Armed Forces Discipline Bill [H.L.]

– in the House of Lords at 11:34 am on 16 December 1999.

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Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence 11:34, 16 December 1999

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(Baroness Symons of Vernham Dean.)

On Question, Motion agreed to.

House in Committee accordingly.


Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

moved Amendment No. 1:

Before Clause 1, insert the following new clause--

:TITLE3: ("Consolidated text of Acts


. On the day on which this Act comes into force, the Secretary of State shall lay before Parliament a copy of the consolidated text of the following Acts--

(a) Army Act 1955,

(b) Air Force Act 1955, and

(c) Naval Discipline Act 1957.").

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

In moving the amendment, which I hope will not take long, I realise that I am sailing what is a well-entrenched pillar of our constitution; namely, that our legislation should not be easily understood.

It has been a matter of increasing regret and concern to me over the years that I have spent in Parliament that Parliament and its masters should give so little thought to the difficulties which confront those who have to handle bulky and very often incomprehensible legislation. It is poured out in huge quantities by successive governments; often it is of a very low quality; and it is handed to Parliament for a kind of churning process to bring it to some kind of handleable state.

I realise that this is not the moment to dilate on the complexity or the incomprehensibility of our tax laws and the host of regulations which flow from them. I am concerned with the simple point that those in the Armed Forces who have to handle this legislation should have it presented to them in a form at least as acceptable as possible. I am not now talking about someone's ability to understand it--or the possibility of it being understood by anyone--but about the number of documents which those responsible for implementing the law have in front of them when they are trying to find out what the position is. The amendment seeks slightly to reduce the difficulties, in that it would make it possible for those concerned with the legislation to have in front of them not two versions of an Act but one.

I am obliged to the Minister for kindly writing to me on this subject. Perhaps I may have her permission to quote one short paragraph of her letter. I am not entirely sure what it means. I have a slight suspicion that maybe it is not her own lucid drafting. It states:

"This production of consolidated texts will be repeated next year in order to reflect any changes in the meantime, including those arising from the Armed Forces Discipline Bill itself. This will be because of the introduction in the next session of the quinquennial Armed Forces Bill".

Would the noble Baroness be kind enough to enlighten the House on what exactly is meant by that paragraph?

Perhaps I may briefly mention the report of the Select Committee on Delegated Powers and Deregulation. One sentence on page 3 of the report indicates at least the possibility of very considerable complexity becoming a permanent ingredient of this subject. The sentence reads as follows:

"The rules will be part of a framework consisting of existing legislation and subordinate legislation made under it. The whole will have to be compatible with Convention rights under the Human Rights Act 1988".

I believe that there are grounds for concern here and I cherish the hope that this modest amendment will be accepted by the Government. As I said at the beginning of my remarks, I realise that some quarters--I hope that I should not include the noble Baroness in this--regard it as a dangerous attack upon the principle of the constitution, which requires legislation in all its forms to be as complex and incomprehensible as possible. I beg to move.

Photo of Lord Molyneaux of Killead Lord Molyneaux of Killead Crossbench

The amendment tabled by the noble Lord, Lord Peyton, addresses the longer term, once the legislation has been implemented. However, in his remarks and in the words he quoted from the letter of the noble Baroness, it appears that some thought has been given as regards the short term. It is upon that aspect of the matter that I should like to say a few words.

Perhaps I may give an example. If a base established in the United Kingdom is occupied by two formations of Her Majesty's Forces and the principle of "jointery" has already been implemented, what would be the position of a commanding officer of one of those services when sentencing one of his own men? Would it be possible for the accused, upon conviction, to appeal to the base commander as a second step? The commander may--indeed, probably would--be from another service and operating under an entirely different Act.

If the accused then appeals to what is referred to in the Bill as a judicial officer appointed by the Judge Advocate General, will both of those legal figures be conversant with the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957? In other words, will there be "jointery" in the legal world to match "jointery" in the Armed Forces?

Photo of Lord Renton Lord Renton Conservative

I wish most warmly to support the amendment of my noble friend Lord Peyton of Yeovil, which I consider to be important. The three Acts referred to, which are listed in the Long Title of the Bill, in any case overlap to a great extent. If they were to be consolidated, the statute book, which is getting longer and longer, would be shortened. We should do all we can to enact matters in a more concise way.

Furthermore, I am sure that no one will dispute the fact that over the past 60 years--perhaps a little longer--there has been a fortunate tendency for the three Armed Forces to draw closer together, not only in peace-time but also in war. That being the case, I should have thought that to have one discipline Act for all three Armed Forces would be a very great practical advantage.

Photo of Lord Elton Lord Elton Conservative

Will the noble Baroness consider a case that will soon arise, perhaps to illustrate her response to my noble friend Lord Renton? When the Tri-service College is established at Shrivenham, will the commandant of that college, who might be an airman, when he hears a case involving a seaman, apply to the offender the disciplinary procedures relevant to that service?

I apologise to noble Lords if I expressed that inelegantly. More plainly, the commanding officer will have men from other services under him. No doubt that already applies and there is already a convention as to which rules are to be used when the case is heard. However, it would be helpful if, when the noble Baroness replies to my noble friend, she could explain to those noble Lords who do not know, how the system works in a case of that sort.

