Armed Forces Discipline Bill [H.L.]

Part of the debate – in the House of Lords at 4:28 pm on 29th November 1999.

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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.