Armed Forces Bill

– in the House of Lords at 3:09 pm on 31st October 2006.

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Clause 1 [Assisting an enemy]:

Photo of Earl Attlee Earl Attlee Conservative 3:15 pm, 31st October 2006

moved Amendment No. 1:

Page 1, line 7, leave out "lawful" and insert "reasonable"

Photo of Earl Attlee Earl Attlee Conservative

My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2, 5, 7 to 10, 20, 24 to 26 and 29. First, I remind the House that I have an interest as a serving officer in the TA—indeed, I shall be on exercise this weekend.

In Committee, I explored the legal defence of lawful excuse and reasonable excuse in respectof military offences under the Bill. On the first day of our deliberations, the Minister said:

"Existing Clause 1 gives a defence of 'lawful excuse', which would allow a defence that an accused had express or implied authority or whose action is justified by law".

He went on to say:

"'Reasonable excuse' gives a wider defence which would allow a court martial to look at all the circumstances and decide whether the conduct of the accused was reasonable".—[Hansard, 24/7/06; col. 1596.]

The problem is that when a superior officer gives me a mission, he will give me express tasks and he will give me implied tasks. He will also give me express authority. Perhaps he will give me some troops and equipment, or maybe he will give me wider rules of engagement. But he will also give me implied authority to do anything that is reasonable in order to achieve the mission. To determine whether I have implied authority to take a given course of action, I have to ask myself: would I be acting within my commander's intent, and perhaps his commander's intent? To put it another way, if I was in a situation and I was able to ask my commander for his express authority, would he grant it? But the test that my commander would apply would be: is this a reasonable request; does my subordinate want to take a reasonable course of action?

In Committee, I tested Clause 1(1)(d), which makes it an offence to provide the enemy with supplies. In my then Amendment No. 6, I suggested that medical supplies should be exempt from this provision. The Minister responded by saying:

"Where it is proper to give an enemy medical treatment, that is already covered by 'lawful excuse'".—[Hansard, 24/7/06; col. 1596.]

But of course the test will be one of reasonableness, and that is what I am suggesting in my amendment: we should have a test of reasonable excuse, not lawful excuse. If the test is not to be one of reasonableness, what other test could be applied? Clause 4 covers looting. There is also here a defence of "without lawful excuse", but let us suppose that I am leading a patrol and one of my men damages his watch. The nature of the mission dictates that a watch is essential. We meet friendly forces with prisoners of war and I order that one of the POWs be relieved of his watch. Ideally, I would give the POW a receipt if circumstances permitted. My commander, when giving me the mission, would never have anticipated the need for me to relieve a POW of his watch, but I think that my course of action would be okay because I would have the implied authority to do anything reasonable to achieve the mission.

Amendments Nos. 7 and 8 provide for a defence of reasonable excuse rather than lawful excuse, and all the other amendments seek to do exactly the same. I shall not weary your Lordships by describing a possible scenario for each of them, but I will be interested to hear what the Minister has to say. Further, could he describe a possible situation where a court martial might not or could not convict without only the narrower defence being available; that is, can he outline a circumstance where the court martial could convict if it was without lawful excuse, but in the same situation could not convict if it was without reasonable excuse? I beg to move.

Photo of Lord Astor of Hever Lord Astor of Hever Deputy Chief Whip, Whips, Shadow Minister, Defence, Shadow Minister, Foreign Affairs, Shadow Minister, International Development

My Lords, I welcome my noble friend's amendments. As my noble and learned friend Lord Mayhew said in Committee, one of the principal aims of the Bill is to provide clarity for service people. It would seem right, therefore, that the same term should be used in each case, rather than "lawful" in some instances and "reasonable" in others.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, we have some sympathy with these amendments but perhaps the same position might be met in a different way—that it be recognised that there is a duty on the new Director of Service Prosecutions to act reasonably in bringing a prosecution. It is not in every instance necessary to prosecute someone for a breach of one of the provisions of the Bill. If—as perhaps has not always happened—the Director of Service Prosecutions were to act reasonably in making his decision, the fears of the noble Earl would be met.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, as I explained to the noble Earl in Committee, and as he correctly quoted, we believe that the existing clauses as drafted give the defence of lawful excuse, which is intended to allow a defence that an accused had express or implied authority or that his action was justified by law. Unfortunately, I do not have the military experience of the noble Earl and so, on the Floor of the House, I do not think that it would be appropriate for me to come up with military examples such as he describes. He has given a number of examples as we have discussed this matter, but I do not intend to go through them in detail and detain the House. Suffice it to say that we believe that the term "lawful excuse" is sufficient to cover the circumstances that he has described.

As the noble Earl said, "reasonable excuse" would give a wider defence and allow a court martial to look at all the circumstances and to decide whether it thought that the accused's conduct was reasonable. The offences of assisting the enemy and obstructing operations are very serious, as they could potentially have a catastrophic effect on operational effectiveness and may, in the worst case, result in loss of life in our own forces. Amendments Nos. 1, 2 and 5 may well suggest to a serviceman that it was open to him to consider whether, for example, it was "reasonable" for him to give an enemy information that would be useful to it. I am sure that noble Lords will appreciate that the matters that are prohibited in Clauses 1 and 3 are so central to the operational effectiveness of our services and their operations that there is no room for grey areas. As the clauses are drafted, it is clear to all servicemen that they must not do these things unless a clear legal reason exists.

I share the view of the noble Lord, Lord Astor, about the importance of the Bill in providing clarity to our Armed Forces. We believe that the Bill gives such clarity. These are not matters that can be open to debate or personal discretion. What one man considers to be reasonable may be completely unreasonable when other matters are considered. In the present environment in which our Armed Forces so often operate, it would be unreasonable of us to place the burden on them of having to weigh up such decisions. It is far better that we give clear direction to the services on these matters—and that direction is that the matters listed in Clauses 1 and 3 are prohibited in the absence of a lawful excuse.

I strongly believe that it is appropriate that the narrower defence should apply to both those offences and, for the reasons stated, I cannot support the amendments. I urge the noble Earl to reconsider.

The remaining amendments in the group—Amendments Nos. 7 to 10, 20, 24 to 26 and 29—raise issues similar to the ones to which I have responded in my reply to Amendments Nos. 1, 2 and 5 and I do not propose to go further and detain the House by repeating myself. I reinforce our belief that the narrower offence of lawful excuse should be applied to the offences to which the noble Earl, Lord Attlee, has drawn attention. Offences that would be affected by these amendments are also likely to be the subject of orders, such as standing orders, which do not allow for personal discretion or debate.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I am grateful to the Minister, but my basic point is that "implied authority" must be the equivalent of taking a reasonable course of action. Let me give a simple example: the Minister touched on giving the enemy information that would be useful to it. That is a common military tactic—it is called deception. Sometimes it fails, especially at a low level, and servicemen could find themselves extremely vulnerable under this charge.

I am afraid that I disagree with the Minister. However, it is far too early to start dividing, and I will not be returning to the issue again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 3 [Obstructing operations]:

[Amendment No. 3 had been retabled as Amendment No. 4A.]

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, I remind your Lordships of the declaration of interest I made at the beginning of Committee: I am an advocate practising from time to time in courts martial.

In Committee I sought to introduce into Clause 3 a statutory defence to the effect that a person would have a defence if he could prove that the action with which he was concerned was illegal. Having listened to your Lordships and to the Minister, I preferred the far simpler, more direct approach of the noble Lord, Lord Judd, in his amendment in Committee to Clause 8. That would make it absolutely clear that the action or operations referred to in Clause 3 must be lawful.

It is no defence for a defendant to suggest that he was only obeying orders. If those orders are illegal and unlawful but he nevertheless carries them out, he is still guilty of an offence which may be as high as an offence against humanity. If that is the clear position in law, the corollary of it is that if a person is given an illegal order and instead of acting upon it and committing an offence, he refuses to obey it, he ought to be able, in the course of any criminal proceedings that are brought against him—whether they are for obstructing operations or, as we shall come to later, for mutiny—to require the prosecution to show that the action or operation that he was ordered to carry out was not lawful. It should be made clear to the prosecution that that is the position. Should the issue ever arise as to the legality of an act or operation the defendant is ordered to carry out, or even his participation in an illegal war, he is entitled to take that defence and argue it before the courts.

In Committee, your Lordships may recall the suggestion, particularly from the noble and learned Lord, Lord Mayhew, that the Attorney-General must be the final arbiter of whether a war, an invasion, an act or operation, is legal or illegal. I do not accept that; I do not think that that is the proper way forward. It may be shown, in subsequent proceedings, that a war is illegal. Is a person therefore not entitled to ask the courts in individual proceedings that are brought against him to determine the matter? The purpose of tabling these amendments is to give the courts the right to determine the legality of the operations or actions that are planned.

I shall be a little more specific about the amendments. In Clause 3(2)(a) an offence is committed if, without lawful excuse, a person subject to service law,

"does an act that delays or discourages an action or operation".

Those vital words, "without lawful excuse", which we have just debated under the amendment proposedby the noble Earl, Lord Attlee, do not appear in Clause 3(1)(a). I do not understand why that distinction should be drawn. Is that simply an oversight or is there some genuine policy behind removing that defence from Clause 3(1)(a) while it is included in Clause 3(2)(a)?

The other amendments seeking to make it clear that the action or operation is lawful could, I am quite sure, be met by the Minister if he were to give me an assurance that any act or operation must be lawful before an offence was committed. If I have that assurance from the Dispatch Box today, it will not be necessary for me to weary your Lordships further. But I would like an explanation of the omission of "without lawful excuse" in Clause 3(1)(a) and an assurance that the operation or action is to be lawful. I beg to move.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement) 3:30 pm, 31st October 2006

My Lords, Amendments Nos. 4, 4A and 6 change the substance of the offence of obstructing operations. Amendment No. 4 seeks to add "without lawful excuse" to Clause 3(1)(a). It would mean that doing an act that was likely to put at risk the success of an action or operation would not be an offence if it was done with a lawful excuse. This cannot be right. The offence provides that such an act requires that the defendant must have intended or been reckless as to whether he prevents the success of the action or operation. But there can never be a lawful or even a reasonable excuse for preventing the success of an action or operation when there is an intention to do so or the person is reckless as to whether success is prevented.

The position on the next subsection is different. Here the Bill includes the defence of "without lawful excuse" in the offence of delaying or discouraging an action or operation. It is right that we have included "without lawful excuse" in relation to this offence because there may be good reason to do so. Indeed, there may be express or implied authority to do so. For example, it may be necessary to delay in order to await more troops. But the same, as I have said, can never apply to preventing the success of an action or operation.

Amendments Nos. 4A and 6 relate to the lawfulness of the action or operation for an offence to have been committed. This is a similar issue to that that arises later with regard to the offence of desertion. I understand the thinking behind these amendments, but they are simply unnecessary. Issues of international law are rarely straightforward, and members of the Armed Forces should not be expected to wrestle with the complexities of this field of law.

I dealt with these arguments in Committee in some detail, and I hope that your Lordships will forgive me for repeating myself. International law looks at Governments and states in relation to the legality of operations; it does not expect the ordinary serviceman or woman to assess whether an operation is sanctioned by international law. It would totally undermine the cohesion of the Armed Forces to provide, in respect of operations, for a member of the Armed Forces to obstruct an action or operation because he or she thought that it was unlawful or contrary to international law.

The law relating to whether a war or an occupation is lawful essentially applies at a national level. It certainly does not create a legal liability on service personnel who participate in it. The law which applies to them is the law in relation to the conduct of that operation.

The decision to go to war is for the Government of the day, and we take our legal obligations, both domestic and international, extremely seriously. Any decision to take military action is carefully considered in all circumstances, and legal advice is obtained at the highest levels. I hope that with this explanation the noble Lord feels able to withdraw the amendment.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, I have not heard an explanation that satisfies me about the distinction between Clauses 3(1) and 3(2). I am concerned about the response to the other amendments; that is, my attempt to insert "lawful" in the appropriate places. I have no doubt that before any action is taken by way of warfare, that action is carefully considered, as the Minister said a moment ago. But I am not asking a serviceman to grapple, as he put it, with international law. I am saying that if he is brought before the courts and his defence is that the action was unlawful, it is not enough for the prosecution to say, "It is a matter of national law, the Attorney-General has decided that it is lawful, and the courts cannot interfere". That excludes the jurisdiction of the courts, which cannot be right. At the end of the day, it must be for the courts to determine whether an operation and the orders that depend upon it are lawful.

As the noble Earl, Lord Attlee, said, it is early in the afternoon, but this is a matter of such important principle that I would like to test the opinion of the House.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 63; Not-Contents, 165.

Division number 1 Private Parking: Ports and Trading Estates — Armed Forces Bill

Aye: 61 Members of the House of Lords

No: 163 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 4A to 6 not moved.]

Clause 4 [Looting]:

[Amendments Nos. 7 and 8 not moved.]

Clause 5 [Failure to escape etc]:

[Amendments Nos. 9 and 10 not moved.]

Clause 6 [Mutiny]:

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement) 3:47 pm, 31st October 2006

moved Amendment No. 11:

Page 4, line 17, leave out subsections (1) and (2) and insert-

"(1) A person subject to service law commits an offence if he takes part in a mutiny.

(2) For the purposes of this section a person subject to service law takes part in a mutiny if-

(a) in concert with at least one other person subject to service law, he- (i) acts with the intention of overthrowing or resisting authority; or (ii) disobeys authority in such circumstances as to subvert discipline; (b) he agrees with at least one other person subject to service law to overthrow or resist authority; or (c) he agrees with at least one other person subject to service law to disobey authority, and the agreed disobedience would be such as to subvert discipline."

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, I shall also speak to Amendments Nos. 12 and 13. I listened carefully to the concerns of noble Lords in Committee, particularly those of the noble and gallant Lord, Lord Craig, regarding the offence of mutiny and the manner in which the clause was originally drafted. I agreed to consider that, and on reflection I agreed that the clause could be redrafted in an effort to make the provision simpler to understand, not least by including the word "mutiny" in the body of the offence.

There is no substantive change to the effect of the original clause; mutiny remains both an agreement to resist or overthrow authority and the act of doing so. Under Clause 7 as amended, it remains an offence to fail to suppress an act of mutiny but not to fail to suppress the agreement. I trust that addresses the concerns of the noble and gallant Lord, Lord Craig, and I am grateful to him for highlighting the issue. I trust that he regards this as a more satisfactory result. I beg to move.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

My Lords, I thank the Minister for taking note of the points that I raised in Committee. I am happy with the amendment.

On Question, amendment agreed to.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

moved Amendment No. 12:

Page 4, line 27, leave out "this section" and insert"subsection (2)"

On Question, amendment agreed to.

Clause 7 [Failure to suppress mutiny]:

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

moved Amendment No. 13:

Page 4, line 39, leave out from "when" to end of line 40 and insert "a person subject to service law, in concert with at least one other person subject to service law-

(a) acts with the intention of overthrowing or resisting authority; or (b) disobeys authority in such circumstances as to subvert discipline."

On Question, amendment agreed to.

Photo of Baroness Hayman Baroness Hayman Lord Speaker

My Lords, I must advise the House that if Amendment No. 14 is agreed to, I cannot call Amendments Nos. 15 to 19 by reason of pre-emption.

Clause 8 [Desertion]:

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

moved Amendment No. 14:

Page 5, line 7, leave out subsections (2) to (5) and insert-

"(2) For the purposes of this Act a person deserts if he-

(a) leaves or fails to attend at his unit, ship or place of duty with the intention of remaining permanently absent from duty without lawful authority, or having left or failed to attend at his unit, ship or place of duty he forms the like intention, or (b) absents himself without leave with the intention of avoiding serving at any place overseas, or (c) absents himself without leave to avoid service or any particular service when before the enemy, and references in this Act to desertion shall be construed accordingly.