Photo of Lord Craig of Radley Lord Craig of Radley Convenor of the Crossbench Peers

I wish to support the amendment tabled by the noble Lord, Lord Peyton. In my comments during the Second Reading debate, I expressed my unease about the very short time that would pass between the Bill before us receiving Royal Assent and 2nd October 2000, when the implications and practical detail of the legislation will need to be applied in reality in all three of the armed services. Any action that would assist those who will need to disseminate the required information and ensure that the law is followed properly is to be supported. I believe that the proposal contained in this amendment would do that.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

I wish wholly to support what my noble friend has proposed in his amendment. As I understand it, there is substantial disparity between the three service discipline Acts. Perhaps I may ask, therefore, whether, in order to consolidate, one would not first need to remove those substantial disparities. Would that not require further short legislation?

Photo of Lord Renton Lord Renton Conservative

With great respect to my noble friend, I should have thought there would be only an occasional clause that would need to be addressed as regards disparity. I agree that it would be necessary to deal with it, but I do not think that that would take up too much of any consolidation measure.

Photo of Lord Mackay of Drumadoon Lord Mackay of Drumadoon Judge

I, too, wish to support the amendment of my noble friend Lord Peyton. He referred to the principle that legislation should not be too easily understood. As a practising lawyer, I have some sympathy with that proposition. Therefore, to some extent it is with mixed emotions that I offer my support to my noble friend.

However, it is undoubtedly true that when one studies the Bill and searches for the existing law, it is not at all easy to find. Perhaps I may make one practical suggestion. Would it be possible for the Government and parliamentary counsel to draw down from their computerised statute law database a print of the relevant Acts in their present form and to make those available in the Library? That would assist noble Lords at later stages of the Bill. Several noble Lords will be aware that the Government plan to make all statute law presently in force available on the Internet, and that they hope to do that in the course of the next year. However, if for any reason that has not proved possible to achieve, perhaps the relevant Acts that refer to the Bill before us could be placed in the Library. That would be of great assistance.

In regard to when it would be sensible to consolidate, I incline to the view that it might be better to do that in the next Session; namely, after the new armed forces Bill heralded by the Minister during her speech at Second Reading has gone through your Lordships' House. I foresee that implementation of the Human Rights Act will bring forth problems other than those which the Bill seeks to address. While I believe that the Ministry of Defence are to be congratulated on facing up to the implications of that Act by bringing forward the Bill before us, the debate which took place at Second Reading made it clear that it will not be an easy exercise to reconcile all the different interests involved. I should like to propose--I hope that this will find favour with the Minister--that in the next Session, in tandem with the substantive Bill to alter the law, a consolidation Bill should move through its procedural stages so that the two Acts of Parliament would come into force, one immediately following the other.

Photo of Lord Annan Lord Annan Crossbench

I add my voice in support of the noble Lord, Lord Peyton. When dealing with a subject such as discipline, it is extremely important that the legislation should be clear. Whether or not we like it, attitudes to discipline have changed over the past 30 or 40 years. In my day as a don at Cambridge, if an undergraduate was sent down, he went down. Now, of course, he does not. He argues the case before a tribunal and then an appeal court to that tribunal. It is extremely important that anything to do with discipline should be crystal clear. I therefore support the noble Lord, Lord Peyton.

Photo of Lord Glenarthur Lord Glenarthur Conservative

I support the amendment moved by my noble friend Lord Peyton and I agree with the point made by my noble and learned friend Lord Mackay of Drumadoon. Over the years I have had experience of trying to get from the Library an up-to-date text of Acts that have been amended many times. I wonder whether the Minister can say how often statutes in force in respect of this matter are amended. When was the most recent amendment to statutes in force? Those of us who are not as familiar as my noble and learned friend Lord Mackay with getting their data over the Internet might still like to get the information from the Library. What delay is there in bringing these statutes up to date for easy reference?

Photo of Lord Burnham Lord Burnham Conservative

My noble and learned friend Lord Mackay of Drumadoon made an important point when he referred to the difficulty that he, as a lawyer, has in understanding legislation to do with the military. Members of the Committee on all sides have united in supporting my noble friend Lord Peyton, and I do the same. The Bill has an enormous number of amendments--not on a Greater London Authority Bill scale but an enormous number nevertheless. One of the major reasons is that virtually every amendment has had to be repeated two and even three times. Therefore, I ask the Minister to consult the draftsman, who will have nothing to do over Christmas, to see whether by the next stage of the Bill we can have a serious go at consolidating the Armed Forces discipline Acts. They are 40 years old. The European Convention on Human Rights, with which we are much concerned in the Bill, is 50 years old. We would make a nonsense of the matter if we let the Bill go through in the form in which it stands at the moment.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence

The noble Lord, Lord Peyton of Yeovil, has highlighted the difficulties encountered by anyone trying to read the three service discipline Acts. Since being enacted in the 1950s they have been very heavily amended and no one can claim that they are easy to follow. However, the Committee will know that it is the practice of departments introducing primary legislation that amends already heavily amended legislation to prepare updated texts of the existing legislation and place those in the Libraries and the Public Bill Offices of both Houses. That is an aid to Parliament's consideration of the amending legislation. On that basis, updated copies of the Army and the Air Force Acts 1955 and the Naval Discipline Act 1957 have been prepared and were recently placed in the Libraries of both Houses.

