. I have to say to the noble Lord that we do need it to amend the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. Primary legislation is required because no powers for secondary legislation are provided in those measures.

The noble Lord also raised the question of the European Convention on Human Rights and whether we should again examine the possibility of derogations from that convention. That point was also addressed by the noble Lord, Lord Vivian. Noble Lords will be aware that the United Kingdom ratified the European Convention on Human Rights in 1951 without derogations from the convention itself. We do not believe that any derogations are necessary. It is important to remember that derogations would require renegotiation of the convention and that would need the agreement of all parties to the convention. The Government do not believe that there is a case for that. We believe that members of the Armed Forces are as entitled as all other United Kingdom citizens to the protection of their fundamental human rights through the law. However, that does not, of course, mean that those rights should be allowed to jeopardise the operational effectiveness of the Armed Forces, or indeed that they would so jeopardise their operational effectiveness.

Photo of Lord Burnham Lord Burnham Conservative

My Lords, I thank the noble Baroness for giving way. In the discussions on the Human Rights Act, the noble and learned Lord the Lord Chancellor broadly hinted that such derogations might be possible. Can the noble Baroness comment on that?

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence

My Lords, if we take into account what we are trying to achieve in the Bill before us, we do not believe that that will be necessary. I should like to develop the point a little. The noble Lords, Lord Burnham and Lord Wallace of Saltaire, asked whether this would be the end of what we must do in terms of Armed Forces discipline in order to comply with the ECHR. I believe that there is still a question to be answered here. We have identified the main areas for concern, but we are continuing to examine our legislation and procedures. Should we need further legislation, it is hoped that remedial action will be taken in the next five-yearly Armed Forces Bill, due to be introduced in the next Session. However, for the moment we do not believe that any derogations are necessary.

The noble Lord, Lord Burnham, and the noble and gallant Lord, Lord Carver, also drew the attention of the House to the difficulties raised in terms of military discipline over issues of time and distance. Under the new legislation the commanding officer will remain closely involved with the pre-trial custody arrangements. Furthermore, he will need to be personally satisfied that the loss of liberty is justified following strict and limited criteria. Thereafter, the commanding officer will be required to take every reasonable measure to ensure that the suspect is seen by a judicial officer at the earliest possible opportunity. Obviously that will be subject to the exigencies of the service, but it should take place within prescribed time limits. For that reason, circumstances such as location, operational deployment and accessibility will determine how the suspect is brought before the judicial officer. Each case will be considered separately.

For example, if the case commences in barracks in the United Kingdom it should be relatively straightforward to arrange a personal hearing with a judicial officer, but if it takes place on operations in the Balkans, it may be--as it says in the Explanatory Notes to the Bill--that a video link is the only practical solution. We shall be looking at the circumstances on a case-by-case basis.

The noble Lord, Lord Wallace of Saltaire, raised the specific issue of homosexuality and the Armed Forces. The noble Lord may know that an urgent review is being undertaken by the MoD of our policy on homosexuality in the services and I understand that recommendations will be put to Ministers as soon as possible. However, the key point here is that if there is to be any change in policy, that will not require any change in the law. The issue is therefore not relevant either to this legislation or to any other possible legislation.

A number of noble Lords, including the noble Lord, Lord Burnham, and in particular the noble and gallant Lords, Lord Bramall and Lord Inge, raised questions about costs arising from the Bill. I should say that I was rather expecting those words from the noble and gallant Lord, Lord Bramall, who has written a detailed letter to me, to which he referred in his contribution to the debate. I hope to give him a little comfort in an exchange of correspondence shortly.

The estimated annual cost of implementing the changes proposed in the Bill will be about £6.5 million. As noble Lords have rightly suggested, those costs will arise from the establishment of a summary appeal court and the other new arrangements. The majority of the costs will arise from the need for additional lawyers, investigators and other staff to administer the new procedures. These will also include travel and subsistence costs, fees, witnesses' expenses and so forth. Obviously, the costs will absorb an appreciable part of the Armed Forces' legal aid scheme. The noble Lord, Lord Chalfont, asked specifically how these costs would be met. I am sure that the noble Lord will be sad to hear that the costs will fall to the MoD. However, they will be absorbed across a wide range of budgetary areas, each of which will manage their costs in terms of their overall priorities.

The noble Lord, Lord Vivian, also asked whether the measures in the Bill could be introduced by 1st October 2000. I can assure the House that it is proposed that the new system will be put in place by that date. It is important to point out to noble Lords that the Government believe that the measures outlined here are improvements to the current system. We would like to see them put in place sooner rather than later.