(3) Any person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, and any sentence of imprisonment imposed in respect of the offence-

(a) if subsection (2)(c) applies may be for life, or (b) otherwise, must not exceed two years."

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

My Lords, in Committee I expressed reservations about the wording of Clause 8. It was convoluted. It identified tasks that, if not fulfilled, would mean that an offence of desertion would have been committed. I tabled a probing amendment to allow the Minister to explain why we should accept Clause 8, whose definitions of desertion differ significantly from those used in the existing single-service Acts. Those identical definitions were introduced by the Armed Forces Act 1971, which amended the Naval Discipline Act 1957 and the Army and Air Force Acts of 1955.

The Minister's response did not satisfy me. He admitted that,

"the wording of the clause takes more than one reading to be clear to the layman".

But servicemen are laymen, not lawyers, apart from a very few people in the legal branches of the services. Is it too much to expect government support for plainer English in the Bill?

The Minister suggested that the wording of the existing Acts meant that:

"If a soldier were due to go to Germany for a training exercise but went absent because of some temporary trouble at home, he would be guilty of desertion, rather than merely absent without leave. That would be too harsh".—[Hansard, 24/7/06; col. 1636.]

I agree. If temporary trouble at home were the sole reason for his absence, surely he should never have been charged with desertion. But if he was to go to Germany and absented himself and there were indicators that that was, in the words of the amendment,

"with the intention to avoid serving", in Germany or anywhere else overseas, then a charge of desertion would seem appropriate.

The definitions of desertion in subsection (2) of the amendment are taken, word for word, from the existing legislation; the only variation is the splitting of the second definition into two parts. That is to limit a punishment of up to life imprisonment solely to someone found guilty of desertion before the enemy. Compared with the convoluted wording of Clause 8, these definitions are much clearer. Can we not stick to them? Subsection (3) of the amendment follows the wording in Clause 8(4) but is adjusted to restrict the punishment of life imprisonment to someone found guilty of desertion when before the enemy.

My understanding is that the present legislation has not proved defective in achieving convictions for desertion. It is well known throughout the three services; it is a straightforward, much clearer definition than that in Clause 8. In view of the major and complex tasks faced by all three services in transferring from existing legislation to the new Act, it would seem sensible and highly desirable to avoid changes and differences, where possible. If the existing definitions are retained in the new statute, there will be no need to re-write that part of the manual of service law. Each of the existing Acts covering the three services uses the same wording.

I also dislike the reliance on specific tasks as part of the new definition. That does not arise in the three existing Acts or in my amendment. As I pointed out in Committee, the reference to "property" in Clause 8 leaves many questions unanswered, given the definition of that word in Clause 374. Clause 8(3)(c) on,

"military occupation of a foreign country or territory", defines a relevant service. But does a "country" or "territory" include those of the European Union or the Commonwealth? We might be expected to help out if there were a problem in one of those. What about British overseas territories, where a service man or woman might be posted? I expect that there may be answers based on legal expertise to some of these points, but I should like them to be clear to non-legal service personnel as well. I raise them to underline my concern at the way in which the clause is constructed, with its complex definitions of "relevant service". It may not be as all-embracing as the authors had intended.

I also asked in Committee whether "occupation" covered every conceivable situation from a large-scale invasion to a few servicemen being attached to a unit of the country or territory at the relevant authority's request. I have not had a response to that.

My probing amendment in Committee sought to give the Minister the opportunity to explain why it was thought necessary to introduce a totally different construct to describe the offences of desertion. It is totally different from the existing one, which all three services have relied on for more than 35 years, since 1971, and which they will rely on until the new Act is introduced. The Minister was not able to help in Committee but perhaps he can this time, and I shall listen with care to his response. I beg to move.

Photo of Lord Judd Lord Judd Labour

My Lords, I shall speak to Amendment No. 18, which is in this group. Ideally, I should have liked to speak to this amendment separately but, in view of our procedural ruling, there may not be an opportunity to speak about the importance of Amendment No. 18 if Amendment No. 14 prevails.

I make plain that I feel as strongly as anyone about the seriousness of desertion; I do not want any misunderstanding on that score. Desertion can be a literally terrible offence. In the modern technological services, the implications of desertion can be even greater than was ever imagined in the past. The desertion of a key person could have huge implications for the whole operation and for the well-being and safety of comrades and colleagues.

In his earlier amendments, concerning the word "lawful", the noble Lord, Lord Thomas of Gresford, dealt at some length with the arguments. Although his arguments did not prevail—I was sad about that—they were very powerful and I shall not repeat them all now. As the noble Lord kindly remarked, in Committee I tabled an amendment about the word "legal". I listened very carefully to the Minister's reply and recognised that he and the Government believed that there were complexities relating to the interplay between international and domestic law. In view of the significance of the arguments put forward by my noble friend, I decided that, although I believed the issue remained vital, it was important to address it with slightly different wording.

Perhaps I may anticipate an argument which the Government may deploy against my amendment and which the Minister used in dealing with a previous amendment. It is the suggestion that ordinary serving men and women should not really be worried about the implications of international law, as that is something for Governments. I am not persuaded by that argument. It seems to me that an individual serviceman who does something that is not lawful is, in the end, responsible for his action and can be brought to task for it very properly.

Another point that worries me is that that is a little patronising as it suggests that we do not have very intelligent service men and women who are capable of working out very important things for themselves, and that that should be left to their superiors and Government. I do not accept that argument. For a short while, I held a short service commission; I was a volunteer. I started as a national serviceman, but I transferred into the regular Royal Air Force for a short period. As an intelligent person deciding that I wanted to take that step, I looked at its significance. It seems nothing but helpful to spell out in the law that the action that one might be required to take as a volunteer will be and must be lawful.

I turn to recent history. We all know that at the time of the Iraq war the chiefs of staff went to great lengths to ensure that they were persuaded that what was being undertaken was lawful. I was immensely reassured that they took such an issue so seriously. That is altogether good and healthy in the kind of society in which I want to live. I commend them for that.

It is also interesting to note that this argument should be deployed by my noble friend, because it seems to be contradicted at the beginning of the Bill, on page 1 at line 16. On the responsibilities of someone taken prisoner, it spells out what that person must not do:

"A person subject to service law who has been captured by an enemy commits an offence if, without lawful excuse, he intentionally serves with or assists the enemy—

(a) in the prosecution of hostilities or of measures likely to influence morale; or

(b) in any other manner not authorised by international law".

Let us consider a prisoner who is isolated, under pressure, bewildered and disorientated. At that juncture, he is expected to know whether something that he is being asked to do is in keeping with international law. We write that into the Bill, right at the beginning, so how can the Minister's argument logically be deployed in later provisions, the argument that, when it comes to the occupation of a foreign country, it is not really up to the ordinary service person to worry about whether something is in keeping with international law? I find that totally inconsistent. Not for a moment am I suggesting that the provision on page 1 should not be there—it should be—but its logic utterly follows through into what I am arguing in Amendment No. 18.

To occupy a foreign country is a very serious matter. I would hate it if at some later stage it were to be argued that Parliament specifically decided that it was not appropriate to say that this must be in keeping with international law. I do not think that would happen under the present Administration or any in the foreseeable future, although one never knows what might happen in Britain. Sometimes we do not take this point seriously enough when we legislate because we look at our present experiences and not at what might happen unpredictably. It could be argued in a hot situation with some force that Parliament considered the issue and decided that it was not appropriate to make this reference to, and to underline, international law.

In these circumstances, I ask the Minister to seriously consider my proposals in AmendmentNo. 18. I know that he is a serious man who listens to arguments and thinks about these things carefully, and therefore beg him not to say anything today which closes the door, even if he does not feel able to accept the proposals at this stage. I hope he will give a firm undertaking to consider some of the arguments I have tried to put—I am sure others will put much stronger ones—and come back to us with his decision at Third Reading, if need be.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 4:00 pm, 31st October 2006

My Lords, I oppose Amendment No. 18. We have heard another passionate and lengthy recital, as happened on Clauses 3 and 8. The noble Lord, Lord Judd, knows perfectly well that he has done little but repeat what was said then. He also knows that the noble and gallant Lord, Lord Bramall, and my noble and learned friend Lord Mayhew have rightly advised the House that the question of lawfulness the noble Lord goes on about is not a matter for the serviceman. It cannot be. In the field, it is wholly impractical to expect it to be. According to the noble and gallant Lord and my noble and learned friend, it is not a matter for the serviceman or the courts of law but for the Attorney-General in the exercise of his supervisory role.

My name is attached to Amendment No. 14. I do not propose to repeat anything that the noble and gallant Lord, Lord Craig of Radley, said. I agree with all of it; it was most neatly and eruditely prepared. I shall, however, make a short point. Listening to the noble and gallant Lord, I thought, as your Lordships may have done, that he made a good case for essentially retaining what we know has worked reasonably well and is satisfactory. I think that the noble and gallant Lord has thus far been unable to discover any breakdown or hint of criticism.

Why, then, resort to primary legislation without a clear, reasoned justification? The noble and gallant Lord got none on the previous occasion. He sowed his seeds of wisdom in Committee, which bore fruit on mutiny but fell on barren ground with desertion. Desertion is essentially a question of intention: you move from being absent without leave to desertion as a matter of intention. There seems little justification for meddling with the extant system, for the reasons that the noble and gallant Lord has given.

Photo of Lord Astor of Hever Lord Astor of Hever Deputy Chief Whip, Whips, Shadow Minister, Defence, Shadow Minister, Foreign Affairs, Shadow Minister, International Development

My Lords, I fully support Amendment No. 14 tabled by the noble and gallant Lord, Lord Craig of Radley, who, as my noble friend Lord Campbell of Alloway said, made a good case.

The amendment would provide a far more satisfactory definition of desertion than Clause 8. As the noble and gallant Lord has said, it would continue to use the current statutory definition, familiar to members of all three services. The language used in the amendment of the noble and gallant Lord has the advantage of both clarity and continuity.

On Amendment No. 18, I echo wholeheartedly what my noble friend Lord Campbell of Alloway said.

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

My Lords, I have not previously intervened in your Lordships' debates on this Bill. My plea in mitigation is that there has been nothing in the Marshalled List in the terms raised by my noble friend Lord Judd's amendment. I hope that the noble and gallant Lord, Lord Craig, will pardon me if I address that amendment.

I congratulate my noble friend on posing a question that causes concern to a number of young people in many parts of the world. I accept at once that it does not admit of an easy answer. It is part of a larger question and it may help to consider it in context. It has a long ancestry. It really consists of two questions. If a soldier is commanded to do an act that is a criminal offence, should he be excused from military discipline for refusing to obey? That gives rise to the converse question. If he carries out the command, should he be excused from criminal responsibility on the ground that he is acting in obedience to superior orders, a matter raised earlier in our proceedings today by the noble Lord, Lord Thomas of Gresford?

We are presented with a conflict between two principles. The first is the constitutional principle that the military is subject to the law, as we all are. It is its constitutional duty to recognise that it is subordinate to the civil authorities. A military commander has no power in law to excuse a subordinate from complying with the criminal law. The second principle—of course I accept entirely what was said by the noble Lord, Lord Campbell—is that an army requires discipline if it is to be effective. If every order evokes a debate, an army simply cannot function. Traditionally, that dilemma has been addressed in two ways. First, it has usually been provided that a soldier commits a disciplinary offence only by refusing to carry out a lawful order. That reappears in this Bill in Clause 12—

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, this is for clarification. That affects the constitutional position, I think. Does the noble and learned Lord draw any distinction between an order given on the field of action in armed combat and an order not given in those circumstances?

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

My Lords, if the noble Lord will forgive me, I hope to come to something approaching his question in a few moments. He asks whether I draw a distinction. I am not clear that I can draw a relevant distinction. If there is such a distinction, I have not heard it formulated.

I was going to say that, traditionally, a soldier commits a disciplinary offence only by refusing to carry out a lawful order. It appears in Clause 12. As my noble friend Lord Judd pointed out, it is referred to in Clause 1. Fairly clearly, it underlies a lot of the thinking on military discipline and has been reappearing in military disciplinary provisions for a long time. Secondly, most systems have accepted that a soldier commits an offence against the criminal law in obeying an order only if that order is clearly unlawful. That has become known as the doctrine of manifest illegality. It goes well back in history—it was provided for in the Roman army. A soldier was given a window of escape from his dilemma. It would be possible to avoid both prongs of the fork. It worked reasonably well when a soldier was expected to be a trained automaton. His duty was to obey an order instantly and unreflectively. More recently, as my noble friend has pointed out, and particularly since the Second World War that position has changed. First, before enrolment, soldiers are expected to attain impressive standards of education. They are encouraged to show initiative and to reflect on what they are doing. A soldier is no longer an automaton. Secondly, questions arise in a wider context—and we come to the question posed to me by the noble Lord, Lord Campbell. We are all being subjected not only to our domestic legal systems, but also to a developing international legal order, and people with no pretension of being international lawyers debate whether a particular war is a lawful war.

Even that dilemma is not new. Martin Luther addressed it when he said that there was no blame attaching to participation in an unjust war, unless it was manifestly unjust. That may not necessarily be persuasive to everyone. Napoleon said that questions of theology were for the next world. But von Moltke said that he opted for what he called,

"an army which does not deliberate".

That has sometimes been misunderstood. What he meant was not that the military should be unrestrained but that it should carry out the instructions of the civil authority without question. There we find ourselves perhaps parting company with some of our friends. Even the instructions of the civil authority are not ethically conclusive. Someone may say, "Even if my Government command me to do something, that does not necessarily silence my conscience". In the last resort we cannot pass responsibility for our actions on to the shoulders of others.

There is a precedent within our own history. In 1911 the Government were confronted with something like a mutiny when our forces in Ireland were faced with instructions to suppress Protestant resistance to the partition of Ireland. In fact the matter was resolved not by prosecuting anyone but by all sides using common sense. The dispute was not about what the law provided but about how far an individual conscience should be stretched. Whether we would agree with the senior officers who question the instruction is not relevant. Most of us have a sticking point.

The United States has been confronted with this problem more than once in recent years. Young people were troubled about the legality and the morality of the war in Vietnam, and many were charged with desertion. The position was considered by the Supreme Court in the case of Thier-Vaughn, which was a refusal to participate in the Desert Storm operation. The court ruled on that occasion that it could not question matters of foreign policy. It said that they were not justiciable.

That view is understandable. It has been frequently shared by the courts in this country. They have repeatedly declared their reluctance to review decisions by the Executive in the field of foreign relations, but to an increasing extent international relations are impinging on the concerns of private citizens and subjecting them to decisions about the proper course of action. We are passing into an era where the doctrine of sovereignty is increasingly under examination and the attitude of domestic courts to diplomatic decisions may need to be reviewed in the not too distant future.

I invite your Lordships' attention to yet another problem. Must the civil authority always have the last word? What is a soldier to do if faced with conflicting orders? What if there is a military insurrection and a general, intent on overthrowing the civil Government, orders a colonel to occupy the presidential palace? It is not a practice to be encouraged, but sometimes we may even have approved of such an action by the military. General Pinochet declared that any action by the military to check the killing and the disappearances he was ordering was "unprofessional". We may take leave to disagree with him.

What would we say of action by the military to replace the regime in Zimbabwe? In words that have expressed the heart-searching of a whole generation, "It ain't easy, kid". I suspect that we could embark on a long debate about the ethical implications. I appreciate the dilemmas which the amendment raises, but we are considering a young person who, by definition, has wrestled with his or her conscience and decided that whatever the consequences for themselves personally, they cannot transfer their personal responsibility to others. By definition, we are talking about those who are the best, most responsible and most unselfish of a generation. To subject such a person to the full range of military penalties is not something to embark on lightly.