The Acts will be further amended if Parliament enacts the present legislation. In the next Session we expect to introduce the quinquennial armed services Bill. That Bill will cover a wide range of different issues. I am sure that Members of the Committee would not expect me to anticipate those in any detail at this stage. It follows that at around this time next year we will have prepared further updated texts on the discipline Acts and we will put those further updated texts on the discipline Acts in the Libraries of both Houses. I hope that that process is found to be of value. I am sure that many noble Lords still deal with matters, as I do myself, very much on a paper basis, but the updated texts are also available electronically.

We acknowledge that there has been a longstanding intention to consolidate the service discipline Acts. I strongly agree with a great deal of what the noble Lord, Lord Peyton, said about the need to consolidate the Acts. That point was made by a number of noble Lords. However, I would say that this is a task of a rather different order and one which has to produce a new baseline of service legislation. The Government are considering moving now to a tri-service discipline Act. I hope that that provides the assurance which was sought by the noble Lords, Lord Molyneaux, Lord Renton and Lord Burnham, and by the noble and learned Lord, Lord Mackay of Drumadoon. It is important to stress that that will be a major undertaking. We expect to receive advice. It will take some time for us to consider the best way forward but we must have a look at consolidating the Acts. Such a consolidation would supersede the current legislation.

I hope that I have been able to assure the Committee that we are addressing both the substance and the presentation of the issue. Both are important if people are properly to understand the discipline under which they operate as individuals in the armed services and if the rest of us are to understand the way in which the armed services operate. On the basis that updated, "cleaned up" texts, if I may put it that way, are available in both Houses, that they are available electronically, and that consideration will be given to consolidation of the Armed Forces discipline Acts, I hope that the noble Lord, Lord Peyton, will feel able to withdraw his amendment.

Photo of Lord Elton Lord Elton Conservative

We are in Committee and therefore I do not think I need apologise for coming back to this point or for speaking from a certain background of ignorance. What has concerned me about the exchanges--I refer to the point made by my noble and learned friend Lord Mackay of Drumadoon--is that we have been referring only to our own difficulty in dealing with the legislation. But where it matters is in the field. Officers--quite junior officers--will be expected to untangle this great web of legislation. They will be expected to know what to do and how to restrain or to keep in custody people from their own service, let alone of another. I would be much more comforted by news of how that difficulty is to be resolved.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence

I agree with the noble Lord, Lord Elton. It is important that those in the field, at whatever level, understand the discipline under which they are operating. There will need to be proper understanding within all three armed services of any changes brought about by the legislation. The services at all levels want to introduce the compliant disciplinary procedures in the Bill as soon as possible. Ideally, they would like the revised procedures introduced in the current legislative Session. I can tell the Committee that that is the firm recommendation of the chiefs of staff. If such legislation is to be enacted, of course it is then incumbent on the chiefs of staff and those who support them, and indeed the civilian administration, to ensure that the provisions are properly understood, not only by such people as your Lordships but also, as the noble Lord, Lord Elton, said, out in the field where it really matters.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative 12:00, 16 December 1999

I have no wish to quarrel with the noble Baroness. She listens with care and answers with courtesy and intelligence. What more could one ask of a Minister--except perhaps that she should utter the very simple words, "Yes, of course I accept this". She disappointed me in that rather important point.

First, I was sorry that the noble Lord, Lord Molyneaux, found it difficult to understand the purpose of my amendment. I thought it was so clear that I did not need to go into it in any detail. We wanted to avoid the unfortunate people who will have to handle the legislation being faced with too many documents, all of them complicated, at the same time.

I echo the point made by my noble friend Lord Elton. I am not in the least concerned with parliamentary convenience. Some of us are quite good at complaining. I am not very good at it. I am sure that I shall learn in time. We do our best to raise our voices every now and again when we are singularly ill treated by authority. At least we have a means of redress. The unfortunate commanding officer faced with the problem will have no such means of redress. He will simply be saddled with the various fragments of this indigestible lump. I hesitate to use the word "consumer" about anything so indigestible, but I have considerable sympathy with the ultimate user of the legislation. I invite the Government to show the same sympathy and understanding as are clearly felt by those who have spoken to the amendment. I am not sure that the noble Baroness's reference to the quinquennial Act took me too far down the road to understanding what will happen. I do not know exactly how that Act will help and whether it will meet the point that I raise.

Towards the end of her remarks, the noble Baroness used the phrase, "a major undertaking". I am not sure that I am all that sorry about asking the Government to carry out a major undertaking. If there were some more effective deterrence to governments before they put forward ill-thought-out and incomprehensible legislation I should be happier.

I am grateful to noble Lords who have taken part in the debate for their eloquent support on the simple but important point enshrined in the amendment. I am grateful to the noble Baroness for having gone as far as she has and in the way that she has. I still hope that she will consider the point again and chide her department a little. She might also remind her department that, after a long struggle, it is now a unified Ministry of Defence and that co-ordination is its business. Co-ordination is one of those "boss" words used by Ministers when they have nothing else to say; they say that their job is to "co-ordinate". There is one thing of which we can be certain: any time that anyone starts co-ordinating anything, whether it be road traffic or armed forces, they will encounter the objections of people who do not wish to be co-ordinated. Again and again, governments meekly surrender. I shall consider carefully whether to return to this point on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Burnham Lord Burnham Conservative

moved Amendment No. 2:

Before Clause 1, insert the following new clause--

:TITLE3: ("Active service exclusion


. Engagement under active service conditions on the part of a person to whom the provisions of this Act would otherwise apply shall constitute for the purposes of Article 15 of the European Convention on Human Rights 1951 and the Human Rights Act 1998 a state of public emergency in relation to that person.").

