Armed Forces Discipline Bill [H.L.]

Part of the debate – in the House of Lords at 4:14 pm on 29th November 1999.

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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?