In all my years working with Amnesty, I was repeatedly assured that this country had no prisoners of conscience. What else would such a person be? I confess that I have hesitated about this but, when the chips are down, I support the amendment.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence 4:15 pm, 31st October 2006

My Lords, as I said in Committee, Amendment No. 14, tabled by the noble and gallant Lord, Lord Craig, brings clarity to the desertion provision in the Bill. The provision was clear before in previous legislation. I have read in detail the Minister's remarks in response in Committee but I still do not understand the advantages that the new wording would give us.

There is the idea that the new wording will in some way constrain the offence so that it applies specifically to active service. Our Armed Forces today may not always be in the theatre of operation, but they are all participating in contributing to active service. It seems that, in order to make those constraints, the government proposals are trying to define things too neatly and finely. There was clarity before. So I support the amendment of the noble and gallant Lord in all but one respect, which is covered by my amendment, Amendment No. 19—that amendment will of course fall if we agree to Amendment No. 14, but I give notice that I will return to the question of the maximum punishment if Amendment No. 14 is agreed to today.

I will not prolong the debate on AmendmentNo. 18, to which I have added my name. We have heard cogent arguments from the noble Lord, Lord Judd, and the noble and learned Lord, Lord Archer of Sandwell. There are concerns that need to be addressed when we describe responsibilities under international law. The noble Lord, Lord Judd, made the important point that we are legislating for unknown futures. I welcome the fact that, in the same way, if the amendment of the noble and gallant Lord, Lord Craig, is accepted, we will have another opportunity at Third Reading to consider Amendment No. 18.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, I follow my noble friend Lord Garden in congratulating the noble Lord, Lord Judd, on his usual passionate espousal of the rule of international law. I also congratulate the noble and learned Lord, Lord Archer of Sandwell, whom we have missed in our deliberations, on a very thoughtful and wide-ranging speech—ranging not only into history but internationally.

Both noble Lords made the point that, inClause 12, the offence is refusal to obey a lawful command. It is therefore a defence to that charge to say that the command was not lawful. Why, therefore, should it not be a defence to a charge under Clause 8 that the operations referred to were unlawful? I appreciate the position that has been so fervently expressed by the noble Lord, Lord Campbell of Alloway, who takes the view that the Attorney-General is the final arbiter of whether the actions or operations are lawful. I do not accept that. I believe that it should be justiciable. Just as it is possible for a defendant to a charge of refusing to obey a lawful command to argue in a court for a decision that the command was unlawful, it should be possible—

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, what is really worrying me is that there is a convention on Report that one does not go in for a long histoire of matters that have already been debated. I have tried to be brief. I shall not take any more time, but I do not think that it is right to resuscitate matters that have been debated at great length in Committee.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, I beg to disagree. Although it is right that we should confine ourselves so far as we can on Report, the principles behind a particular issue become clearer as the debate goes on. The importance of those issues is also highlighted. So it is here. Where we are dealing in essence with a constitutional matter, it is important that it should be expressed, particularly if we are going to vote on the matter, which we did not do in Committee.

The Crown's prerogative—used to declare war, to send our troops into operations, and so on—must at the end of the day be subject to scrutiny. If the exercise of that prerogative is illegal, the domestic courts of this country should be able to say so. It is not a question of the particular defendant, when he deserts or refuses to obey a command, getting a book on international law to see what the situation is; it is a question of whether, later in the courtroom, he can argue legality or illegality before the people who are charged with deciding such questions properly, should Her Majesty's judges decide whether Her Majesty's Ministers have taken a legal action.

I fully support Amendment No. 18. Although Amendments Nos. 15 to 17 are listed in a later group, I shall not address your Lordships any further in the subsequent debate.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, we have sought in Clause 8 to modernise and limit the offence of desertion. The first change that we are making is to remove the current maximum penalty of life imprisonment for all cases of desertion. This maximum was applied to all desertion cases by the Armed Forces Act 1971. The second is to remove the test for desertion or absence without leave to avoid any service overseas or when before an enemy, and to replace it with the narrower test of avoiding "relevant service", which covers the sort of service that is often called "active service".

The noble and gallant Lord, Lord Craig, and the noble Lord, Lord Campbell, have asked why perfectly good drafting in the current discipline Acts should be changed. The changes to the drafting have two aims. The first is to limit the offence—we do not think that it is right that there should be a specific offence to avoid any service overseas. The second is to limit the circumstances in which a maximum sentence of life imprisonment is available. We therefore could not leave the offence as it is. The current offence is too broad but, because it is broad, it has the attraction of being stated briefly.

We believe that it is right to make the changes that I have mentioned, but I recognise that it has resulted in complexity. The noble and gallant Lord, Lord Craig, has been unflagging in his efforts to persuade me that we could do better. His drive to achieve plainer English for our Armed Forces is to be commended, and I must say that, on further reflection, I think that he has a point. I have therefore decided to have one last look at the drafting of Clause 8 with a view to simplification. I think that we should be able to achieve an improvement and I hope to bring forward a simplified version of the clause at Third Reading.

However, I do not think that it would be right to accept the substantive changes provided for in Amendment No. 14. The maximum of life imprisonment will be limited to desertion to avoid "relevant service". It is intended to cover those situations where it is particularly serious for a serviceman to go absent. This is where a serviceman goes absent without leave to avoid the sort of particularly dangerous and demanding service that is often broadly described as "active service" and where everyone's contribution is especially important. It covers operations against an enemy, overseas operations for the protection of life and property, and military occupation of a foreign country. We retain the maximum of life imprisonment for desertion to avoid service of these types.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence 4:30 pm, 31st October 2006

My Lords, I have not yet spoken to my amendment about life imprisonment. It is in a separate group.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, I thank the noble Lord. The noble and gallant Lord, Lord Craig, asked two questions about the definition of "relevant service". The first is about the meaning of operations,

"for the protection of life or property".

The second is about the meaning of "military occupation". Those expressions have very well established meanings and are used in the current definition of "active service" in each of the current service discipline Acts.

An operation to protect life and property simply refers to where our Armed Forces may take part in operations abroad in response to a threat to people or to physical property of any sort, so long as the threat is great enough to justify the operation. Clear examples of this would be operations to evacuate civilians and safeguard their property in the event of a national disaster or a local conflict, such as occurred respectively in Montserrat or more recently in the Lebanon. The definition of "property" in the Bill, like that in the existing Acts, relates to clauses dealing with property in the UK, and so does not apply to this clause, which specifically relates to operations overseas.

Military occupation involves the idea of control. It is therefore limited to where our forces, perhaps with allies, have established military control of a foreign area or country whether or not there are also civilian authorities. It does not therefore cover a situation in which we are present abroad either fighting to establish control or where we are there at the request of the foreign Government. For example, before reunification our Armed Forces in Berlin were one of the occupying forces. But in West Germany our forces were of course not in occupation of the country. On that basis, I hope that the noble and gallant Lord will withdraw his amendment.

Under Amendment No. 18, it would not be desertion to go absent without leave to avoid service in a military occupation unless that occupation was fully in accordance with international law. We expect all members of the Armed Forces to be aware of their personal responsibilities under international law. They are trained in such important matters as the respect for property and the proper treatment of prisoners, enemy wounded and civilians caught up in the conflict. These personal responsibilities are ones for which a deliberate breach brings criminal liability.

However, the decisions to go to war and to occupy a foreign state are matters for government and Parliament, and are subject to democratic accountability. I would add that even Governments and Parliament find the issues of what international law requires or prohibits extremely difficult. I therefore believe that it would be wrong in principle to remove from members of the Armed Forces their obligations where they consider that an occupation is not in accordance with international law.

There is another reason. Of course it is right that members of the Armed Forces, like all citizens, should consider the rights and wrongs of operations in which they take part. They should exercise their democratic rights on the basis of what governments expect them to do. But it is another thing to provide that a member of the Armed Forces may in such a situation simply desert his colleagues and his duties. That in my view is the wrong thing to do. I believe that nearly all members of the Armed Forces would agree. To allow it would be tantamount to telling all other service personnel who stayed to do their duty that they were misguided. I cannot imagine what effect this could have on morale and on operational effectiveness.

My noble friend Lord Judd has asked why Clause 1 refers to international law. He pointed out that the clause makes it an offence for service personnel captured by an enemy to assist the enemy in any way,

"not authorised by international law".

He said that this would require the prisoner to consider what international law requires and asked what objection there can therefore be to allowing members of the Armed Forces to decide whether an occupation is in accordance with international law. I have already indicated where I believe the difference lies. The responsibility for undertaking operations is not on the individual; it is a responsibility of states and a matter for democratic control. Captured members of the Armed Forces should not generally assist the enemy, and Clause 1 rightly makes that an offence. But the Geneva Conventions recognise that captors may require prisoners of war to do certain types of work, so it would be quite wrong for a prisoner to be guilty of assisting the enemy where he has simply done what international law allows his captors to require him to do. Our personnel are trained on their rights if captured and they will know when they may be required to work.

My noble and learned friend Lord Archer of Sandwell asked whether a soldier can disobey an order to commit a crime. On this point I can give a reassurance to my noble and learned friend—a serviceman does not have to obey an order to commit a crime. However, Amendment No. 18 is different; it is not about crime. It allows a soldier to desert if he is serving in occupation of a foreign country and that occupation does not have the full backing of international law.

I hope that, with the explanations and reassurances that I have given, the noble and gallant Lord will be persuaded to withdraw his amendment.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

My Lords, I should like to thank the Minister most sincerely for the way in which he has sought to reconsider Clause 8. I accept that more work needs to be done on it, but in the mean time I should just like to put on the record my warm appreciation of the way in which the Minister has responded to the points that I have made both on this clause and on an earlier one. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

[Amendments Nos. 15 to 18 not moved.]

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

moved Amendment No. 19:

Page 5, line 19, leave out "life" and insert "ten years"

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I raised my concerns in Committee about what I saw as the draconian maximum sentence for desertion. Given that the Minister has said that he is going to think again about this clause, I am in two minds over whether to pursue at this stage the amendment before us. On the other hand, he let slip in his response to me that even when he has considered it, he is going to leave life imprisonment as the maximum sentence. So it is probably worth dealing with the issue while we can on Report.

We are no longer in the day of the press gang or of keeping our people in by fear of retribution; we have an all-volunteer force. Indeed, as I pointed out in Committee, the maximum punishment is so great that commanders fear to press desertion as a charge and put forward absent without official leave instead, however long people spend away. Even on the rare occasions when charges are pressed, the punishment tends to be measured in days of detention rather than years of imprisonment. So we have an offence with such a heavy possible maximum punishment that it is not going to be used. That is a matter of concern.

One new factor is that, since we debated this matter in Committee last July, the Government have brought to the House amendments to rectify the use of another excessive punishment, which at the time included desertion as one of the causes. I am talking about World War I. Then, of course, the maximum punishment was the death penalty; today, the maximum penalty available is life imprisonment. It seems that we need to learn something from this. We had to do some very curious legislative work in order to provide limited pardons for those who were executed during World War I, some for desertion. It seems that we are again just trying to replicate legislation without thinking about the circumstances.

I was pleased that the noble Baroness, Lady Dean of Thornton-le-Fylde, spoke so strongly in support of a maximum of 10 years rather than life imprisonment when we considered this in Committee. She has added her name to my amendment and it is to her regret that she is overseas and unable to speak to it. She said in Committee:

"We are talking about proportionality, and it is not proportionate to issue a life sentence for desertion".—[Hansard, 24/7/06; col. 1632.]

If you look at the other offences where one haslife sentences or sentences of 10 years, you see that10 years fits much better in this case. I have decided to pursue the amendment today. I beg to move.

Photo of Lord Astor of Hever Lord Astor of Hever Deputy Chief Whip, Whips, Shadow Minister, Defence, Shadow Minister, Foreign Affairs, Shadow Minister, International Development

My Lords, we cannot support the amendment. As the noble Lord, Lord Garden, acknowledged in Committee, recently a full life sentence has been used very sparingly in desertion cases. None the less, it remains a crucial sanction to retain. We have heard many times in this House how discipline is central to the success of our Armed Forces. Desertion has been identified as perhaps the biggest threat to discipline and is among the worst offences as viewed by fellow soldiers. Service men and women need to be able to rely on one another absolutely. In some cases, the potential threat of life imprisonment is essential to ensure that soldiers continue to carry out their duty while on dangerous operations. As the noble Lord, Lord Judd, said earlier, a key person deserting could have huge implications for an operation.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, as I have already said, in Clause 8 we have sought to modernise and limit the offence of desertion. One of the changes that we are making is to remove the maximum penalty of life imprisonment for all cases of desertion. This maximum was only applied to all desertion cases by the Armed Forces Act 1971. We recognise that in some cases it is not appropriate for an offence of desertion to carry the maximum penalty of life imprisonment. However, we are not persuaded that in the most serious cases—that is, when a serviceman is on relevant service—he should not face the possibility of life imprisonment.

"Relevant service" is the kind of service in which all involved need to be able to rely completely on everyone else involved—a reliance and trust that are undermined where a member of the service leaves his colleagues without permission. It is also the kind of service in which the success of an operation can depend on every member of the force involved. As I said on 24 July, leaving your mates in the lurch at the time they need you most by deserting in the face of dangerous operations is viewed in the Armed Forces as just about the worst thing you can do.

I have listened carefully to the arguments that have been made both today and in Committee on this matter, but I do not think that the case has been made for the reduction in the maximum sentence envisaged in the amendment. In such circumstances, a maximum sentence of life imprisonment may be appropriate in an extreme case and should be available as a maximum for a court martial. I trust that the noble Lord will see the requirement for retaining the sentence of life imprisonment in the limited circumstances in which it will continue to be available and understand why I cannot support the amendment.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I thank the Minister for his not unexpected reply. I do not doubt that in the past his predecessors said the same about execution being the best way to encourage the troops to do their job. One has to make a judgment about what is proportional—and life imprisonment is not proportional, in my view, in this case. I would like to test the opinion of the House.

On Question, Whether the said amendment(No. 19) shall be agreed to?

Their Lordships divided: Contents, 60; Not-Contents, 208.

Division number 2 Private Parking: Ports and Trading Estates — Armed Forces Bill

Aye: 58 Members of the House of Lords

No: 206 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Clause 17 [Disclosure of information useful to an enemy]:

[Amendment No. 20 not moved.]

Clause 20 [Unfitness or misconduct through alcohol or drugs]:

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence 4:56 pm, 31st October 2006

moved Amendment No. 21:

Page 9, line 30, after "orders" insert "or advice"

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, the Minister wrote to me on 24 October in the light of our discussion in Committee about unfitness or misconduct through the use of drugs. I raised two separate issues in Committee: first, the question of advice from a senior officer or senior member being the reality rather than an order; and, secondly, performance-enhancing drugs.

My Amendments Nos. 21 and 22 deal with advice. The Minister in his letter told me that there is really not a problem. He says:

"This is something we believe should be controlled by clear instructions to service personnel not to advise others to take drugs without having medical advice to that effect. We do not believe therefore that this is a problem in practice".

I hope the Minister will tell us how often, and in what form, these instructions are issued. In my 32 years of military service I cannot recollect having received any instruction of that kind.

The letter goes on to say:

"That said, each serviceman is expected to exercise some personal responsibility for his own intake of drugs. In considering whether to take disciplinary action, the respective rank of the individual who took the drug and the person giving the advice would be taken into account".

