Armed Forces Discipline Bill [H.L.]

Part of the debate – in the House of Lords at 4:52 pm on 29th November 1999.

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Photo of Earl Attlee Earl Attlee Conservative 4:52 pm, 29th November 1999

My Lords, before I speak to the Bill, I remind the House that I have an interest as I am a serving TA officer and I have delegated powers of summary jurisdiction. Noble Lords should be aware that I would make the same speech on whatever Bench I happened to be sitting. I apologise in advance if I test your Lordships' patience. I should like to join with the Minister in her fulsome praise of our Armed Forces. From my very modest experience, I can agree with every word that she said about their activities.

The Minister has marketed the Bill as being technical and one which we have no choice but to implement. However, it is anything but technical or intrinsically beneficial, as she put it. It forms part of the process of salami-slicing our military capability in a variety of ways, each little stage appearing to be perfectly reasonable. I am sure that the Minister understands her brief on the Bill, and in detail. But when she introduced the Bill I was not sure whether she understood the nature of our military ethos and the need for robust service discipline arrangements. However, she did cover her points in her usual highly effective manner.

Moreover, the public has little understanding or experience of military matters, and that is reflected in the composition of another place. The public knows that we have the Challenger 2 main battle tank, RAF Tornadoes, HMS "Invincible" with her Harriers and the Special Air Service, and it believes that this combination will defeat any opposition. All noble Lords who have spoken know that that is not the case and that military operations can go horribly wrong. The worst case scenario is that civilians will be called up for compulsory service, as happened quite properly during the last war.

Although we have a galaxy of talent and expertise, it is unfortunate, to say the least, that no one outside the "military club" has put their name down to speak to the debate. I am sure that the debate would have been less one-sided and better informed if some noble Lords with interests in human rights had been able to speak to support the Minister. I am grateful to the noble Lord, Lord Wallace of Saltaire, as he has provided some comfort to the Minister. No doubt the Minister and others outside who listen to our debate will feel that this was the officer class--and at a stratospheric level at that--defending its position at the expense of junior ranks.

In my case, I spent 18 years as a junior rank in the TA. In fact, the highest rank I achieved was corporal. I enjoyed myself enormously, worked closely with regular soldiers and saw no need to seek an early commission. My military role models were regular NCOs. As soldiers, we certainly talked about the disciplinary arrangements and we all agreed that one could not "beat the system", despite the advice of the barrack room lawyers; and we were content with that situation. But, to put it bluntly, the Army is a hard taskmaster. Indeed, I found myself on the receiving end of summary jurisdiction. Once I lost my camp bed and later on I lost my ID card. I was also a prosecution witness in one minor case. It was interesting to note that afterwards, when it was all over, we all shook hands and adjourned to the bar after final parade. The whole matter was over and finished within seven days. The new arrangements inevitably will introduce considerable delays and that will always be undesirable.

I am now the OC (the officer commanding)--a humble field officer--and I have to administer summary jurisdiction on behalf of my commanding officer, most recently last Tuesday. It is not a pleasant duty as it is more of a disciplinary procedure than a perfectly developed system of justice. One is punishing one's own people. Sometimes it is even necessary to discipline first-rate soldiers, especially for what I would call technical offences such as loss of ID cards. However, if I were either to abuse my powers and act unjustly, or if I did not have the moral courage to exercise them when required, I should soon lose the trust and confidence of the men under my command and morale would suffer badly. The same would apply to any officer, regular or TA, in a command position.

The Bill impinges on two aspects of military law. As implied by the Minister and others, the court-martial system is reserved for the more serious offences that could attract substantial periods of detention, prison, heavy fines or other significant penalties. We know also that a solider can elect to go for court martial rather than accept summary jurisdiction. I believe firmly that the court-martial system should be as well developed a system of justice as possible, while at the same time being militarily effective.

I have served as a member of a few courts martial and it is a very dry and clinical business. Even so, I was struck by the way in which the accused, who is still innocent, is marched in without belt or head gear and under escort. It appeared to me to be degrading and I could not see how it improved the administration of justice. The Bill might not be an ideal vehicle but we shall look at that point during its passage and at the time of the quinquennial review.

During the winter of 1997-98, I had the honour to serve with the Regular Army in Bosnia. However, it was not what I would call a "hot" operation, so I have never experienced the challenges that other noble Lords have faced. Morale in camp was nearly always high, but we suffered one incident of misconduct which had the potential to be very serious indeed. It would not be helpful to describe exactly what went wrong but the full power of the commanding officer was required to deal with the matter and to apply an appropriate sentence.

On the day on which the commanding officer dealt with the charges, the mood in camp was understandably sombre. The soldiers each received a very heavy fine, but I have to say that no one else was going to make the same mistake. The essential point to note is that the next day morale had almost completely recovered and the whole affair had lasted less than seven days--from start to finish. Thus both discipline and morale were maintained at the same time. It is the current system that made that possible. It is important to remember that in a service unit the witnesses will meet the accused, his friends and colleagues on a daily basis. Contrast the service system with how long it would take to deal with a drink-drive offence at home.

