Armed Forces Discipline Bill [H.L.]

Part of the debate – 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.)