Perhaps the Minister will explain what he meant by that. If a junior soldier is advised by a sergeant and accepts the advice, is he charged? If the advice comes from a warrant officer, is he not charged? That seems a curious practice. We are putting an unfair burden on our troops if we are asking them to make that sort of informed decision.

The letter says that performance-enhancement drugs are,

"a developing area of research, and at present we do not sanction their use by service personnel", although I note from col. 269 of Hansard of11 October that the noble Viscount, Lord Slim, said in Committee that he has on operations carried a pill in his pocket in times of dire trouble.

We have a problem with the definition of performance-enhancing drugs, and I do not believe the Minister has provided the necessary assurances for a Bill that is about how we will deal with them. He says that such drugs are not sanctioned "at present", which presumably means he is keeping his options open. His letter goes on to say:

"In our view it would be improper to give any such order in respect of any performance enhancing drug which carried any risks whatsoever".

Again, I am not sure that that fills me with confidence. The question is: to whom would the risks apply? Presumably, the purpose of taking a performance-enhancing drug is to increase the risks to the enemy. It may have minimal risks to the person who takes it, but what about the risks to the person's colleagues and allies? In Committee I referred to the effect of performance-enhancing drugs on air crew members involved in friendly fire incidents.

Even following the Minister's helpful and full explanatory letter, I remain concerned that we do not seem to have made much progress on how we address the issue of performance-enhancing drugs. I beg to move.

Photo of Lord Astor of Hever Lord Astor of Hever Deputy Chief Whip, Whips, Shadow Minister, Defence, Shadow Minister, Foreign Affairs, Shadow Minister, International Development 5:00 pm, 31st October 2006

My Lords, I am grateful to the noble Lord, Lord Garden, for again giving the House the opportunity to discuss this important issue. Amendments Nos. 21 and 22 seem to constitute a valuable change, which takes account of the realities of operations. I am also sympathetic to Amendment No. 23.

Photo of Viscount Slim Viscount Slim Crossbench

My Lords, I am grateful to the noble Lord, Lord Garden. My previous remarks on performance-enhancing drugs and the very few occasions on which they might be needed are probably covered by Clause 20(2)(a), which stipulates that a drug should be,

"taken or administered on medical advice"— one would get medical advice—

"and A [a person] complied with any directions given ... of that advice".

I do not have a problem with that provision.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, Amendments Nos. 21 and 22 seek to make it a defence that a drug was taken on the advice of any superior officer. These two amendments are unnecessary as the situation which I believe the noble Lords are concerned about is where a superior officer advises a serviceman that he should take certain drugs to guard against the effect of chemical or other weapons. If a superior officer advised a serviceman to take such drugs, he would do so on fully considered medical advice. For this reason the serviceman would have a defence to a charge of unfitness through drugs by virtue of subsection (2)(a) if,

"the drug was taken or administered on medical advice and [he] complied with any directions given as part of that advice".

I am confident, therefore, that the clause contains safeguards that address the concerns that noble Lords have raised. I urge the noble Lord to reconsider the amendment.

In my letter I made the point that it is important that the advice is given through the chain of command. The chain of command would therefore give the advice based on considered medical advice given to it.

Amendment No. 23 provides for an additional requirement when administering drugs for "operational performance enhancement" reasons. I take on board the noble Lord's point about the potential development of such performance enhancing drugs. I have considered the matter further. It is important to state specifically that the drug must be authorised by the Secretary of State and requires the written consent of the individual.

There is no policy specifically relating to the authorisation of so-called performance-enhancing drugs. Indeed, we have no agreed definition of what constitutes such a drug. This is a developing area of research and at present we do not sanction their use by service personnel. I believe that the concern is that in the future members of the Armed Forces might be required to take them. As the noble Lord says, this Bill looks to the future and therefore we should think about that matter. We have thought about it. The important point here is that, were we to move in this direction, such drugs would be subject to the current arrangements that cover all drugs. Singling out performance-enhancing drugs is neither helpful nor necessary. No matter what its purpose, each drug should be looked at on its own merits through a medical assessment of the risks and benefits. The assessment would then be made of whether it would be beneficial, or indeed lifesaving, to the servicemen.

Normally, as I have said, drugs are administered to members of the Armed Forces on the basis of advice, considered medical advice and then informed consent. Personnel would not normally be ordered to take drugs. If they were to be ordered to take drugs, that would be done only with the express agreement of the Secretary of State acting on legal and medical advice. Apart from the difficulties of the definition of performance-enhancing drugs, I do not see the need for a specific clause about them. I hope that reassures the noble Lord.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I am grateful to the Minister for the very helpful response to both questions that I raised. I take his assurances on my first two amendments on advice. I would welcome some clarification in writing perhaps about the question of relative rank, because I have not quite got my head around that yet.

We have had a useful exchange on performance-enhancement drugs. I accept that we are looking at an uncertain future, and the noble Lord has given some assurances about how these drugs will be handled. The only thing that concerned me slightly was that he appeared to want to lump performance-enhancing drugs into the same category as those that either cure illness or prevent infection and the like. There are wider arguments, but this Bill is not the place for them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 22 and 23 not moved.]

Clause 24 [Damage to or loss of public or service property]:

[Amendment No. 24 not moved.]

Clause 31 [Hazarding of ship]:

[Amendment No. 25 not moved.]

Clause 32 [Giving false air signals etc]:

[Amendment No. 26 not moved.]

Clause 36 [Inaccurate certification]:

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, I shall speak to Amendments Nos. 27, 28 and 73. AmendmentsNos. 27 and 28 respond to concerns raised in Committee that the offence of inaccurate certification was too narrow. I undertook to look at this again, and I have done so. Similar concerns were raised when the Bill was scrutinised in another place.

The offence of inaccurate certification is committed if a service man or woman signs a relevant certificate without ensuring its accuracy. Relevant certificates relate to Her Majesty's ships, aircraft and aircraft materiel. The amendment would provide for the extension of the offence of inaccurate certification to prescribed equipment. I am grateful to the noble Lord for pushing me to further consider this. The point that he made about equipment on land vehicles relating to identification of friend or foe was a very cogent argument. There is, however, a balance to be struck between extending the offence to all service materiel, which would be excessively bureaucratic, and ensuring that it can cover equipment that has the same sort of significance as is already covered on sea and air platforms. I have just given the example of IFF.

Putting a list of descriptions of equipment in the Bill would be too inflexible and would not take into account changes in technology. The amendment therefore provides for the Defence Council to prescribe the descriptions of equipment to which the offence applies. Amendment No. 73 to Clause 373 requires these Defence Council regulations to be made by statutory instrument. That provides the appropriate level of scrutiny while ensuring the services retain the central voice over which equipment is described for this purpose. The services have been consulted about this and are content with the proposal that I have brought forward. I am grateful to noble Lords for highlighting this issue, and I hope that the amendment meets with your Lordships' approval. I beg to move.

Photo of Lord Astor of Hever Lord Astor of Hever Deputy Chief Whip, Whips, Shadow Minister, Defence, Shadow Minister, Foreign Affairs, Shadow Minister, International Development

My Lords, these necessary amendments extend the scope of Clause 36 and the offence of inaccurate certification to beyond ships and aircraft. We argued for that change in Committee and I am grateful to the Minister for his response. Although Amendment No. 28 is perhaps vague at first glance, I fully accept his argument in favour of flexibility and I am pleased that he has left it to the Defence Council to prescribe descriptions of equipment to which the offence will apply. That will allow the Armed Forces themselves to influence which equipment is covered by the offence. Therefore, we welcome and support these amendments.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, We, too, welcome the amendment. The Minister wrote to me on 23 October to explain how he had taken on board my concerns expressed in Committee about the narrowness of the inaccurate certification clause. I am pleased that he has brought forward these amendments, which will allow the regime of certification to meet future challenges.

However, the annexe to the Minister's letter stated that the situation remained that testing and checking of all land equipment did not involve a formal certification procedure and that such a procedure would not be practical or useful. I understand that the Minister believes that he needs to look at the issue on a case-by-case basis, and that is important, but the letter gave the impression of there being closed minds within the land systems staff. As the services work more closely together, they need to pick up best practice from each other. Lives depend as much on proper servicing and checking of audit systems on land as on the sea and in the air, where the services have been more practised in that.

I welcome these amendments, but perhaps the Minister might wish to keep an eye on this matter, outside the confines of the Bill.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, the noble Lord is right to be alive to the nuances of such language. I am focused on this area and recognise, given the changing technology of our land systems, that these issues are as relevant to complex land systems as they are to the maritime and air environments. I shall keep my eye very carefully on them.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I, too, am grateful for the amendment. One of its advantages is that most people in the Armed Forces will not bother to look at the Defence Council regulations, but it will concentrate their minds in that they must not sign a false certificate.

On Question, amendment agreed to.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

moved Amendment No. 28:

Page 16, line 14, at end insert "; or

(d) any equipment of a description prescribed by regulations made by the Defence Council."

On Question, amendment agreed to.

Clause 38 [Other prize offences]:

[Amendment No. 29 not moved.]

Clause 30 [Allowing escape, or unlawful release, of prisoners etc]:

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

moved AmendmentNo. 30:

Page 18, line 34, at end insert-

"(1A) A person shall not be charged with an offence under this section committed in the United Kingdom if the corresponding offence under the law of England and Wales is treason, murder, manslaughter or rape.

(1B) Where the corresponding civil offence is murder or manslaughter, an offence under this section shall be deemed, for the purposes of subsection (1A), to have been committed at the place of the commission of the act or occurrence of the neglect which caused the death, irrespective of the place of the death."

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, although the amendment is grouped with Amendments Nos. 31 and 35, they relate to three separate and important issues. If noble Lords, in particular the noble Lord, Lord Campbell, will forgive me, given that things have moved on since Committee, I think that it is necessary to spend some time considering these amendments.

Amendment No. 30 simply repeats the provision in the Army Act 1955 that:

"A person shall not be charged with an offence under this section," which relates to the military charge for committing a civil offence,

"committed in the United Kingdom if the corresponding offence under the law of England and Wales is treason, murder, manslaughter or rape".

Noble Lords who were here when we debated this matter in Committee may recall my comment in withdrawing the amendment that I had not heard any reason from the Government as to why a change as dramatic as this was being made in the existing provisions.

I am grateful to the noble Lord, Lord Drayson, and to the Bill team, who, no doubt, assisted him, for writing to me extensively on 25 October. In particular, the justification put forward in the letter was that the present exclusions for "treason, murder, manslaughter or rape" committed in the United Kingdom were, he stated, "an historical anomaly". He went on to say:

"By this I mean that it is anomalous that the Service system can deal with very serious sexual offences committed in the UK but not rape; that they can deal with grievous bodily harm or official secrets cases in the UK but not manslaughter. And they can deal with very serious cases (carrying up to life imprisonment) for a number of offences committed within the UK (as well of course abroad). The list of exclusions is arbitrary".

Having had that letter from the Minister, I realise that it is an arbitrary list of exclusions. However, the answer is not to remove those exclusions but to extend the offences which, if committed in the United Kingdom, should not be subject to court martial. Thus, not only should a soldier or a civilian subject to service law not be charged with offences of treason, murder, manslaughter or rape committed in the United Kingdom, as at present, but, following the Minister's analysis, he should not be charged with any offence carrying a sentence of life imprisonment.

Perhaps I may explain to your Lordships that if a person is sentenced by court martial to more than two years' imprisonment, he is immediately thrown out of the services and will serve his sentence not in a military prison but in an ordinary prison as a civilian. If the sentence is life imprisonment, he then becomes subject to the regime for lifers within the prison and he will be subject to all the usual routines of parole and so on until his sentence is exhausted. So, if a soldier or civilian subject to service law is to be convicted of serious offences such as that and immediately lose his status, it seems right that he should have the opportunity of being tried in the Crown Court and not by court martial. Therefore, I propose to withdraw Amendment No. 30 and redraft it for the purposes of Third Reading to extend the list of offences that would be subject to ordinary trial.

The Minister also says—this is really at the crux of the matter so far as we are concerned—in his letter:

"I do not accept that a military system which is the equivalent of the civilian system must be the same as that civilian system in every respect. Our aim is to create a service system which is as good as the civilian system and which is appropriate for the services. It must be capable of operating in a service context and have due regard to that context".

I am sure that it is the Government's aim to try to bring the court martial system up to the standards of the civil system, as exemplified by trial by jury in the Crown Court. It seems to me that, if the Government were to accept some of the amendments that we have tabled, they would be some way along the line to improving the system. It has improved over the years but not as a result of the desire of any Government, whether this or any predecessor Governments; it has improved because of decisions of the European Court of Human Rights, which has pointed out in judgment after judgment that a fair trial by court martial has not been possible in important cases.

That brings me to Amendment No. 31. Although, as with all Bills, this Bill was certified by the Minister as complying with the European convention at the beginning of its passage, a decision of the European Court on Wednesday last week was fundamental. I pray it in aid in support of Amendment No. 31.

Your Lordships may recall that in Committee we discussed the case of Martin, in which I was involved. It went to the House of Lords and subsequently, in 1997, to the European Court. The judgment was delivered last Wednesday, just in time for this debate. That gives your Lordships some idea of the importance of the Human Rights Act—it was not available for the House of Lords' decision in 1997—in bringing the European Convention into British law.

This was the trial of a 17 year-old civilian, the son of a serving soldier, for murder. The trial took place by court martial in Germany because at the time of committing the offence his father was in the Army, stationed in Germany. By the time the trial took place, 12 months later, his father had left the forces and the young lad was taken back to Germany, having been on remand in this country, and he was tried there. First, the matter went to the courts martial appeal court in which the noble and learned Lord, Lord Bingham, who was then Lord Chief Justice, said:

"We have some considerable sympathy with the appellant's complaint"— that is, of an abuse of process—

"With the benefit of hindsight, it seems plain that the trial could have been conducted in England without undue difficulty. It would in our view have been preferable if this young appellant, whose subjection to military law was purely vicarious and involuntary, had been tried here with all the procedural safeguards which procedure in the ordinary criminal courts affords. We cannot, however, stigmatise these proceedings as abusive. They were strictly in accordance with a procedure prescribed by Parliament to apply in such cases".

As I said to your Lordships, the Human Rights Act had not been thought of when that case was heard in 1996.

When the matter went to the House of Lords, the noble and learned Lords, Lord Slynn of Hadley and Lord Hope of Craighead, expressed the view that the decision to prosecute the applicant, a civilian aged only 17 at the time of the murder, by court martial had been inappropriate. Again, the decision was that the proceedings were conducted within the rules laid down by Parliament and could not, therefore, be abusive.

It is very interesting to see what the European Court of Human Rights has made of this in its judgment which was published last Wednesday. An important judge in that court is Sir Nicolas Bratza, a very distinguished English lawyer who, when practising in this country, used to appear mainly on behalf of the Government. He has an impeccable background. The European Court went beyond children under the age of 18 to all civilians and decided:

"It is, however, a different matter where the national legislation empowers a military court to try civilians on criminal charges ... While it cannot be contended that the Convention absolutely excludes the jurisdiction of military courts to try cases in which civilians are implicated, the existence of such jurisdiction should be subjected to particularly careful scrutiny, since only in very exceptional circumstances could the determination of criminal charges against civilians in such courts be held to be compatible with Article 6"— that is, the article which requires a trial to be fair—

"The power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis".

It concluded that the complaint of young Martin was fully justified and upheld his appeal and awarded costs. There was a violation of the requirements of a fair trial. In the past few days, the European court has decided that that which is proposed in the Bill denies to a defendant a fair trial.