Photo of Lord Burnham Lord Burnham Conservative

It is interesting to note how the various parts of the Bill link together. Both my noble friend Lord Peyton and my noble friend Lord Elton spoke to this amendment. The amendment is grouped with Amendments Nos. 3 to 14 and 77. They fall into separate groups.

I must confess that I started off by looking at the Bill with regard to the difficulties of implementing it, if it is enacted, in the field. It is a problem. I am sorry that the noble Lord, Lord Annan, is not in his place. He seems to confuse undergraduates and soldiers. He seems to think that everything that can be applied to an undergraduate can be applied to a soldier, and vice versa.

There will be many occasions when it will not be possible for this legislation to be operated because of the nature of the service. At Second Reading, a number of speakers, including myself, referred to problems in the field. We shall come in due course to the question of video links, which is dealt with in a later amendment. I am sorry that my noble friend Lord Vivian is ill and is unable to be present. He and my noble friend Lord Attlee, as the most recent serving soldiers, have the best knowledge of what actually goes on.

My Amendment No. 77 makes it clear that in no way are we attempting to get out of applying justice in the way in which it is envisaged by the European Convention on Human Rights or the Human Rights Act. What concerns us in these amendments is the timing, and that it is just not possible to operate in the manner prescribed.

I shall be interested to hear what my noble friend Lord Campbell of Alloway has to say on the matter raised in Amendment No. 2. On the basis of the principle behind the amendment, he originally added his name to it before actually seeing it, and has since withdrawn his name. I recognise clearly that Article 15 of the Convention on Human Rights refers to,

"a war or other public emergency threatening the life of the nation".

In no way is it considered that in many cases where we should wish to implement Amendments Nos. 3 to 14 is there a public emergency threatening the life of the nation. However, there are plenty of matters of a lesser nature which are extremely important.

Section 224 of the Army Act would allow the discipline provisions, if this were applied, to be operated for discipline in Northern Ireland, where in the past the definition of active service used has included armed mutineers, armed rebels, armed rioters and pirates. Other parts of the Bill refer to international conflict. I appreciate that it would be difficult to argue that the work of the Armed Forces in Kosovo was, in the words of the convention, a

"public emergency threatening the life of the nation".

The amendments are slightly different. Amendment No. 2 is an overriding amendment and its purpose is that there should be a derogation when Article 15 of the European Convention on Human Rights is involved. In those cases it may be that the Bill is unenforceable. The other amendments deal with active service conditions; they roughly propose the same and we are trying to change the timing. Amendment No. 77 makes it clear that we are not trying to get out of it. The amendment states that if the time limits are,

"disapplied by reason of active service conditions, [they] shall start to run twelve hours after the person arrested or the unit in which he is serving ceases to be on active service".

Amendment No. 2 is a matter of principle, Amendments Nos. 3 to 14 are not; they are practicalities. I hope that the noble Baroness will give consideration to the serious problems which will arise as a result of the Bill as it stands. With that, I beg to move.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 12:15, 16 December 1999

My Lords, there are difficulties with Amendment No. 2, but the Committee may believe that Amendments Nos. 14 and 77 are wholly requisite and well founded. The difficulty presented by Amendment No. 2 is this. My noble friend says that it is an overriding amendment and there should be some derogation from Article 15. The difficulty is that, to be effective, derogations from Article 15 have to take place at the time that the convention is ratified. They cannot be introduced by the domestic legislation of member states in any event. Article 15 relates to measures taken by the high contracting parties in a public emergency in which the life of the nation, the high contracting party, is threatened. It is not in any way concerned with the situation affecting an individual person.

The amendment proposes an interpretation of Article 15 which it cannot bear. It would not be appropriate to seek to re-write the provisions of Article 15 or the 1988 Act as proposed by the amendment. Although this is a domestic statute, the Armed Forces discipline purports to implement other provisions of the convention.

I thank my noble friend Lord Burnham for tabling Amendment No. 2 because, as a probing amendment, it affords a valuable opportunity to discuss a practical omission from the Bill. I know that there are certain amendments, which I support, that Clauses 11 and 14 to 25 should not stand part. But let us assume that they do stand part. Amendment No. 89, in my name, concerns the appellate courts martial courts and deals solely with matters of the convention. Let us assume that it is rejected. As for some kind of exclusion clause, behind the concept of my noble friend Lord Burnham, there is the introduction of an exclusion clause. We should have an exclusion clause applicable to discipline in Her Majesty's Armed Forces engaged in armed active service, including peace-keeping. That is one of the reasons that Amendment No. 14, introduced by my noble friend Lord Burnham, is of such importance.

It is much to be doubted whether such an exclusion clause in our domestic legislation would be considered by the Commission or the Court of Human Rights to be in breach of any article of the convention. Let us take the following situation which is new, relevant and must be considered. Our Government and the French Government propose to enter into a joint enterprise and set up a rapid reaction force. I gather that it would be quite sizeable, 60,000. It is important that there should be no disparity of treatment as regards discipline as between members of that force. The noble and gallant Lord, Lord Carver, took the point on Second Reading that we know that France has opted out of the convention. We have not done that. The amendment which I proposed originally, which in a sense started this, did not seek to do that and I shall deal with it. It simply sought to remove the Armed Forces discipline problem from the fast-track procedure. The question of us opting out of the convention was never part of the argument.