Turning to the Bill itself, Clauses 1 to 8 are relevant only to very serious cases and the new arrangements are welcome apart from the fact that they are unworkable for operations. From my experience, they would be very challenging for our relatively stable peacekeeping operations in the Balkans. What would happen if the operation or even the campaign was not going very well? A unit may be trapped behind enemy lines or just very isolated. What would happen about a small detachment on South Georgia in winter? The Explanatory Notes pray in aid video links. The Minister's faith in our G6 communications capability at unit level is touching. It would be nice if for operations we had a secure and efficient means of electronically transmitting reports and returns data from sub-units up the chain of command. We shall be tabling suitable amendments to relax the new arrangements for operations in order to avoid the risk of servicemen having to be detained without legal authority.

Clauses 14 to 25 are, to an extent, consequential on later clauses giving the right of appeal from summary jurisdiction. As explained by the Minister, they give an earlier right of election for court martial, but I do not think that is helpful. For instance, the commanding officer may want to deal with the matter summarily and hear the evidence, possibly because of a local legal requirement, but he may be minded to dismiss the charges. That often happens with road traffic accidents, especially serious ones and ones overseas. Of course, the new arrangements fly in the face of government policy regarding restrictions on the civilian's right to elect for full trial in cases which are triable either way. Under the new arrangements, the soldier could elect for court martial before the commanding officer had an opportunity formally to dismiss the charges even though he was minded to do so in the first place.

Currently, a serviceman can be more severely dealt with by court martial if he elects for it. Under the Bill, he can receive no greater punishment than the commanding officer can give so there is no disincentive to elect court martial; and of course that is the Government's intention, as the Minister explained. If a soldier absolutely insisted on election for court martial for a minor offence, such as loss of ID card, it is unlikely that it would ever happen due to the backlog of more serious cases.

Clauses 14 to 25 are the most objectionable in the Bill as they dilute the authority of the commanding officer and his sub-unit commanders, as noted by many noble Lords. In theory, they confer greater rights on the serviceman; but in practice they will disadvantage him. Take, for example, the Balkans situation that I have illustrated. The commanding officer had to maintain discipline and morale or else risk compromising the success of the operation. If, after being disciplined, one of the soldiers decided not to take it on the chin and spent the next three weeks telling the whole world that it did not matter as he would appeal the sentence, the commanding officer would have failed in his mission. I submit that in the future the commanding officer in that situation would simply remand the soldier for court martial and have the soldier posted back to depot in the UK. The case in question would be easy to prove in a cold, stark court martial centre in the UK and the soldier could expect two months' detention in the military correction centre at Colchester and with no pay. Furthermore, the soldier's career would be ruined or at least held back for two years. Put in that context, the actual outcome seems quite lenient.

I have another worry--I put it no stronger than that. The worry is this: if NCOs find out that their commanding officer or officer commanding cannot effectively operate a disciplinary system, they will inevitably resort to illegal alternatives. There will not be the court martial option for them. The noble and gallant Lord, Lord Bramall, and others have touched on that point.

Clause 9 would allow a deserter to obtain bail after he was apprehended. Noble Lords will easily be able to imagine the circumstances where that could be deeply damaging to the morale of the unit preparing for operations. I wonder whether the Minister can tell the House in what circumstances she thinks it would be appropriate or necessary for the magistrate to grant bail.

The fighting power of Her Majesty's Armed Forces is composed of three parts. First, there is the physical component; that is, the quantity and quality of the hardware, for which of course the Minister is responsible. I am sure that she works tirelessly to obtain the best solution. Secondly, there is the conceptual component; that is, the strategy, tactics and planning that are developed in order to fight smart, as it were. Finally, and most importantly, there is the moral component; that is, the military ethos, of which so much has been said today. The military ethos cannot be rapidly changed for "hot" operations. The ethos of today is what one has to go to war with, a point made by the noble and gallant Lord, Lord Inge. History is littered with examples of armies that were both physically and conceptually superior to their opponents, but were nevertheless defeated by opponents that attached greater importance to the moral component of fighting power.

In conclusion, soldiers are not merely civilians in uniform. They form a distinctive group within our society that needs a completely different ethos and legal system if it is to succeed. No other group of our society is required to be prepared to kill and destroy others, in wider circumstances than immediate self-defence, and knowing that they may well take a significant proportion of casualties themselves in doing so. If UK governments are not prepared to sustain the moral component of fighting power and recognise the need for servicemen to operate under a more robust legal system, they must prepare themselves to lose battles and have unsuccessful military campaigns. I do not share the rosy view so well articulated by the noble Lord, Lord Wallace of Saltaire. If my worst fears were realised, I do not believe that the British public, in hindsight--that perfectly developed art--would accept that the European Convention on Human Rights should ever have been interpreted in a way that damaged our military capability.