Bearing in mind the Martin case, my amendment is limited to a civilian under the age of 18 who is subject to service discipline. It suggests that no civilian of that age may be prosecuted before the court martial for an offence under this clause. The service civilian court should set up a proper system of juvenile courts, or something akin to them, which could deal with the under-18s. No more should youngsters who have not joined the Army, Navy or Air Force be hauled in front of a court martial, with all that that implies, but without, as the then Lord Chief Justice, the noble and learned Lord, Lord Bingham, said, the procedural safeguards that the Crown Court affords.

I say it loud and clear: we have moved a long way on courts martial. However, they are not the equivalent of a Crown Court jury trial with the procedural safeguards we have in this country. Still the Government drag their feet with this Bill in front of them. I do not suppose we will look at the issue again for 10, 15 or 20 years.

I hope that the Government can respond. They must respond to the European court's judgment. In his letter, the noble Lord, Lord Drayson, says that:

"Given the ruling of the European Court in Martin which we have received today I am sure you will understand if I confine my comments for now to these issues in relation to service personnel".

As your Lordships would expect, the Government were not able to respond so quickly, in relation to civilians, to a judgment delivered only last Wednesday. Again, that is why I will not be pressing Amendment No. 31 tonight, but I shall table it again at Third Reading. That will at least give the Government a little time to consider whether this Bill is not the ideal opportunity to respond to the concerns of the European Court of Human Rights.

I told your Lordships that these were three disparate issues. Amendment No. 35 is on a different, although not unrelated, issue. In 1861, 150 years ago, it was decided that the courts of the United Kingdom could try any British citizen charged with murder, even though that murder did not take place in the United Kingdom. Any British citizen may be tried for an offence committed abroad. All that Amendment No. 35 provides for is that, where the courts of the United Kingdom have such extra-territorial jurisdiction to try a service offence committed abroad, the defendant may elect to be tried in the United Kingdom.

All the opposition to our amendments has been along the lines that we must maintain disciplined services. I entirely agree with that aim. We should stop from time to time, however, and look at it from the defendant's point of view. That is what is missing. We have looked at the criminal court system in this country with the aim of ensuring a fair trial and doing what is right for the individual, and have tried to prevent the innocent from being convicted. Notwithstanding some of the recent measures by the Government that have weakened the position of the defendant in the British courts, we still look at it from the defendant's point of view. We should do that when considering a military system of justice, instead of always concentrating on the needs of discipline, morale and so on. We should look at whether a person charged with an offence before a court martial will get a fair trial. The European court has said, civilians will not except in the most unusual circumstances. I beg to move.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement) 5:30 pm, 31st October 2006

My Lords, this is an important matter, so I will speak to it in some detail. Amendment No. 31 seeks to prevent civilians who are under 18 being tried before a court martial. As the noble Lord, Lord Thomas of Gresford, said, on24 October the European Court of Human Rights gave its judgment in the case of Martin. We need to be clear what it decided.

As we have heard, the case was about the son of a serviceman who was tried by court martial in 1995 for the murder of a civilian in Germany. The court martial was subject to the same objections as were found to exist in the Findlay case in 1996, and which were remedied by the Armed Forces Act 1996. So it is no surprise that the European court also decided in Martin that the court martial was not compliant. The court did not decide that courts martial should not try civilians or that they should not try civilian juveniles, but it stated the important principle that a military jurisdiction should only be exercised over civilians if there are "compelling reasons" to do so. In Martin, there was the possibility of civilian trial in the UK, because the charge was murder. The European court did not decide whether there had been compelling reasons for a court-martial trial. It did not need to, because, as I have said, it decided the case on the basis that the court martial was not compliant. It did not go into what it thought would be compelling reasons. In the Martin case, the reasons for court-martial trial were mainly to do with the availability of witnesses, most of whom were German. But there were other factors.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, will the Minister accept that cases are being tried in this country in which witnesses are being brought from all parts of the world, including Iraq?

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, I accept the noble Lord's point. In the Martin case there were other factors. Besides his age, Martin was no longer subject to service law. He had been back in the UK for over a year and his father was no longer in the Army. The European Court of Human Rights commented that it had "considerable doubts" about whether it would have found the reasons for court-martial trial "compelling". I believe that we should provide for all civilians subject to service discipline to be subject toa system of investigation and trial which will apply the criminal law of England and Wales, which conducts its proceedings in English and which is ECHR compliant. This is especially important for contractors and others who increasingly accompany our forces on operations abroad.

The noble Lord, Lord Thomas of Gresford, this evening stated that civilians subject to service law should not be subject to trial by court martial for any offence in the UK carrying life imprisonment. I should make it clear that a civilian is never subject to service law for offences committed in the United Kingdom. That jurisdiction only applies to the services abroad.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, the amendment does not confine itself to civilians. It refers, as does the current Army Act, to serving soldiers or service personnel, as well as to civilians subject to service law.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, I am grateful to the noble Lord, but I thought that it was important to make that point.

It is in the vital interests of the services, the civilians who live and work with them and the civilian population among whom they operate that there is a fair and robust system of justice outside the United Kingdom to deal with offences by civilians, as well as service personnel. We must recognise that the use of civilians deployed with our Armed Forces has increased in recent years. This is the reason for our general approach in this area.

The largest constituency affected is our service families overseas. We realise that 20,000 or so children accompany them. This presents real challenges. We must accept, however, that from time to time these under 18s may commit serious offences against other service dependants or even against service personnel in UK service bases overseas. In these circumstances, as the noble Lords, Lord Borrie and Lord Kingsland, have said, the foreign local jurisdiction may be highly undesirable. Even if it affords a compliant court, it will not apply the law of England and Wales and may not conduct proceedings in English. I believe that we would be failing in our responsibilities if we did not provide that. Of course we must ensure that the court martial makes proper provision for juveniles and I know that judge advocates receive the same training as Crown Court judges in this respect.

Amendment No. 35 seeks to permit service personnel and civilians subject to service discipline to elect trial before civilian courts in the United Kingdom where those civilian courts have extra-territorial jurisdiction. I start by restating two key principles that underpin the Bill and with which, I am sure, no noble Lord would disagree. The first is that our Armed Forces require a separate system of military justice. The second is that the service system must underpin service discipline at all times. The military context in which offences occur is important in operational and non-operational environments. Although it is not absolutely clear, it appears that the purpose of Amendment No. 35 is to permit service personnel and civilians subject to service discipline facing the most serious criminal charges to elect trial before the civilian courts. It therefore undermines both the key principles just described. Giving such persons the right to opt out of the military justice system, which would be the effect of the amendment, would have a detrimental effect on its standing. It would suggest a lack of faith in the service system, and that the military context is not crucial to the handling of serious offences committed in the service environment.

I am convinced of the case for a separate military justice system. I recognise the importance of the military context. I believe that our military criminal justice system is competent and compliant. The military justice system is well able to deal with the most serious cases. The recent decision of the Judge Advocate General to appoint a High Court judge to a court martial and the willingness of service prosecutors from time to time to instruct civilian counsel demonstrates that, on those rare occasions when specialist experience is required, the military justice system can import it. The result is that the most serious and complex cases can be dealt with and the system, in turn, commands the confidence of the public and the Armed Forces. It is not hard to envisage circumstances where the interests of justice might be best served and victims' rights best protected by trying charges together. The amendment would prevent exactly that, where a series of serious criminal offences included some committed overseas. Similarly, if the alleged offences included both criminal conduct offences and service discipline offences, should the accused be able to force separate hearings? Again, that cannot be right. A key characteristic of the military criminal justice system is that it is able to conduct trials anywhere in the world. In recent years courts martial have sat in the United States, Belize and the Falkland Islands, and there is a trial pending in Brunei later this year. Trials overseas often make good legal as well as military sense. There are many reasons for a portable, effective and, of course, compliant court-martial system. Making that system a hostage to the preference of the accused in the way proposed would not work.

In response to Amendment No. 31, I have set out our position on civilians subject to service discipline, following the recent case of Martin. I believe that our military system is compliant and that it delivers a high-quality system of English law in the English language, anywhere in the world. However, if, on consideration, we need to make changes in the light of the judgment, we will do so. Powers already in the Bill make that possible. In doing so, we will take careful account of any requirement of compelling circumstances regarding the trial of civilians subject to service discipline. For the reasons I have given, I hope that the noble Lord will withdraw his amendment.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, the very point I seek to make is that the European court has held that the system is not compliant. It is not enough for the Minister to come here three or four days later and say "I believe it to be compliant" when the European court has held otherwise. It is therefore for the Government to make a proper response. For that reason I will not be pressing Amendment No. 31 tonight.

On the broader issues, of course I accept that there should be a military disciplinary system. I said in Committee that it is right that defendants should be tried in such a way overseas. The point about Amendment No. 30 is that it relates to offences in this country—murder and rape in this country. Why should a defendant, because he is a soldier as opposed to a policeman or a postman, find that somebody chooses to try him by a court martial rather than allowing him the greater procedural safeguards in the Crown Court?

The most obvious procedural safeguard, which we will debate shortly, is the requirement for unanimity in a jury or a majority verdict of 10 to two. As your Lordships are aware, in a court martial only a simple majority is required. If five officers sit they can decide guilt by three to two—or innocence by three to two if it comes to that. Similarly, if three are sitting they can decide on offences—to which life imprisonment is annexed for offences committed in this country, if the amendment to the Act that the Government propose goes through—by a simple majority.

Why should a serviceman, or a civilian subject to service discipline, be tried on these important issues for an offence committed in this country by a number of officers, with perhaps one warrant officer sitting in? Maybe we should go back to Cromwell's days. Maybe the court martial system is so great that we should get rid of juries altogether and have military commissions sitting all over the country deciding guilt or innocence. The fact that a person is a serviceman or the son, daughter or wife of a serviceman, should not mean that he is to be treated differently for an offence committed in this country. That is Amendment No. 30. I will come back to that because, as I said, I wish to broaden the area of the exceptions.

Amendment No. 35 extends slightly a provision that has existed in our law for 150 years, since 1861. No reason given by the Government for rejecting any of these amendments carries any logical sense other than to state over and over again that we must keep military discipline. That is not, in my submission, a proper way to approach legislation of this sort. I beg leave to withdraw Amendment No. 30.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 5:45 pm, 31st October 2006

moved AmendmentNo. 32:

After Clause 49, insert the following new clause-

Compliance with orders and rules of engagement

(1) A serviceman participating in armed combat or peacekeeping who has opened fire may not be convicted of murder, manslaughter or breach of international convention unless the intention not to comply with orders and rules of engagement is established beyond all reasonable doubt.

(2) For the avoidance of doubt, this presumption in favour of the serviceman includes mistake made in good faith."

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, in moving Amendment No. 32, which is supported by the noble Lord, Lord Ramsbotham, in its retabled form, I shall speak also to Amendments Nos. 33 and 34 in the group, which are not consistent with the intent of Amendment No. 32 and would inhibit the vital exercise of discretion of commanders in the field, and are not acceptable as conferring statutory force on rules of engagement.

To save time the argument that I deploy will be found in the speech of the noble Lord, Lord Drayson, in Committee on 11 October at cols. 296-97 and I have tried to cut my speech down. The intendment of Amendment No. 32 is to provide a defence under a new service law, as spoken to by the noble and gallant Lords at Second Reading, for the armed serviceman on active service who complies or intends to comply with his orders and rules of engagement. This amendment achieves that by a rebuttal of presumption in favour of the serviceman, which assuredly is no absolute defence, as was the proposal in old Amendment No. 61.

The rules of engagement as such do not have statutory force. The defence applies to trials for homicide or breach of international convention, either under the civil jurisdiction in exceptional circumstances or by courts martial.

This is a probing amendment for your Lordships' consideration, as spoken to by the noble and gallant Lord, Lord Inge, on Second Reading. This defence is but part of a fair and just regime which recognises the realities of armed combat and peacekeeping and can be trusted by the servicemen. The amendment acknowledges that rules of engagement, if written, are but a framework within which verbal orders and rules of engagement, which often form an amalgam, are given in context with a specific operation, whether on combat or peacekeeping, as spoken to by the noble and gallant Lord, Lord Bramall, on Second Reading, and assented to by my noble and learned friend Lord Mayhew of Twysden, who is in his place. The noble and gallant Lord said:

"Justice cannot be dispensed in a vacuum; it must depend on the circumstances prevailing at the time at the scene of operations and rules of engagement, if established".—[Hansard, 14/6/06; col. 242.]

The introduction of a new services law was heralded in the evidence of the Judge Advocate General, Judge Blackett, and was assented to by the noble and gallant Lord, Lord Boyce. It was the evidence given to a Select Committee of another place. It was referred to in the speech of the noble Lord, Lord Ramsbotham, on Second Reading at col. 252. It was also assented to by the noble and gallant Lords, Lord Guthrie of Craigiebank and Lord Vincent of Coleshill. I shall cite a small but crucial passage. The amendment is dependent only on the acceptance of a new service law—a military law. In another context, I think that the noble Lord, Lord Drayson, was speaking about that some moments ago. The noble Lord, Lord Ramsbotham, cited Judge Blackett, saying:

"There are cogent reasons for maintaining a unique system of military justice, separate and distinct from the civilian system. These are to . . . support operational effectiveness and morale . . . maintain discipline which is an essential element of command . . . reflect the special and unique nature of the Armed Forces, in which sailors, soldiers and airmen are required to use lethal force to support Government policy, to risk their personal safety, and to be prepared to lay down their lives for their country, and . . . extend the law of England and Wales to personnel serving overseas and outside the jurisdiction of the civilian courts".—[Hansard, 14/6/06; col. 252.]

That is the basis on which this House is, so to speak, built.

I shall cite two short passages from the speech made by the noble Lord, Lord Drayson, which support the principle of the amendment—there being as yet no provision in the Bill that gives effect to such appraisal. He said:

"In response to one of the important points made by the noble Lord, Lord Campbell, about the situation where a soldier makes a mistake, it is important for me to reassure the Committee that if a soldier acts in combat on his view of the situation, even if it is wrong, he will not be guilty of a crime. That is a fundamental principle, which we need to keep clearly in focus as we consider this matter".

In the other passage, he stated:

"The noble Lord, Lord Campbell, raises an important point when describing the similarity between orders and the detailed nature of rules of engagement. He has also emphasised the point to which I alluded at the beginning of my response, which is the importance of the intent to do wrong. The noble Lord is right. We have heard on the Floor of this House as we have debated this issue in the past how in combat this may be a split-second decision made in very difficult circumstances. I remember vividly the description that the noble Viscount made".—[Hansard, 11/10/06; col. 295-96.]

Unfortunately, the noble Viscount is not in his place.

Those are the sort of twin pillars. It now comes to give but one example where, had the amendment been in force and this defence available, it would have saved a conviction for murder. I shall take it shortly because it was dealt with at some length in Committee. If this defence had been available to the Scots Guardsmen, Fisher and Wright, they would not have been convicted of murder, as their evidence on oath that they intended to comply with the orders, rules of engagement and training—they were both pretty young, so training was relevant—was wholly accepted by the Army board. It is quite obvious that if they had had that defence open to them, it would have been very unlikely that they would have been disbelieved on their oath.

However, their only defence was self-defence—as to fear their murder by coffee jar bomb attack. That was rejected by the trial judge. There was no other defence. As it was a finding of fact, it foreclosed on any appeal to the Court of Appeal or application to the Appellate Committee of this House or to the CCRC to refer the case for reconsideration tothe Court of Appeal. A civil system of law had hit the buffers of its own making. The stain of a conviction for murder is indelible, unless there is fresh evidence. There was none. I beg to move.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

moved, as an amendment to Amendment No. 32, Amendment No. 33:

Line 2, at end insert-

"( ) The rules of engagement shall have statutory force."