It would be difficult to say so, but I cannot see that in the circumstances of the joint venture between the French and the English, the European Court of Justice could accept a form of substantial disparity in treatment. I suggest that the Court of Justice would not find an exclusion clause, roughly along the lines I proposed, in breach of any article of the convention. I thank my noble friend Lord Burnham for his probing Amendment No. 2, which gives an opportunity for discussion of that aspect of the matter if Members of the Committee so wish.

Photo of Lord Carver Lord Carver Crossbench

My Lords, I find myself in a difficult situation, not being a lawyer. It seems to me that in practical terms it would not be possible, under severe active service conditions, to apply most of the provisions of the Act. Therefore, to my mind, the amendments should be supported.

One of the essential elements when one is on active service--and I mean active service, not just peace-keeping--is that one must deal with offences quickly. The man must return to his duties with the least possible delay. I accept that, for example, in peacekeeping operations in Kosovo or somewhere like that it would be possible, although very difficult, to apply the provisions as they now appear in the Bill. But if one were involved in more intense operations of the kind envisaged within NATO--for example, the Gulf, if it had gone on for longer--the provisions of the Bill could not be made to work unless someone who committed an offence was automatically removed from the theatre of war, which would be very undesirable. I therefore support the amendment.

One must be very careful about defining "active service conditions". In the Second World War every charge against a soldier, even for stealing a loaf of bread, started off "WOAS" (When On Active Service). I understand that that has not been used for nearly a quarter of a century. While I am not an expert on legal phraseology, I believe that somehow provision must be made for operations of higher intensity when it would not be practical to apply the measures as now set out in the Bill.

Photo of Lord Bramall Lord Bramall Crossbench

Before I support the active service exclusion clauses tabled by the noble Earl, Lord Attlee, and the noble Lord, Lord Burnham, perhaps I may try to dispel one misapprehension which was aired or implied during Second Reading; namely, that invariably there is a conflict between justice and military discipline and, therefore, this Bill is necessary to strike a balance between those two essentials. I do not believe that that is the case at all. There may be some instances under operational conditions when justice must be a bit "rough". I can think of one example when I commanded a battalion on active service in the jungles of east Malaysia in a conflict against Indonesia. We experienced a rash of accidental discharges of weapons which constituted a great risk to our troops. I told the whole battalion that it should be fully aware in advance that if in future anyone committed the offence the punishment would invariably be 28 days' detention. It concentrated the mind marvellously and stopped that dangerous indulgence just like that. It was widely accepted as being necessary. In the circumstances, I believed that that was justice however difficult, if not impossible, it would have been to implement under the new Bill as it stands. At worst it saved possible injury and followed the two main principles of discipline: that the action should be consistent and that it should be thoroughly well understood. In any case, as the noble Lord, Lord Renton, pointed out during Second Reading, in such conditions discipline must come first.

If the whole Bill cannot be modified in the interests of service discipline--I trust that it can be as a result of what takes place later in the debate--I hope that it will be done at least in relation to active service conditions. Despite the views of the Adjutant-General's department or other personnel departments, I ask the noble Baroness to look again at the whole question of differentiation between active service and home service. It is under active service conditions that the innovations in this Bill would cause the most damage. Further, as my noble and gallant friend said, these measures would be largely unworkable.

Photo of Lord Burnham Lord Burnham Conservative

Before the noble Baroness replies, particularly in view of the observations of my noble friend Lord Campbell of Alloway, perhaps she will deal with Amendment No. 2 separately from the others. I believe that that is concerned with the principle and the others with practicalities.

Photo of Lord Mackay of Drumadoon Lord Mackay of Drumadoon Judge

Having heard what the noble and gallant Lords, Lord Carver and Lord Bramall, said, many noble Lords will be of the view that some solution must be found to the problem they identified; namely, that in its present form the Bill can create difficulty when troops are engaged on active service. Very wisely, they do not go as far as to say that it will always create difficulty but, based on their long experience, they envisage that the Bill as presently drafted may lead to such a problem. As a lawyer but layman in military terms, I suggest that a solution to the problem requires to be found because of the possible implications for the authority of the commanding officer of a battalion, the morale of the troops who serve under him and the effect on the execution of the military campaign on which they are engaged at the relevant time.

I was present for most of the Second Reading and have read through the whole debate in Hansard. I have not seen any effective answer to the concerns raised on all sides of the Chamber. If a solution to the problem is to be found, perhaps the noble Baroness is prepared to consider, with her officials and advisers, the regime introduced by the Armed Forces Act 1996 for the purposes of determining whether it is necessary to hold a field general court martial as opposed to a general or district court martial. Section 103A of the Army Act, which was introduced by the 1996 Act, provides that,

"(1) Where an officer to whom this subsection applies--

(a) is commanding a body of the regular forces on active service; and

(b) is of opinion that it is not possible without serious detriment to the public service for a charge against a member of that body to be tried by a general or district court-martial, he may direct that the charge be tried by a field general court-martial".

Later provisions introduced by Schedule 1 to that Act provide that such a field general court martial can sit without having as one of its constituent members a judge advocate. Therefore, the Act introduces a two-stage test: first, the commanding officer is required to be in command of a body of the regular forces on active service; secondly, he must be of the opinion that in the particular circumstances with which he is confronted it is not possible without serious detriment to the public service for the normal form of court martial to take place.

