Armed Forces Discipline Bill [H.L.]

Part of the debate – in the House of Lords at 4:38 pm on 29th November 1999.

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Photo of Lord Chalfont Lord Chalfont Crossbench 4:38 pm, 29th November 1999

My Lords, it is perhaps not surprising that at this time of day when so many noble and noble and gallant Lords have spoken, there is not much left to say. However, I recall someone saying during the passage of the House of Lords Bill that everything that needed to be said on that subject had already been said, but that not everyone had yet said it. I hope therefore that your Lordships will forgive me if I add a few comments to those points which have already been made by noble and noble and gallant Lords.

Before I do, I shall point out something which may be of interest to political historians. I mention this more mischievously than maliciously. Throughout the debate the number of Chiefs of Defence Staff in the House has outnumbered the population on the government Benches. I ask noble Lords to draw no especial conclusion from that; I mention it as a point of historical interest.

I begin by picking up something that the Minister mentioned in her opening remarks about the need to bring the Armed Forces within the general ambit of this kind of convention and this kind of legislation. I hope that the Minister and the Government will bear in mind that the Armed Forces are not like the rest of society. Officers and soldiers in the Armed Forces are not like lawyers, politicians or shopkeepers; they have a different culture and a different ethos which need to be fully respected. The ethos comes from one simple fact: soldiers, sailors and airmen have an unlimited liability; they put their lives on the line in the performance of their daily duties. For that reason, the ethos and culture of the Armed Forces should be taken very seriously. It is not self-evident that the principles of human rights and justice which apply to the rest of society necessarily should apply to the Armed Forces.

In that context, perhaps I may mention something which the noble and learned Lord the Lord Chancellor said in the debate on the Human Rights Bill in 1998. This has not yet been mentioned. He said:

"The Secretary of State for Defence takes the view that the Bill raises no issues which are special to the Armed Forces".

It was possibly on this advice that the noble and learned Lord the Lord Chancellor went on to say that the Human Rights Bill,

"poses no threat to the effectiveness of the Armed Forces".--[Official Report, 5/2/98; col. 768.]

I suggest that that is at least a matter of opinion. In my opinion, the Bill poses a considerable threat to the effectiveness of the Armed Forces.

I underline what has been said already about Clauses 11 and 12 and Clauses 14 to 25 of the Bill. As far as concerns Clauses 11 and 12, your Lordships have been told that it used to be the case that when a soldier, sailor or airman was brought up on a charge in front of his or her commanding officer, the commanding officer heard all the evidence and arrived at his conclusion as to guilt or innocence and then said to the accused "Will you take my award, will you take my punishment, or would you rather the matter went to a court martial?" Now, under the new dispensation, the accused will have the right to elect for trial by court martial before the commanding officer has heard the evidence and reached his conclusion. This would seem to mark the beginning of the erosion and the status of the commanding officer.

That is further undermined in Clauses 14 to 25 by the setting up of the summary appeal courts. As your Lordships will know from the Bill, the summary appeal courts will consist of a judge advocate and two officers not connected with the chain of command. In choosing whether to take a summary process of trial by the commanding officer, the accused now has 21 days in which to decide whether he or she will go to the summary appeal court.

The first point I should like to make about that is that the delay will undermine the justice process in the Armed Forces. One of the great things about the administration of justice and discipline in the Armed Forces--in the Army in my context--has been that justice is done quickly and is seen to be done quickly. Any delay is bound to be bad for morale and bad for the perception which a soldier, sailor or airman has of the efficiency and discipline of the unit in which he or she is serving.

There is no need for me to go further because the points against the Bill have been forcefully made already. It has been pointed out that we are now administering a new layer of bureaucracy across the top of the whole of the proceedings of Armed Forces discipline. That is self-evident from the provisions of the Bill. With that, obviously, goes delay. It is inevitable that justice in the Armed Forces will not be quick, will not be summary and will not be seen to be fair and expeditious. There will be delays, and these will have their effect on morale.

Finally, there is the matter of cost, a point which has been made very forcefully by a number of noble and gallant Lords. The summary appeal courts are to have not only extra officers assigned to them, but a judge advocate also. As noble Lords will see from the Bill, these judge advocates must have had at least five years experience as qualified lawyers. Such animals do not come cheaply; one cannot get qualified lawyers of five years' experience to come into the Armed Forces without paying them, and paying them very highly.

It may not be a matter for the Ministry of Defence to decide, but, in that context, I should like to know what the Ministry of Defence understands about the defraying of the obviously very considerable extra costs which will come about as a result of the Bill. Are these costs to be borne by the defence vote? If so, as noble and gallant Lords have already said, an already overstretched budget, which caters for already overstretched forces, will become further overstretched, to the great detriment of the Armed Forces and the effectiveness of our services.

Having said what I think about the Bill, I conclude by saying that the Ministry of Defence has made the very best of a bad job. As the noble and gallant Lord, Lord Carver, said, it has acted quickly and it has produced something which, within the constraints of the requirements of the Bill, is comprehensive and clear.

There may be those who, like me, believe that not all of us--and certainly not all of the Armed Forces--should automatically be subject to the provisions of conventions such as the European Convention on Human Rights, or even the Human Rights Act 1998. However, at the moment, it is not profitable or productive to start talking about derogation from the European Convention on Human Rights or from the Human Rights Act. It is now fairly clear that the Armed Forces have to be brought within those constraints. As I said, the Ministry of Defence has gone about this in a constructive way. It is a duty it would perhaps not have chosen had this been a matter entirely for the Ministry of Defence. But it has approached the matter in a constructive way and we should now concentrate on some of the bad, weak points which have been underlined, such as the 21-day period in the course of an appeal to the summary court of appeal, and the circumstances in which an accused soldier, sailor or airman may elect for trial by court martial rather than for trial by his or her commanding officer.

I suggest that we should now move forward with the Second Reading and--if it is not too much of a military analogy--hold our fire until the Committee stage of the Bill.