Armed Forces Discipline Bill [H.L.]

Part of the debate – in the House of Lords at 3:33 pm on 29th November 1999.

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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.