I believe that a solution based on that general approach may be one way to address the practical problem repeatedly identified today and by speakers during the Second Reading debate. If it were a way forward it might apply not only to the clauses with which this amendment is concerned but also to some other provisions which clearly cause concern to noble Lords on all sides of the Chamber.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat

I do not have military experience, but as a civilian I have studied defence from the outside for some time. Part of the difficulty with this amendment is to try to imagine circumstances today in which active service involves considerable periods of time out of contact with one's command structure. I recall a Royal Marine telling me of an occasion during the occupation of northern Iraq after the Gulf War when a Dutch marine attached to a British Royal Marines commander at one point referred back to The Hague before accepting the order of a British senior marine. Someone remarked to me the other day that even if the Prime Minister did not want to talk to you when on active service it was quite likely that someone from the BBC, CNN or Sky News would pop up to ask a question.

I do not believe that the kinds of military operations in which we were engaged even 20 or 30 years ago, when operations in jungle conditions, submarines or elsewhere were necessarily much more autonomous, apply today. I struggle to think of circumstances on active service under which such a broadly phrased amendment could be needed. There may conceivably be some extreme cases where emergencies may apply. The amendment is extremely wide and seems to me undesirable.

Photo of Earl Attlee Earl Attlee Conservative 12:30, 16 December 1999

I am grateful for the noble Lord's contribution. He identifies our concern about the principle of the need for military discipline. The noble Lord assumes that we shall never become involved in military operations which go horribly wrong. My great fear is that one day we shall be involved in military operations where we may be cut off from the command structure and MoD--and the noble Lord will be found to be wrong.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat

The most recent military operation which went horribly wrong was the Dutch involvement in Srebenica. Lack of communication was not part of that. Communications were extremely good. The failure to gain answers or reinforcements from outside was what was wrong in Srebenica. It was not a question of being out of touch.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence

I believe that the amendments have been grouped together because the noble Lord has a number of linked concerns about the operational effectiveness of the Armed Forces were the Bill to be enacted as it stands. The noble Lord has asked me to separate out the way in which I deal with what he describes as his point of principle on Amendment No. 2. I can then deal with the other amendments together if that is helpful to the noble Lord.

The intention of Amendment No. 2 is clear. However, I believe that the intention of Article 15 of the convention is clear, too. The article is quite specific in its provisions. Those are that any state may take measures derogating from the convention--and I quote, as did the noble Lord, Lord Campbell of Alloway--

"to the extent strictly required by the exigencies of the situation"-- and this may only be,

"in time of war or other public emergency threatening the life of the nation".

I believe it would be difficult to argue that the range of circumstances covered by the noble Lord's amendment would qualify for a derogation under Article 15. The noble Lord's amendment refers to "active service conditions". In another amendment they are defined as "active operational duties". I am sure that I do not need to remind noble Lords of the range of operational activities undertaken by our Armed Forces. They are all important. But I do not think any of us would suggest that they all amount to war. Of course they do not; nor do they all amount to dealing with emergencies which threaten the life of the nation.

Of course, we could try to argue that the operations in, for example, East Timor are of such a nature as to justify a derogation under Article 15 of the convention. This would be an issue on which we would ultimately need to persuade the Court at Strasbourg. We should have to demonstrate that we were at war or that the life of the nation was under threat. We should then have to demonstrate that our suspension of the relevant article of the convention was a proportionate act in the circumstances. I do not need to tell the Committee what expectation I have of the possibility of success in those circumstances. That was the point made by the noble Lord, Lord Campbell of Alloway.

I stress to the Committee that there are other issues at stake here. First, there is the Government's full commitment to the principles of the convention. The noble Lord, Lord Burnham, is right. This is an argument which goes to the principle of the legislation. It is the principle of being compliant with the convention that the Government seek to uphold in this legislation. The proposed amendment would run counter to that principle and to that policy as well as to the spirit and the letter of the convention.

Perhaps I may remind the Committee that it was in this Parliament, and not so very long ago, that we decided to commit ourselves to legislate upon the convention. I am sure that we shall have some discussions about the debate we had at that time.

Photo of Lord Bramall Lord Bramall Crossbench

I am obliged to the Minister for giving way. Does the noble Baroness accept that the wars in the Falklands and the Gulf would meet the conditions she mentioned?

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence

That is a difficult point. As the noble and gallant Lord will know far better than I do, the declaration of a state of war has very specific legal implications. We can be in armed conflict without necessarily being at war. Indeed, it is often not in the interests of the United Kingdom when we are in armed conflict to elevate that to the level of declaring ourselves to be at war because of the difficulties that would emerge in the way that third party countries would have to treat the United Kingdom.

Of course there are circumstances where there are armed conflicts but where, as the noble and gallant Lord knows, and as has been clear in some recent conflicts, we do not declare war because of the difficulties that would arise with other legal relationships were we to do so.

Photo of Lord Burnham Lord Burnham Conservative

I apologise to the Minister for interrupting her yet again. However, I must point out to her that in a debate in your Lordships' House earlier this week we touched on the difficulties of deciding what is a state of war. The Americans, who are normally our allies, have very different legislation on what is or is not a state of war. With respect, I do not think that her remarks to the noble and gallant Lord apply in those circumstances.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence

I agree with the noble Lord that there are different interpretations of a state of war. During the course of debates today perhaps I may ask my officials to ensure that I have placed in my hand the internationally agreed definition--I believe that there are such conventions--so that that is available to us. That may give us some help on the issue.

