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".