Any system of discipline that is to command the respect of the people to whom it applies must be capable of evolution. The changes that we propose to introduce here will ensure that the disciplinary system will remain in step with the recognition of individuals' rights and freedoms. Of course costs are important, but we must ask ourselves questions about the cost of upholding a serviceman or service woman's civil rights. I believe that that is an important point. The noble Earl, Lord Attlee, said it was a pity that there were not more noble Lords present to make that point. I strongly agree. It has been addressed by the noble Lord, Lord Wallace, and myself, but there is a strong argument which, perhaps for natural reasons, has not been fully addressed in today's debate.

The noble and gallant Lord, Lord Carver, concentrated his remarks on the summary appeal courts. I was asked why the Government have decided that offering the right to elect for trial by court martial is not sufficient to meet our needs in ECHR terms. The new system that we propose provides a further check which will enable an accused person to make a free choice as to the mode of trial, knowing that he will always be able to face an ECHR-compliant tribunal.

It is arguable that the present arrangements, which were drawn up with the convention in mind, rely too heavily on the individual creating a situation that is compatible with the convention. It depends on his or her choice as to whether he or she is tried by a compliant court. I understand that that was thought sufficient when the Armed Forces Act 1996 was being prepared. Our legal advice is that it is now considered that a right of appeal is also necessary to make the procedures associated with summary dealings compatible with the convention. So I am afraid that, for those who have raised the question of whether the summary appeal court is necessary, the answer is: yes, in terms of the evolving thinking on the matter since 1996, that is indeed the advice.

The overwhelming burden of your Lordships' remarks has been on the question of the impact of the proposals on the powers of the commanding officer. Questions were raised by the noble Lord, Lord Burnham, the noble Earl, Lord Attlee, the noble and gallant Lords, Lord Inge and Lord Bramall, and the noble Lord, Lord Vivian. The key to this legislation has to be the maintenance of the powers of the commanding officer. Central to the commanding officer's authority is his or her ability to exercise discipline. There is no argument between us on that point. The argument relates to whether or not the Government's proposals undermine that authority.

Perhaps I may remind the noble Lord, Lord Burnham, that the changes ensure that the commanding officer will continue to be able to administer discipline summarily. The changes enacted in 1996 opened up the possibility of many more courts martial. Individuals were given a much wider right to choose the way in which they were dealt with.

I also assure the noble and gallant Lord, Lord Bramall, that such statistics as we have indicate that in only a handful of cases do the accused elect to be tried by courts-martial. That seems to suggest that the commanding officer's powers to deal with cases summarily are still widely understood and respected, as was indicated by the noble Lord, Lord Vivian. They are possibly even preferred by some of the accused. For both the service and the individual, it is a means of ensuring that minor matters do not become unduly protracted, as many noble Lords indicated. We are confident that a right of appeal will not undermine that, any more than the existing right of appeal from courts martial has undermined the discipline system as a whole, providing that the new right of appeal will enhance the fairness of the system in the way that the Government believe are demanded by the dictates of simple justice. Conversely, not to provide a right of appeal would be to continue with arrangements that may not be compatible with the convention. That would allow the possibility of a very real challenge to the powers of the commanding officer, one which I imagine we should all wish to avoid if possible.

The noble and gallant Lords, Lord Bramall and Lord Craig of Radley, also raised the question of whether the Bill was breaking fundamentally new ground. I do not believe that that is the case. The legislation is not being forced upon us. It is clear that significant changes to the service discipline system and the Armed Forces Act 1996 addressed concerns about compatibility with the human rights convention even at that time.

We in this House agreed to ratify the European Convention on Human Rights. We agree with Parliament's decision to incorporate the main provisions of the convention in our domestic law. Therefore, I do not believe that we are having anything forced upon us. We are merely evolving the discipline Acts in order to comply with decisions that we have taken. We should do well to listen carefully to the wise words of the noble and gallant Lord, Lord Carver, regarding what might happen were we not to act.

There is another enormously important point. I say this particularly to noble and gallant Lords who have spoken. The Chiefs of Staff have been fully consulted on the changes and endorse the need for them. They have been keen to see the legislation brought forward as soon as possible. I sensed an implication that this was being done in the teeth of opposition from those in the military who know better. That is not the case.

The maintenance of morale was touched upon by the noble Earl, Lord Attlee. Of course it is vital to the services. The Government understand that the distinctive ethos of the Armed Forces, of which the noble Earl spoke so eloquently, plays an important role. Like the noble Lord, Lord Wallace of Saltaire, we have consulted those who know a great deal about this matter. I fully accept that noble and gallant Lords have done the same. There has been no suggestion from within the services that either the morale or the ethos of the Armed Forces will be adversely affected by these procedural changes. The Government do not believe that either the ethos or the morale of the services is quite that fragile.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, I am grateful to the noble Baroness for giving way. Will she explain the Government's thinking in relation to Clause 12 of the Bill, which provides that, in the event of election for court martial, the court martial may not impose a more severe sentence than that available to the commanding officer? If, as I believe the Minister would agree, it is desirable that an accused serviceman or woman should prefer to be tried by the commanding officer, is it not a mistake to depart from the civilian rule that the higher court can impose a higher sentence than that available to the court of summary jurisdiction?