I was referring to the passing of the Human Rights Act. When we discussed this legislation at Second Reading a number of noble colleagues referred to my noble and learned friend the Lord Chancellor who spoke on behalf of the Government at that time. My noble and learned friend said that there will be situations in which special considerations would have to apply to the Armed Forces because of the nature of their work. He added that it would be a matter for the Armed Forces to look at each situation on its merits and ensure that any actions they took were consistent with the convention rights as they would be applied to the particular circumstances of the case.

I was concerned during Second Reading that some noble Lords were perhaps tempted to believe that somehow that represented a kind of green light for the services to stand aside from the convention in the sense of this amendment, and some of the comments at Second Reading. The noble Lord shakes his head; I am happy to leave that point for the moment.

Having dealt with the point of principle, which is laid out in Amendment No. 2, perhaps I may turn to Amendment No. 14.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

I am obliged to the noble Baroness for giving way. Before leaving Amendment No. 2, I want to point out that, as regards war under public international law, there is no state of war unless there is a declaration of war with all that that entails. But so many armed activities go on all over the world, and have done so since World War II, which are totally akin to war. The situation is exactly the same, as are the questions of command and discipline, as in an emergency.

Therefore, when the noble Baroness examines the issue with her officials, will she not draw some artificial, legalistic distinction in public international law, but have regard to the practicalities on the ground?

Photo of Lord Craig of Radley Lord Craig of Radley Convenor of the Crossbench Peers

Perhaps I may add to that point. Servicemen who in recent years have operated in Kosovo and elsewhere have frequently been "on active service". That is their understanding and I believe that to be the position.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence 12:45, 16 December 1999

I understand your Lordships' concern that there is no artificially restrictive position over what might be thought of as "a state of war" when we are considering the lives of servicemen who are engaged in active operations where there is an identifiable enemy. I undertake to try to help the Committee a little more on that specific point during the course of today's debate.

I turn to Amendments Nos. 3 to 14. I realise that they are the logical consequence of the wishes of the noble Lord, Lord Burnham, and the noble Earl, Lord Attlee, to ensure the effectiveness of the summary discipline procedure in operational circumstances. However, their amendments would insert provisions in the Bill that would allow the commanding officer to hold an individual in custody for an indeterminate period without ever having charged him with an offence. That would be the effect of the amendments.

There is no doubt in my mind that they are clearly and unequivocally incompatible with the provisions of the European Convention on Human Rights. No derogation from the convention would save them because, as I explained in relation to Amendment No. 2, we would have to demonstrate that we were at war or that the life of the nation was under threat. We should then have to demonstrate that our suspension of the relevant article of the convention was a proportionate reaction in the circumstances.

I appreciate that the purpose of the amendments is benign: to simplify matters for the commanding officer at times when he or she has other pressing pre-occupations. However, I believe that we can address the noble Lord's legitimate concern. First, the Bill allows some latitude to extend the time before an individual is brought before a judicial officer, if the 48 hours provision is impracticable. That is proposed in new Section 75C(5) of the Army and Air Force Acts 1955 and new Section 47D(5) of the Naval Discipline Act 1957 as inserted by Clause 1.

Secondly, we in the Ministry of Defence are obviously planning how the provisions of the Bill will be implemented in practice. That is not going on in an abstruse part of the Ministry of Defence where only those who know a great deal about personnel management are to be found. It is being actively pursued by serving Army, Navy and Air Force officers; those who have current experience of dealing with men and women in the field.

The Bill provides for the use of television and other links. The thinking is very much along the lines that such resources will be used to the full, particularly in the types of conditions which are of great concern to the noble Lord and others. But for many, many months, work has been undertaken in the Ministry of Defence on how the practical measures, which we all understand, can be met and how the operational integrity of the Armed Forces can be preserved if the Bill is passed.

I turn to Amendment No. 77 tabled by the noble Lord, Lord Burnham, and the noble Earl, Lord Attlee. Like the amendments tabled to Clause 1, the amendment is not acceptable to Her Majesty's Government because it would insert provisions in the Bill that would allow the commanding officer to hold an individual in custody for an indeterminate period without ever having charged such an individual with an offence. I do not believe that we would be able to justify such an onerous measure in any circumstances.

When considering these amendments, it is important for us all to remember that concern to make the Armed Forces work as well as they can is not exclusive to your Lordships' House. It is under active consideration in the MoD and by current serving Army officers. Therefore, I say to your Lordships that, while the Armed Forces are determined to make the new procedures work, they are equally determined not to allow operational effectiveness to be jeopardised. Of course that is the case; that is their business. They do not want a discipline system that functions in one way in certain circumstances and in another way in other circumstances. They do not want a discipline that is divisive between those who would be caught by a derogation and those who would not.

We in your Lordships' House often talk about our respect for the brave men and women in our Armed Forces. I believe that we all need to do some joined-up thinking about the issue. We need to consider the import of such amendments on the perceptions of the men and women in our Armed Forces who will be subject to the disciplinary codes. The discipline system must be acceptable not only to the commanding officers but to those under their command. The men and women in our Armed Forces have rights, too, and we must respect the rights of those individuals.

I do not consider that the introduction of measures which would allow indefinite incarceration without charge and without trial is compatible with the kind of disciplinary system we need to see in our Armed Forces as we enter the next millennium.