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, on Amendments Nos. 33 and 34, your Lordships will recall that in Committee, a single amendment, Amendment No. 61, dealt with two related but distinct issues: that of an absolute defence and that of the legal status of rules of engagement. Those two issues were conflated in the amendment, which was, by our own admission, probing. What your Lordships have before you tonight is a line of amendments which separates them.

My noble friend Lord Campbell has dealt with the question of a defence and we have the text of his Amendment No. 32. I shall not add anything to what he has said—save only that my amendment to his amendment is not in any way intended to undermine the principle that he seeks to advance in your Lordships' House, but simply to suggest that orders ought to be seen in the context of rules of engagement, rather than vice versa. My noble friend may not be entirely convinced of that; but I do not think that the point is sufficiently important for me to take it beyond stating our difference.

Rather, I want to talk about the other aspect, which is the question of the status of rules of engagement. I put on record my gratitude to the Minister, who has helpfully provided me with an extremely perspicacious document produced by his officials in the ministry, who have clearly spent a great deal of time thinking about this matter. I am much obliged to him and to them for what they have done.

My amendments seek to meet the two primary criticisms that have been brought to bear on me from on high about enshrining the rules of engagement. The first relates to flexibility and the desirability of commanders being able to refashion and reformulate the rules of engagement, sometimes over a period of hours or within even smaller time limits. The second relates to confidentiality and the importance of the rules of engagement not getting into the hands of the enemy.

We have abandoned on Report the very specific drafting that we adopted in Committee, to say simply that,

"the rules of engagement shall have statutory force".

This, I submit, meets both the concerns expressed by the Minister. It does not matter how often the rules of engagement change in the course of an operation; whatever they happen to be at the relevant moment when the soldier's action is called into question, they will have statutory force. So it is not necessary to enshrine them in any document, although of course they will be in some documentary form in a unit or in some formation above a unit. Nevertheless, because the law requires them to have statutory force, they will, by that very requirement, have the force that I seek. It flows from that that, as there will be no publication of the rules of engagement, they will by their very nature be confidential. I therefore believe that the two objections made by the Minister do not apply.

Why is it so important to give rules of engagement statutory force? I need only remind your Lordships of the arguments that I advanced in Committee. There are primarily two such arguments. First, the new role that Article 7 of the European Convention on Human Rights plays in our law requires anyone contemplating an activity to know before he undertakes that activity whether he is likely to commit a crime. That applies precisely to a soldier on the battlefield, who needs to know what legal framework is brought to bear on what he can and cannot do. He needs certainty, or as near certainty as one can give—one cannot give absolute certainty. At the end of the day, even in the context of rules of engagement, he must, of course, exercise only force that is reasonable and apposite in the circumstances; but apart from that necessary common-law qualification, the rules of engagement provide him with a framework in which he can have confidence.

The other reason is particularly germane to the kind of operations that we undertake in Iraq and Afghanistan. Under the convention of the International Criminal Court, it is perfectly possible for a soldier to do something in breach of that convention which gives the state in which he is conducting his operations the right to try him for a war crime. As that is so, it is vital that a soldier knows exactly where he stands. I can think of no more serious threat to one of our soldiers abroad than the possibility of being tried for a war crime by a state that does not respect human rights. The rules of engagement give him a degree of certainty that otherwise does not exist.

I have no idea how the Minister will respond, but when this point was ventilated in Committee, I had a great deal of support from your Lordships, including the noble and gallant Lords, Lord Vincent of Coleshill, Lord Craig of Radley and Lord Inge, the noble Lords, Lord Ramsbotham and Lord Thomas of Gresford, and the noble and learned Lord, Lord Lyell of Markyate. All of them supported the idea that the rules of engagement should be given statutory form. In these amendments, I have tried to meet some of the criticisms of detail that were made and to provide something that protects flexibility and security but also gives the individual soldier the certainty that he requires. I beg to move.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 6:00 pm, 31st October 2006

My Lords, I am particularly anxious to get at least into the proceedings of the House, if not into the Bill, the last fourwords—"made in good faith"—in proposed new subsection (2) of Amendment No. 32, in my name and that of the noble Lord, Lord Campbell of Alloway. Noble Lords will realise that it is absolutely essential—this has been said many times, most recently by the noble Lord, Lord Kingsland—for a solder in an operational situation to have confidence in everything around him. He must have confidence in his chain of command, confidence that if he is wounded he will receive immediate and first-rate medical attention, and confidence that, if he is brought into a situation where he is required to take action that may result in killing someone or opening fire on people but where he acts in good faith under the orders that he has been given, he will be dealt with fairly and consistently under the law by that chain of command.

It is very difficult to describe "good faith" absolutely and precisely. In the same way, I am very grateful to the noble Lord, Lord Kingsland, for the way in which he described not the prescriptive nature of rules of engagement but the rules of engagement as a framework, whose statutory force, which again is not prescribed, is essential in order that our Armed Forces can have confidence that, if they act in good faith within that framework, they need not fear anything from the chain of command—or the legal chain of command, as it were—that goes with it. That is why I am pleased that the amendments in the name of the noble Lord, Lord Kingsland, stand with Amendment No. 32.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, these are ingenious amendments or, more accurately, a new clause and amendments. If they are carried, perhaps with a little alignment or tidying up, they will serve as a very present help in times of trouble. Properly understood, they would do so without impinging on the doctrine that being obedient to an unlawful order is no excuse. Nor would they breach the principle that disobedience to a lawful order should attract punishment. They would also provide a fair criterion for visiting a serviceman's conduct when engaged in armed combat with criminal liability in a proper case. This is a fair criterion, because it is realistic. If it were not realistic, it would not be fair.

There are circumstances that impose on a serviceman who is required to engage in armed combat a degree of stress that must be unique in any field of employment. Of course, it is possible even when engaged in armed conduct to behave in such a way that by any standard and by any criterion one is guilty of murder. No one suggests that that is not so. Equally, no one suggests that those circumstances are such that they always can properly lead to a conviction for murder. To put it another way, no one has suggested that the circumstances of combat are such that the offences of murder or manslaughter are legally incapable of being committed. They plainly are so capable. The amendments seem to address the availability of liability to conviction.

A point that has been made before more persuasively and vividly than I can make it is whether a soldier has done what he has done in the heat of action and in the fear of action, which is perhaps more important, or whether what he has done was in breach of the common law of manslaughter or murder. That cannot sensibly be determined by a fine examination of the matter months later in a prosecutor's office. The nearest thing to a bang that would be heard there is when Archbold's Criminal Practice falls off the desk. Still less can we realistically expect a soldier in action to perform this exercise for himself. Surely what the soldier steers by are his rules of engagement and the orders made pursuant to them, as has been pointed out by my noble friends Lord Kingsland and Lord Campbell of Alloway, which can and frequently are varied—and the latest version is all that the soldier can reasonably be expected to bear in mind.

I suggest that justice requires that the soldier knows when he is sent into action that his conduct will be judged thereafter by a test that is fair and simple, which should be something like this: "You are subject to the rules of engagement and rules made pursuant to them, and if you come through this action you will in any event be safe from prosecution provided that you have not deliberately set out to disobey any of them". The soldier will understand that: it is simple, clear and fair. That is the just way to order things. It will remove the lurking fear, which soldiers have spoken of so frequently and so recently—we have all read it—of a civilian prosecution process that is unfair because it fails to take cognisance of the exigencies of armed combat.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, we are very sympathetic with the thinking behind these amendments, although we are not very happy with the actual wording. It should be quite simple: if a serviceman acts within the rules of engagement, he will not be prosecuted—never mind convicted. He will not have—as certain servicemen have arising out of the Iraq conflict—years of worry that prosecutions are pending against him. It should be one of the foremost principles on which the Director of Service Prosecutions acts. He should consider, where the rules of engagement were conveyed to the proposed defendant, whether the defendant deliberately breached those rules and, if so, what the consequences of that were.

The noble Lord, Lord Ramsbotham, said that the question is whether the soldier acted in good faith. He pointed out that there are difficulties in defining "in good faith". The noble Lord, Lord Kingsland, said that a soldier should know where he stands. In the case of the paratroopers tried at Colchester last September—I declare an interest in that I was involved on behalf of one of them—it was apparent that no thought had been given in the prosecution to what the rules of engagement were at the time. The defendants were a platoon of soldiers who had been patrolling in the Maysan province. As far as they were concerned, they had been told by an officer, "Well, it's back to Northern Ireland rules now. We have just won this war". In fact, it was not and those were not the rules of engagement. The rules of engagement that were still in force at the time of the incident with which they were concerned were the rules of engagement that were employed on the invasion of Iraq—to seek out and destroy the enemy. That was the broad concept in operation, but the paratroopers thought that they should be acting like policemen in the role that they were familiar with in Northern Ireland. Your Lordships will remember that, for a time, berets were worn in an attempt to win hearts and minds in the southern part of Iraq. The situation was that they did not know what the rules of engagement were because the rules of engagement had not been conveyed to them.

Therefore, the Director of Service Prosecutions, when he is considering a prosecution, should think, "Did they know what they were supposed to do? Did they act in good faith within those rules or were they deliberately disobeying orders?". It is far better for the decision on whether to prosecute to be taken at that point than for a defence in the terms of this amendment to be discussed years later on whether the defendant had the intention not to comply with orders and rules of engagement when charged with murder, manslaughter or breach of international convention. We are not happy with the amendment because it looks at matters at too late a stage. The issues that the noble Lords, Lord Campbell and Lord Kingsland, have very properly raised should be considered when the decision to prosecute is made.

Photo of Lord Blaker Lord Blaker Conservative 6:15 pm, 31st October 2006

My Lords, I had not intended to intervene in this debate, but one point is not being sufficiently stressed. I was an infantry officer in a line regiment in 1944. I fought from Normandy to Belgium. During the last action in which I took part and was wounded, we were informed that there were no Germans on the start point of the operation. In fact, there were Germans at that start point, greatly to our surprise. If I ask myself whether I would have had time to think about the rules of engagement in that situation, I believe that I would have been shot, and so would some of my men. The decisions have to be made instantly.

Photo of Lady Saltoun of Abernethy Lady Saltoun of Abernethy Crossbench

My Lords, I, too, support the noble Lord, Lord Campbell of Alloway. I cannot help wondering whether, if our soldiers had had to go into battle fearful of shooting, even in self-defence, pulling their punches all the time lest they be tried for murder, we should have won two world wars. How, in the speed and heat of battle, as the noble Lord, Lord Blaker, has said, can a soldier have time to be certain whether he is being threatened? It is his life or his enemy's. It seems to me quite wrong to ask him to risk his life for his country with his hands tied behind his back, as it were. Under those circumstances, how can we be surprised if recruitment becomes rather sticky? I could not nowadays encourage my grandchildren to join the Armed Forces knowing what they could face when they come home.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, it would be difficult for me to overstate the importance of this subject, which is why we have had a number of briefings on rules of engagement during the debates on this Bill. I am very grateful to noble Lords who have attended those briefings and discussions that we have had in this House and at the Ministry of Defence. So I will speak at some length on this matter. As we have debated the Bill, there have been clear differences of opinion on a number of issues, but on the matter of rules of engagement there has been a higher level of misunderstanding across the House than on any other issue, which is why we in the Ministry of Defence have taken so much trouble to try to explain to noble Lords the practical purpose of rules of engagement. Perhaps I may expand on that a little.

Rules of engagement are key documents vital to the success of every operation. They are always classified to ensure that information about the way our forces will operate during a mission does not get into the public domain or into the hands of the enemy. Despite that, at a briefing held on 23 October for noble Lords, we took the unusual step of showing copies of actual rules of engagement for an operation. We did that to give noble Lords an opportunity to understand the way in which they are written, their complexity and their purpose. I think that those noble Lords who were able to attend the briefing found them illuminating and perhaps even surprising.

Rules of engagement give our commanders the political and military framework to achieve their mission, including limits on the use of force. They must be consistent with the law, of course, but their purpose and even their language is operational. Rules of engagement are and must be flexible. They must not and do not tie commanders' hands unnecessarily. They leave important decisions to commanders on the ground and those commanders need and value this responsibility. Rules of engagement are more often than not specific to individual missions. No two profiles are the same. Crucially, they can be modified quickly to meet the needs of a changing threat or a changing mission. Rules of engagement must retain these key characteristics. If they do not, it would damage our operational effectiveness. To give rules of engagement statutory force in the way suggested here would be prejudicial to those characteristics on operations.

Servicemen know that the rules of engagement will help them to conduct operations in a way consistent with the law, but each serviceman still has a responsibility to carry out his role lawfully. To that end, personnel rely on a combination of their training and detailed guidance. I shall address the points made just a moment ago by the noble Lady, Lady Saltoun, because she is absolutely right: it is vital for the individual soldier to have confidence in the basis on which he can operate so that, under pressure, he is able to make clear, split-second decisions with confidence and clarity. But giving statutory force to the rules of engagement is not the way to achieve it.

I recognise that Amendment No. 32 in the name of the noble Lord, Lord Campbell of Alloway, seeks to safeguard the position of soldiers in combat. It would mean that a serviceman who opens fire during armed combat or peacekeeping is not guilty of unlawful killing unless he intended not to comply with an order or rule of engagement. This defence is to apply where the serviceman has acted mistakenly but in good faith. I understand the intention, but orders and rules of engagement simply do not cover every situation in which a serviceman might open fire. I have tried to explain why rules of engagement should not be drafted to tell each soldier exactly what the law requires of him in every possible situation. To take a simple example, rules of engagement do not say, "Do not kill a prisoner"; that is a matter for training. So I return to the principle: do noble Lords want rules of engagement to be legal documents or operational documents? They cannot be both.

Amendment No. 33 would give all rules of engagement the force of law. It is a pity that the noble Lord, Lord Kingsland, was not able to attend the briefing on 23 October because we went into some detail on this point. As we looked at the detail of rules of engagement, it was clear how it would be inappropriate to give them statutory force. As I have said, they have an operational purpose and they vary between operations. The amendment would mean that the law would change both between and during operations; that is, changing as swiftly as the operational situation changes. It would create a position of legal encirclement of our Armed Forces in a way which, I am sure, the noble Lord does not intend.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, the noble Lord says that rules of engagement change and so they do, but what is the status of the yellow card that a soldier carries, telling him what he can and cannot do? Can he shoot to kill, or may he fire only in self-defence? These are important issues of principle. It is no good saying to a soldier, "We are giving you a card, but by the way, operational circumstances may cause these rules to change tomorrow".

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, I am grateful to the noble Lord and I will address his point in a moment. Rules of engagement may form a document many pages long and of some complexity, detailing the nature of the operation. The card sets out guidance to a soldier operating in certain circumstances which I will come to shortly. However, we should not confuse the yellow card, as it was known during operations in Northern Ireland, or card alpha, as it is sometimes referred to, with rules of engagement. One is a sub-set of the other and we should not use the terms interchangeably.

Amendment No. 34 would refine and limit Amendment No. 32. As I understand it, it would limit the defence under Amendment No. 32 to where there were rules of engagement which were relevant to conduct alleged. But the problems I have outlined in relation to Amendment No. 32 also apply here and, as I have explained, these are operational and not legal documents in their drafting.