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence

My Lords, I heard with great interest the point made by the noble and learned Lord in his earlier intervention. This issue is about the balance referred to by the noble Lord, Lord Renton, in his brief intervention. We believe that the clause is compatible with the ECHR; but at the same time, we wish to see it compatible in such a way that it upholds the authority of the commanding officer. As I said at the beginning of my remarks, there has to be a balance throughout between, on the one hand, justice to individuals and, on the other, the discipline of the Armed Forces. The Government believe that the clause strikes that balance in a proper and adequate way.

Photo of Lord Renton Lord Renton Conservative

My Lords, perhaps the noble Baroness will allow me to intervene. I hope that she did not misunderstand my remarks. If she did, it is probably my fault for not expressing myself clearly enough. I was not suggesting that where there is a conflict between discipline and justice, or between human rights and any other provision of law, the Bill should do anything other than maintain discipline, especially for time of war.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence

My Lords, the noble Lord was admirably clear in his remarks. He left the House in no doubt that his judgment was as he has just reaffirmed it. My point in mentioning the noble Lord's intervention was that I thought it crystallised absolutely the argument about the Bill; namely, whether we have struck the right balance between justice to individuals on the one hand and Armed Forces discipline on the other. The argument that he raised crystallised the point, although we might have rather different views as to whether or not the legislation meets the point. I believe it does. Perhaps the noble Lord will take a different view, but during the Committee stage I hope I may be able to persuade him a little more to my way of thinking.

From these Benches we appreciate that there are those who fear that any change to service discipline procedures will undermine the military ethos and discipline. I suspect that the issue arises every time there is a change to military ethos and discipline. However, I assure the House that we do not believe that that is so. Similar arguments could have been put forward in 1996 over Armed Forces discipline when the noble Earl, Lord Howe, commented on the test of the discipline system for what we must remember are volunteer Armed Forces in a free society. He said that it was to get the balance right between rights and duties. The noble Earl warned then against complacency and urged the need for a constant watch on discipline.

The noble Earl also said at the time that the absence of the right of appeal against courts martial sentences was an unnecessary limitation on the rights of servicemen and women. That is the view we take as to the need for the present changes. The view was supported by the Front Bench opposite in 1996.

I am sure that, as has been the case with previous measures of this nature, the Bill will result in detailed thought as to how we can deal with the interesting issues which have been brought up this afternoon and how much further we can improve the system of administering discipline. Yes, it is part of the Government's human rights agenda, but it is no part of the Government's human rights agenda to undermine Armed Forces discipline. The Government fully recognise that discipline is vital in the pursuance not only of our defence policy but ultimately of our foreign policy.

Yet underpinning our consideration of what needs to be done has been an overriding concern and awareness which has run like a thread throughout our debate today. As the noble Lord, Lord Chalfont, said, the Armed Forces are not just another job. They have a unique role, a point made passionately by the noble Earl, Lord Attlee. The men and women who serve in them have unique responsibilities. We expect a great deal of them. Your Lordships know as well as I do how admirably they fulfil those expectations. The ability to maintain effective discipline is a vital ingredient in our Armed Forces' success. It is the accumulation of generations of hard-won experience. I can assure your Lordships that this Government will not cast that legacy aside.

I commend the Bill to the House and am confident that it will help to preserve that which all noble Lords hold dear. I ask your Lordships to give it a Second Reading.

Photo of Lord Chalfont Lord Chalfont Crossbench

My Lords, before the noble Baroness sits down, would she deal with one point which was brought up during the debate? It concerns the provision in Clause 18 of the Bill not only for an accused to have recourse to appeal to the court, but to have 21 days in which to do it. Does the Minister agree that that is a long period? Three weeks with that hanging around is bound to affect the authority of the commanding officer.

Specifically, will the noble Baroness undertake to examine that closely when we come to the Committee stage of the Bill?

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence

My Lords, I undertake to look closely at all the points raised by noble Lords and noble and gallant Lords this afternoon. The noble Lord is quite right, the clause imposes a time limit of 21 days. As I said in relation to other time limits, we do not want to run up to that limit; of course we want the matter dealt with as expeditiously as possible. I shall certainly look at the point.

On Question, Bill read a second time, and committed to a Committee of the Whole House.