Photo of Lord Renton Lord Renton Conservative

In view of the Minister's comments about being subject to the European Convention on Human Rights and having implemented that with the 1998 Act, perhaps I may remind her that, as soon as the then government of this country signed the convention, the people of this country became subject to it and had rights under it. However, they could not enforce them except by going to the European Court of Human Rights. That was why, unlike some of my noble friends, I felt that the Government were fully justified in having the convention enforced by our courts.

If I remember rightly, in 1952 the then government signed the convention. It could be said that all the problems to which the Minister referred have been in existence since then, but that has not stopped one government after another deciding to enact our own law independently of the convention. Given all those years of--if I may use the expression--"co-habitation" between two important matters, are the Government fully justified in now saying that because of the convention there can be no question of Army discipline asserting itself even on active service?

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, following my noble friend Lord Renton's intervention, I ask, with respect, whether the Minister could take on board his last question. Furthermore, in relation to Amendment No. 14, the Minister used the phrase, "preservation of operational integrity". Throwing the phrase back, there is no article of the convention, which I have here in my hand--I have been looking through it for about the 50th time--which states that preservation of operational integrity as such, and no more, if it could be justified, would be contrary to the convention.

The vast majority of signatory states to the convention possessed armed forces at the time when it was signed. It was implicit that they should be entitled to maintain discipline in their armed forces and to protect operational integrity. I wonder whether, when the Minister considers the matter with her advisers--I am not pressing her at all for a response today--she could consider looking through the convention. As far as I am concerned, it is common ground between the Minister and myself that Article 15 does not apply in this case. Where is the clear breach of which article of the convention that would arise from preservation of operational integrity?

Photo of Lord Mackay of Drumadoon Lord Mackay of Drumadoon Judge

My Lords, before the Minister sits down, will she indicate whether she is prepared to undertake to look at the issue that I raised about the field general courts-martial? In reply to the debate on the amendment tabled by my noble friend, she said that one could not have one procedure working in one set of circumstances and another procedure in another set of circumstances. With respect, that seems to be what Section 103A provides. If the Minister is right about that, it raises sharply the issue of whether those provisions comply with the convention rights under the Human Rights Act.

I appreciate that the material is complicated and difficult and I do not expect an answer this afternoon, but I hope that the matter will be looked at because it seems to me that the thrust of the Minister's argument in reply to the principle argued by my noble friend is contradicted by existing legislation that she is not seeking to change in the present Bill.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Defence Procurement), Ministry of Defence

My Lords, I undertake to look at that matter as the noble and learned Lord has kindly asked me to. This is extremely complex legislation. We are dealing not only with the usual array of magnificent support from the Civil Service and from civil service lawyers, but also of course from the military.

I shall attempt to return to the point raised by the noble Lord, Lord Renton, who reminded us that we signed the convention--I believe it was in 1951--and that we have managed to live with it perfectly reasonably without feeling the necessity to legislate in such a way. The amendments are now necessary because of the 1998 legislation, of which your Lordships are well aware, which brought the convention into our domestic courts.

I shall try to expand my explanation to the noble Lord. A failure to make such changes would render the system for service discipline subject to challenge in our domestic courts. The risk of frequent and successful challenges to the system would create an untenable position. That risk would seriously undermine service discipline and would seriously undermine the authority of the commanding officer. Commanding officers would be subject to constant appeals, not only to a military court but also to domestic courts or on judicial review. For that reason, as I indicated in my answer to a point raised earlier by a noble Lord, the chiefs of the armed services are extremely anxious to see this legislation enacted as quickly as possible.

I must confess that I used the terminology "operational integrity" not from the beautifully prepared briefs given to me by the department but as a way of trying to emphasise to your Lordships that the Armed Forces themselves are of course absolutely committed to operational effectiveness. That is what I meant by that phraseology; I was not trying to introduce an entirely new concept. It was only my own way of expressing--rather inelegantly--the issue about which we are all concerned; that is, the way in which we can ensure that individual service men and women are guaranteed their rights under the convention while at the same time ensuring operational effectiveness. That has been the concern of the Ministry of Defence and, indeed, the concern of our colleagues in the Armed Forces, as I am sure all noble Lords would expect it to be.

Photo of Lord Burnham Lord Burnham Conservative

My Lords, I do not wish to be accused, as my noble friend Lord Moynihan was in the past, of misquoting the Minister, but she said that officers and men at all levels would do their very best to make the Bill and other legislation relating to discipline work. Of course they do; they are highly disciplined and they will do everything they can to make it work. That does not necessarily mean that they have to like it.

I should like first to speak to my Amendment No. 2, which is an amendment of principle. Article 15 of the European Convention is quite specific about the terms and I accept that, although I must admit that it is a pity that His late Majesty's Government did not implement a degree of derogation as the French did in 1951. But there it is; and we have it. This is a matter of principle. My noble friend Lord Attlee talked about things "going horribly wrong". I use a slightly different phraseology: I shall talk about getting into a very mucky conflict. That being the case, there needs to be some form of derogation in the Bill in principle for matters which come under the terms of Article 15 of the European Convention on Human Rights. I am by no means sold on my wording, but, in withdrawing the amendment, I hope that the noble Baroness will consider all that has been said and will conclude that there is possibly a case for introducing something along those lines at the next stage of the Bill. However, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Burlison Lord Burlison Government Whip

My Lords, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.