There are vital points of principle here. How are our operations to be directed if every change in the mission framework has statutory force? What effect is that going to have on the officers drafting these operational mission frameworks? How is our criminal law to work if we purport to change it between and even during operations, and how are our servicemen to be trained in what the law requires? Nevertheless, I recognise the sincere aim of noble Lords in addressing this matter. I recognise that underlying these amendments is a matter which is of the greatest importance to this House, and as we have debated the issue we have heard how in operations, servicemen who are tired, perhaps under fire and therefore under considerable pressure, may have to make split-second decisions about when to open fire. As we have just heard from the noble Lord, Lord Blaker, from his experience, it is vital that our servicemen have complete confidence in their position so that they can make instant decisions in response to a situation, given the difficult circumstances in which they often find themselves. Given that, I welcome the opportunity to give the following assurances. Whether a serviceman who opens fire and kills someone is guilty of murder depends on his view of the situation at the time and what he does on the basis of that view. This applies both in combat and at any other time. For example, if a soldier opens fire because he believes that he is faced with an enemy combatant, he has not committed murder even if he has made a mistake. It is the honestly held view of the service man or woman which counts at all times but inany case, a serviceman can use lethal force against anyone who he thinks is posing an imminent threat to human life. Again, what matters is the honest belief that he has in making the assessment. This is the law of self-defence and no rules of engagement can interfere with that inherent right, as is explicitly stated on every rules of engagement profile.

I believe that their training reassures all service personnel that they may trust to their view of what is happening. I hope that my statement here will strengthen that confidence. We ask a great deal of our Armed Forces. In return we owe them not only our gratitude and support but must give them the confidence to carry out the demanding and dangerous tasks we demand of them.

No court martial has resulted from a combat incident in these last three demanding years of high- intensity operations. At the same time, I am very aware that one case has perhaps done more than anything else to create uncertainty in this House and perhaps elsewhere about the legal position in which servicemen might find themselves—the case of Trooper Williams. I do not wish to go over the details of the case again—noble Lords are already very familiar with it—but we have, as far as possible, ensured in the Bill that such a situation cannot recur. We have also sought to ensure that servicemen do not face investigation without good reason.

The Bill, therefore, makes three important changes. The commanding officer will no longer be able to dismiss a serious case so as to prevent further consideration by the service prosecuting authority. Clauses 125 and 127 provide that if the prosecuting authority decides not to charge, that authority will be able to direct that the accused is to be treated as acquitted. By such a direction, the Director of Service Prosecutions can bar prosecution in civilian as well as service courts. Lastly, commanding officers will have the general duty to ensure that allegations and evidence of offences are investigated appropriately. They will have a duty to make service police aware of allegations or evidence of serious offences, but they will only have to do this if the allegation or evidence is such as would indicate to a reasonable person that such an offence had been committed by someone in the CO's command.

The main provision is in Clause 113. We believe that this will allow commanding officers to exclude those incidents where there is simply no real evidence of a serious offence. None of us wishes to have a situation where personnel on operations face an investigation following incidents where they have acted entirely properly.

As many noble Lords will be aware, for almost two years now we have had in place in Iraq a post-incident procedure. This ensures that after shooting incidents where persons have or may have been killed or injured, commanding officers gather all available information within their unit and make an informed decision as to whether there is any evidence that an offence has been committed. If they conclude that there is no such evidence, they can recommend that a service police investigation does not take place. That recommendation is put to their chain of command for agreement. If the chain of command, which takes service police and service legal advice, agrees, the report is filed. This brings an early resolution to the vast majority of incidents. It also allows us to demonstrate that our commanding officers have made an informed decision and we have an audit trail of all incidents. Even when a commanding officer determines that an offence may have been committed, he is able to delay a service police investigation if the operational circumstances demand it. His recommendation to delay has to be agreed by his chain of command, also acting on service legal and service police advice.

This policy ensures, even in high-tempo security operations conducted in places such as Iraq, that commanding officers retain a proper discretion as to whether there should be an investigation. It also ensures that the very rare case in which there is evidence of an offence is investigated by service police, with the support of service prosecutors, as soon as possible. In this way, the operation of the military justice system determines, for example, whether a serviceman acted in good faith.

I can confirm that the post-incident policy has proved very successful—so much so that, at the request of our operational commanders, it has been adapted for use in Afghanistan. I can also confirm—this is very important—that the provisions in the Bill that I have described about the CO's role will support such a policy.

I have taken some time to set this out in some detail. These are vital issues of real importance to our Armed Forces. I hope that, as a result, members of the Armed Forces may continue to have confidence that the law takes full account of the extraordinary and dangerous requirements that they are expected to face. I hope that I have explained why—although I recognise their intention—these amendments would not be in the interests of the Armed Forces. On that basis, I cannot support them.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 6:30 pm, 31st October 2006

My Lords, I am very grateful to all noble Lords who have spoken. That is no mere trite acknowledgement; very valuable contributions have been made, including that of the noble Lord, Lord Drayson.

But it is very difficult to know quite how to approach what has been said. The fundamental conflict is that the noble and gallant Lords think there should be a new service law which recognises the realities of armed combat and which servicemen can trust—they have said so on Second Reading and on other occasions too—and the noble Lord, Lord Drayson, says, "No, we do not want that". The second form of conflict, which could be resolved, is that the noble Lord, Lord Thomas of Gresford, says, "Yes, perhaps we should do something about it, but we are not going about it in the right way"—a perfectly legitimate comment. My noble and learned friend Lord Mayhew of Twysden thinks we should do something about it and, naturally, would like to think again about how we are going to do it. Unfortunately, how we are going to do it, I am afraid, could never be agreed between the noble Lord, Lord Kingsland, and myself because we have a fundamental disagreement about statutory force, an issue which we cannot resolve. In that respect, I am basically on the side of the noble Lord, Lord Drayson. I quite agree that there are many principles at stake, but what are we going to do about it? Frankly, I do not really know, but I think something must be done.

I should say to the noble Lord, Lord Thomas of Gresford, that in the case of the Scots Guardsmen—I happen to know about it—the soldiers' orders that morning, a Scots Guardsman having been killed by a sniper the day before, were to stop and search. They had been trained with their rules of engagement to give the warning twice—"Stop or I'll fire". They had been trained to fire in a certain position, in a certain way, at a certain part of the body to kill or maim. That was their training. On the last occasion, General Sir Mike Jackson was sitting on the Army board. He cross-examined them in depth and was totally satisfied that they were telling him the truth. It is no use saying that if people comply with the rules of engagement, as the noble Lord, Lord Drayson, did, they are all right. The men did not have a defence—they were not all right. If they had had a defence, they could have avoided their conviction.

I will not take up more of your Lordships' time. I frankly do not know what to do about this, but I feel, like I think the majority do, that something has to be done. I will try and find out how to do it and will be withdrawing the amendment.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, Amendments Nos. 33 and 34 are amendments to Amendment No. 32 in the name of my noble friend Lord Campbell of Alloway. Although I do not in any way resile from what I said in support of them, I do not propose to press them. I beg leave to withdraw the amendment.

Amendment No. 33, as an amendment to Amendment No. 32, by leave, withdrawn.

[Amendment No. 34, as an amendment to Amendment No. 32, not moved.]

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I beg leave to withdraw the amendment.

Amendment No. 32, by leave, withdrawn.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

moved AmendmentNo. 35:

After Clause 50, insert the following new clause-

"EXTRA-TERRITORIAL JURISDICTION

Where the courts of any part of the United Kingdom have extra-territorial jurisdiction under statute to try, determine or punish any service offence committed abroad, the person accused may elect to be tried in the United Kingdom for the offence."

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, fifty-seven minutes have passed since I spoke to this amendment, but my determination to have the opinion of your Lordships' House on it has not diminished. Accordingly, I beg to move.

On Question, Whether the said amendment(No. 35) shall be agreed to?

Their Lordships divided: Contents, 59; Not-Contents, 134.

Division number 3 Private Parking: Ports and Trading Estates — Armed Forces Bill

Aye: 57 Members of the House of Lords

No: 132 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Clause 133 [Detention: limits on powers]:

Photo of Earl Attlee Earl Attlee Conservative 6:52 pm, 31st October 2006

moved Amendment No. 36:

Page 66, line 4, leave out "90" and insert "60"

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I shall speak to Amendment No. 37 as well. I moved an identical amendment in Committee.

My position is that the power to dish out 90 days' military detention summarily is just too much. I am not convinced that commanding officers want this power. It is not much fun exercising summary judgments and many commanding officers will be distinctly uncomfortable awarding more than 30, let alone 60 or 90 days' military detention, even if it can be awarded only using extended powers and with the prior knowledge of the defendant—a point of which I am sure the Minister will remind us—and even though the Royal Navy already has 90 days available for detention.

The House needs to understand that military detention is not some form of military community service but a severe but effective regime. The Minister will argue that the change is desirable because without retaining 90 days for the Royal Navy the number of courts martial might have to be increased. That is a fair point, but if the Army can manage with a maximum of 60 days, what is the Royal Navy doing wrong with its regime of military detention? It must be doing something wrong. Why cannot it achieve the desired corrective effect with only 60 days? I should be interested if the Minister could tell us how often Royal Navy commanding officers have been granted extended powers beyond 60 days.

The Minister will also argue that if the Army and Royal Air Force were granted the ability to award90 days with extended powers, they would be able to reduce the number of courts martial by increasingthe punishment available, because it would not be necessary to resort to court martial. But the argument would be more convincing if we saw Army commanding officers regularly seeking and using extended powers. One senior Army officer to whom I spoke last week said that he never sought extended powers when he was a commanding officer, and when he was a brigade divisional commander he never granted them. It would be helpful if the Minister could show some statistical evidence that the extended powers are currently being sought and used by commanding officers and of the extent to which the Royal Navy uses extended powers over 60 days.

Make no mistake—I was and still am prepared to exercise military discipline, but detention of over60 days is excessive. I beg to move.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I supported the noble Earl in Committee on what seemed a sensible amendment, seeking to harmonise detention powers to levels that have been perfectly satisfactory for the Army and Royal Air Force in the past. I look forward to hearing from the Minister how often the Royal Navy uses its powers between 60 and 90 days and why the circumstances are so different.

There is another question, which I trust that the Minister has examined, of the resource costs that may be affected by this. Of course, if one brings up a level of punishment to a higher one, it sucks up the cases of people who would normally get lower punishments. That may involve extra resources in detention provision. I hope that the Minister will be able to tell us that that has been taken into account.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, there has been much interest in the position of the commanding officer in the military criminal justice system, and I believe that we are all agreed on the importance of this. In recent years, some 95 per cent of cases have been dealt with at summary level. These sorts of cases, minor in terms of the criminal law, cover the low-level misconduct which, if not dealt with, can have a significantly corrosive effect on unit discipline and cohesion. We are convinced, and I am sure that the noble Earl will agree, of the merits of this approach.

A key element of our consideration has been to ensure that in the future commanding officers will be able to deal with an appropriate range of offences. We have looked carefully at the different approaches of each of the services. We have done so in anticipation of the requirement in years to come and therefore against a background of an increasingly expeditionary approach to operations in all our armed services. This has informed our approach to the offences that commanding officers should be able to deal with and the levels of punishment which they should have available.

Under the Bill, Army and Air Force commanding officers will be able to deal with a small increase in the number of offences than they can deal with now. These are offences, such as assault occasioning actual bodily harm, which in straightforward cases are regularly dealt with by their naval counterparts and which, if proved, may require greater punishments. We must not forget, of course, that at Clause 239 it is specifically provided for that an accused must be given credit if he admits an offence and has co-operated with service police, and this applies to punishments awarded in the new summary hearing system as well as at the court martial.

I am happy to send further detailed examples to the noble Earl of the Navy's use of this power, but I can give some data on how often it is used. In 2005, Royal Navy commanding officers awarded periods of detention 79 times at summary trial. Of these, eight were for60 days or more, and seven of these followed a guilty plea. In a further 24 cases, commanding officers awarded punishments of more than 40 days' detention. In 23 of these, credit for guilty pleas may have reduced the punishment from more than the 60 days which this amendment proposes. Removal of the power of 60 to 90 days' detention for the Royal Navy would therefore generate an unacceptable increase in cases sent for trial by court martial. It would quite simply have an adverse impact on confidence in the system of discipline and on operational effectiveness.

Conversely, by gaining these powers, the Army and RAF might well see a small reduction in the number of cases that need to be dealt with by court martial if accused persons are happy to be dealt with by their commanding officer. There are important safeguards in place over the use of extended powers to deal with the additional offences and the use of sentences of detention longer than 28 days.

The powers of punishment available to commanding officers is an integral element of Bill proposals. The amendment would have an immediate adverse affect on the administration of discipline in the Royal Navy and would remove what would be an important improvement for the Army and Air Force. The proposals in the Bill have been carefully developed to reflect the current and anticipated future requirements for commanding officers and safeguards appropriate for service personnel. I hope that in light of this explanation the noble Earl will withdraw his amendment.

Photo of Earl Attlee Earl Attlee Conservative 7:00 pm, 31st October 2006

My Lords, I am still a bit disappointed. The Minister mentioned actual bodily harm. It is sensible to include that as an offence that could be dealt with summarily, for the simple reason that actual bodily harm need not be a very serious assault. It is a matter of some damage being done to the victim.

The Minister said that the Bill was being carefully considered. I suspect it is rather more that the Royal Navy won this battle. I am grateful for the Minister's response. I think he is wrong, but I will not return to my amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 37 not moved.]

Photo of Earl Attlee Earl Attlee Conservative

moved Amendment No. 38:

After Clause 153, insert the following new clause-

"CHAPTER 5 THE ADMINISTRATION TRIBUNAL

THE ADMINISTRATION TRIBUNAL

(1) There shall be a Tribunal, to be known as the Administration Tribunal.

(2) The Administration Tribunal may sit in any place, whether within or outside the United Kingdom.

(3) The Administration Tribunal shall have the functions and composition conferred on it by this Chapter."

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I shall also speak to Amendments Nos. 39 to 48. The Government have made it much harder for the commanding officer to exercise summary jurisdiction. It is thus harder to maintain discipline and morale in military units. I always wondered how the services would work around these legislative changes. The answer is what is called "administrative action", which is taken instead. By and large, service personnel are content with this, because when they foul up, the matter can be dealt with speedily—a short flash-to-bang time—just like the situation that obtained before the moving target of the ECHR impacted upon the summary dealing arrangements. Ministers from my party have been just as morally weak-willed as those from this Government.

The problem, though, is that there is no appeal against administrative action. That is particularly significant if the action is a discharge, or, in the case of an officer, a requirement to resign the commission. The Minister will point to the grievance procedure and the welcome changes under the Bill. However, I think there is still a gap, particularly in the case of forced discharge or resignation, because it is harder to fight your case from without.

Some noble Lords may think the tribunal might be a hindrance to the chain of command. I do not think it should be. For instance, suppose a serviceperson's career is to be terminated because his services are no longer required. He can be discharged. With the proposed tribunal, however, the decision to discharge can be repealed, and rapidly, because there is a provision in my amendment to provide for rapid decision-making. In a case similar to that of Mr Skinner, of Deepcut notoriety, the tribunal could not—indeed, would not—take very long to reject any appeal against discharge on the grounds of suitability to serve in Her Majesty's forces.

Another problem arises where a serviceperson is required to pay for loss or damage of equipment. I confess I am not fully conversant with current procedure and the provisions of the Bill, but I have personally been invited to pay for loss of equipment by administrative action. I never signed for the equipment I was alleged to have lost—a sleeping bag. The quartermaster sergeant did not have any paperwork that I had signed to show that I had lost a sleeping bag. The problem was that everyone in the squad had signed for a sleeping bag, so he assumed that I had lost one. I had not. Old soldiers will be thinking, "No change there", but a tribunal would provide some way of rapidly seeking redress.

Some noble Lords may think that this process would be terribly time-consuming. The tribunal could consider several simple cases in a morning, but in more complicated cases it may be able to deal with only one in a sitting. Some might think that the tribunal should have a wider remit, but in drafting my amendment I was careful not to overlap with the remit of the commissioner of military complaints. My objective is to provide a means of appeal primarily against administrative action, which is becoming much more prevalent, particularly against a discharge or requirement to resign the commission. I beg to move.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I welcome the fact that the noble Earl, Lord Attlee, has moved his amendment on administrative tribunals, which we did not have time to consider in Committee. The use of administrative action by the services in order often to bypass the need for legal action was commonplace in the past and, from what the noble Earl says, that has not changed over the years since I was in the services. Whereas civilians have recourse to industrial tribunals when their employer deals with them through comparable action, the only action open to the serviceman at the moment is a redress of grievance, which we know is ponderous and not transparent in showing justice being done.

I recognise that we may have a new situation with the ombudsman arriving, which may solve some of the problems. The one criticism I had of the noble Earl's amendment was that at Amendment No. 39 the rights of appeal seemed to be rather narrowly drawn. I can think of cases of administrative action, varying from merely placing a letter on the personal file through to a posting on short notice, that might in other jobs amount to constructive dismissal because it has affected the person's career.

I support the principle here. If we can ensure the needs are covered by the commissioner, we may be able to meet the needs that there are, but we need to be aware that administrative action in the services is an important part of the set of different disciplinary measures available to commanding officers.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, Amendments Nos. 38 to 48 seek to create a right of appeal to a form of tribunal against certain administrative actions, mainly any decision to discharge someone or to require him to resign. The tribunal would be able to overturn the decision or decide on other administrative action.

The amendments propose appeals to the tribunal on three counts. In the case of discharge and the resignation of a commission, service personnel already have the right to respond before the discharge or resignation is made final, and thereafter the right to redress should they feel there are grounds for complaint. Equally, where an individual is required to pay for the loss or damage of service equipment, that requirement may be as a result of summary proceedings against which he has the right of appeal or, if not, representations through the chain of command, and, ultimately, service complaints are available.

Given the limited grounds proposed for the tribunal, the redress system would still be required for other cases. We have confidence in the streamlined redress system that the Bill provides and do not think that it would be right to introduce a totally different system for certain cases. The tribunal would represent an unnecessary and bureaucratic change that would serve only to delay and complicate matters.

I note the points made by the noble Lord relating to the services ombudsman. Given what I have said, I request the noble Earl to withdraw the amendment.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I am extremely grateful to the noble Lord, Lord Garden, for his comments on the amendment. I tabled it as I have witnessed the problems that it seeks to address. I am aware of situations where servicemen have been required to resign or have been discharged and where the redress of grievance procedure is not fit for purpose. I hope that the Minister will inform me in writing—he is extremely reliable in that regard—although the Bill may by then have completed its passage, how many redress of grievance claims have been made in respect of discharge or requirement to resign a commission, how long each has continued and how many are outstanding. Frankly, I am not happy about the increasing use of administrative action to get round the problems that we have created by making it harder to exercise summary jurisdiction. However, that is not something that we want to put in the Bill. We have a lot still to do. For the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39 to 48 not moved.]

Clause 155 [Constitution of the Court Martial]:

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement) 7:15 pm, 31st October 2006

moved Amendment No. 49:

Page 75, line 36, leave out subsections (1) and (2) and insert-

"(1) In the case of any proceedings, the Court Martial is to consist of-

(a) a judge advocate; and (b) at least three but not more than five other persons ("lay members").

(2) But Court Martial rules may provide that, in the case of proceedings of a prescribed description, there are to be-

(a) at least five but not more than seven lay members; or (b) no lay members.

(2A) In the case of proceedings where the Court Martial consists of a judge advocate and lay members-

(a) a prescribed number of the lay members must be officers or warrant officers qualified for membership under section 156 and not ineligible by virtue of section 157; and (b) the rest must be officers so qualified and not so ineligible.

(2B) Subsection (2A) is subject to any provision made by Court Martial rules."

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, I will deal first with all the government amendments in this group. These amendments deal with the minimum and maximum numbers of lay members required for a court martial. In Committee I said that I would consider noble Lords' arguments, in particular those of the noble Earl, Lord Attlee, and the noble Lord, Lord Thomas of Gresford, about the desirability of stipulating the minimum and maximum number of lay members of the court martial in the Bill rather than in rules.

The combined effect of these amendments is that there will ordinarily be a minimum requirement of three members. But, in cases prescribed in regulations, the minimum number will be five. Those cases where five will be required will be decided by objective criteria, for example "all Schedule 2 offences". The size of the court martial panel therefore broadly reflects the current position in the Army and Air Force district and general courts martial.

In addition, these amendments allow for regulations, which will be subject to the affirmative procedure, to provide other criteria which will allow a further two members to be added to the minimum requirement. It will be for a judge advocate to decide whether to direct the court administration officer to specify additional members of the panel, and he will be able to do so only in limited circumstances.

The relevant criteria will focus on matters such as the likely length or location of the trial, particularly when held overseas, other than in Germany. The reason that we need to have the flexibility to have additional members specified for a trial is to avoid the problem of a trial collapsing because a lay member drops out for some reason. With additional members a trial may proceed even if one or two members drop out, provided that the number of members does not drop below the required minimum.

The amendment also provides for rules to allow the judge advocate to sit alone in certain circumstances. There may, for example, be legal matters to decide, which must be done in the absence of the lay members so as not to prejudice their findings of fact.

In the light of that explanation I hope that noble Lords will feel able to support these amendments. I beg to move.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, other matters arise in this grouping. The noble Lord, Lord Drayson, has followed some of the suggestions made in Committee, for which I am grateful. However, I say in traditional Liberal Democrat tones that he does not go far enough.

The points of principle to which I refer in Amendments Nos. 50 and 51 are important. I imagine that to those who have been in the services and have sat on courts martial it must seem very odd that in America a court martial can consist of a cross-section of the Armed Forces, as opposed to officers and warrant officers. However, as I said previously, if one looks at the matter from the point of view of the defendant who is seeking a fair trial, there is a basic principle involved. The basic principle as set out in Magna Carta is that he should be tried by his peers. The private soldier who appears before officers cannot expect them to have the same understanding of the circumstances in which he committed offences as a jury drawn from a cross-section of the community, particularly if he is charged with a civil offence.

I pose again the point I made in Committee. First, would it not seem odd for a policeman to be charged or tried by senior police officers or for firemen to be tried by senior fire officers, or for someone working in the City to be tried by senior accountants or financiers from the City? Throughout the community it can always be said, "We are part of a special group. We have special rules that only we understand. Therefore, it is only right that we should be the people who try the underling who is brought before us because of his misdemeanours. We are part of such an arcane mini-society that only we can understand the matter". That is not the principle on which the criminal law generally acts in this country. Whatever a person's position, when he is brought before the ordinary criminal courts of this country he is tried by a cross-section of the community with wide experience of all matters and he can expect them to have a full understanding of his background and position.

Secondly, Amendment No. 51 proposes that the court martial should consist of a cross-services section of people. I understand that there is a considerable desire in the services for them to remain separate. They have different traditions in many regards, which we respect. But surely the armed services should be looked at as a whole in the context of a Bill which brings them together for the purposes of courts martial and criminal proceedings. A Director of Service Prosecutions covers all branches of the services. Amendment No. 58, in the name of the noble Lord, Lord Astor, suggests that,

"Court Martial rules must make provision for the majority of the Court Martial panel to be drawn from the defendant's own service".

That seems inappropriate. Surely it is right that experience across the services should be shared and that there should not develop one level of understanding or of justice in one service and another level in another.

I shall not pursue Amendment No. 52 at all. Amendment No. 55 would simply require the qualifications for membership of the court martial to be limited to a serving member of the Armed Forces without reference to rank or position. In Committee I pointed out that that is the position in the United States, and has been for many years. I see no reason why we should not move to a more egalitarian system in courts martial in this country.

My final point, on Amendment No. 57, is very different. It is on majority verdicts. I have already spoken about that today, and I am not going to repeat what I said. It is the most distinctive part of courts martial that the decision is by a simple majority. I know the verdict is decided by simple majority in Scotland, but there are 15 jurors there. There are simple majorities in some of the continental systems, but we have always thought our system of trial by12 jurors to be superior to systems where only a few people sit.

Magistrates' courts in this country deal with 95 per cent of criminal cases, but they have very limited powers and deal with minor offences. If courts martial confined themselves to disciplinary matters, which take up most of the first part of the Bill, and did not get involved in civil offences, I would have a different attitude. However, where murder, manslaughter, rape and so on can be charged, and where prosecutions can proceed before courts martial, it is only right that majorities, as set out in Amendment No. 57, should be required before guilty findings are made. I have said as much as I need to without repeating what I said in Committee.

Photo of Lord Astor of Hever Lord Astor of Hever Deputy Chief Whip, Whips, Shadow Minister, Defence, Shadow Minister, Foreign Affairs, Shadow Minister, International Development

My Lords, I will speak to Amendment No. 58. We have tabled the amendment again as it concerns an issue that men in the Armed Forces feel strongly about, not least noble and gallant Lords in this House, as well as the Chief of the General Staff and the First Sea Lord, as they made plain in their evidence to the Select Committee in another place. It is very much our view that members of a court martial panel should be drawn from the defendant's own service. Despite what the noble Lord, Lord Thomas of Gresford, said, that view is shared by many of the service men and women in all the services to whom we have spoken.

I am very grateful to the Minister for his helpful response to the amendment, both in Committee and outside the House, and I have taken his comments on board. I accept that in his position he has to allow for the rare situations where there is a case for mixed panels at court martial. I would very much like to see a presumption for a single service panel, and I would be grateful if the Minister could give an assurance that there will be such a presumption. I also support Amendment No. 59, proposed by my noble friend Lord Attlee.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I am grateful for the Minister's amendments in this group, which are welcome. I do not support the amendments proposed by the noble Lord, Lord Thomas of Gresford. If he is right in his general approach, perhaps we should dispense with courts martial entirely and remand all the cases to Crown Courts in the United Kingdom—just bin courts martial altogether. I do not think that that is the view of the House. I do not know whether the noble Lord has noticed, but not all soldiers are particularly bright, and if you had a small panel, they would struggle with a complex fraud case, as does a jury now.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, generally speaking, the other services, on average, have more intelligent servicemen. That is a fact of life. Royal Air Force equipment is rather more delicate than a Challenger tank, and the Royal Navy's equipment is really complicated.

Also, the noble Lord's position assumes that the officers on a court martial feel it their duty to convict. I have not sat on a contested court martial, but I know that the ethos among officers is definitely not to want to convict, because then you are going to have to sentence. Officers in a court martial want to be absolutely sure, if they are to convict, that the person is guilty beyond all reasonable doubt. I strongly support my noble friend Lord Astor of Hever in his Amendment No. 58. I would be extremely unhappy if I found myself being court martialled by a panel other than one made up of Army officers who understood the context of the situation in which I had found myself.

I have an amendment in this group, and I declare an interest because I have a cousin in legal practice in Scotland who undertakes a considerable number of service cases. My understanding is that the most northerly court martial centre will be in Catterick and there will be none in Scotland. However, there are a large number of service bases in Scotland, such as Kinloss, Lossiemouth, Leuchars, Arbroath, Rosyth, Helensburgh and Edinburgh. Surely, a tri-service court martial centre in Scotland would be viable. There are considerable costs in moving all the court players all the way to Catterick from Scotland.

There is a further problem with the summary appeal court, which sits at a court martial centre. As I said, the most northerly court martial centre is Catterick, and a serviceman might be deterred from appealing a summary jurisdiction, even though he knows that he has been unfairly dealt with—I am afraid to say that I have been told that even today there are one or two commanding officers of questionable parentage. The reason for this reluctance is the need to go all the way to Catterick—not just for himself, to appeal, but for all the other players. That does not compare well with the civilian situation, where you can appeal a magistrates' court decision in the local Crown Court. I hope that the Minister can assure me that one of the benefits of the Bill will be that we can have a tri-service court martial centre in Scotland.

Photo of Lord Boyce Lord Boyce Crossbench

My Lords, I will make one or two comments about some amendments in the group. First, the noble Lord, Lord Thomas, contends that there is a need to have privates or other ranks on the court martial panel. I am unable to agree with that. The noble Lord, Lord Thomas, said that the court members should be experienced. Certainly he will find that the private, or even the corporal, does not have sufficient experience. Experience is vested in the warrant officer, or indeed in the officer, given that, certainly in the Royal Navy, a third of officers have come up through the ranks. It can be perfectly well found among officers and warrant officers sitting on the court. By the way, the services are not egalitarian; let us try to remember that.

On the amendment proposed by the noble Earl, Lord Attlee, about Scotland, I mentioned in Committee, and before, the importance of making sure that our court martial locations are distributed throughout the country. In addition to the points that the noble Earl made, I will add two more. First, if you are having a court martial and you are coming down from Scotland, you would lose a large chunk of your unit, who may be witnesses or friends. That can be disruptive to the unit's activities. Secondly, the reason for having a court martial in a local area is pour encourager les autres; it allows people in the unit to see the person being court martialled in the area where he has been operating, appointed or drafted. I would like some reassurance from the Minister that we will not just see two or three court martial centres, as currently outlined.

Finally, I support the noble Lord, Lord Astor of Hever, in his plea that the default position should be that a single person being court martialled should have on the court martial largely those from his own service. I do not agree that you will see a trial involving, for example, a flying incident being properly judged by a court martial with no aviators on it, or, vice versa, a trial involving a grounding incident in the Navy being properly tried by those in other services. If the amendment is not successful, I hope that the Minister can reassure us that there will be some sort of provision to make sure that, by and large, the court martial trying a single service defendant will be populated by people from the same service.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement) 7:30 pm, 31st October 2006

My Lords, I will now deal with Amendments Nos. 50, 51 and 58, which relate to how membership of the court martial is selected.

Although some of these matters are dealt with in the service discipline Acts, we believe they are more appropriate for rules. But those rules will be subject to the affirmative resolution procedure. I can confirm that we intend that the court martial will comprise a majority of officers with provision in rules for there to be one or two warrant officers, depending on the size of the court.

Amendments Nos. 51 and 58 take completely opposite viewpoints on whether there should be mixed-service panels. We strongly believe—this is the view of all three services—that a court martial should generally be made up from individuals of the defendant's own service, and that should be the presumption. There will be exceptions to that—for example, when there are co-defendants from different services. Rules will provide the criteria upon which the court administration officer should select a mixed panel.

It is important for the service context to be given due weight in relation to any offence, whether or not it occurs during operations. Also, most personnel usually serve in their own single service environments and would expect to face a tribunal comprised of members of their own service. We believe that members of the Armed Forces broadly have confidence in the court martial system, and changes that dilute the service character of the court martial can undermine the confidence of service personnel in it. Subject to that, selection should be random. Obviously, none of the members can come from the same chain of command as the defendant, nor are they likely to have any involvement in the case, and that is stated in the Bill. It would not make sense to select from that group where no person is or should be eligible. The Bill provides for a joint court administration officer, who will ensure consistency in the selection procedures.

Amendment No. 55 would, in effect, prevent the appointment of civilian lay members at the court martial of a civilian. That is clearly inappropriate. We shall consider the composition of the court martial on the trial of a civilian and can deal with that in rules. The recent judgment in the Martin case is relevant here. We will certainly want to consider whether a majority or even the whole lay membership of the court should be civilian in those rare cases where a civilian is to be tried for an offence in the service system. Those rules are already subject to affirmative resolution procedure, which will ensure that your Lordships will have an opportunity to scrutinise our proposals in due course. I would therefore urge the noble Lord, Lord Thomas of Gresford, not to press his amendment.

Amendment No. 57 makes various proposals in relation to verdicts. I can agree on one: that the judge advocate should have no vote on finding; but that is already provided for in Clause 160(2). I have recently written to the noble Lord on the remaining issues, so I will briefly summarise our position. The imposition of a system of unanimous verdicts has an attraction to those familiar with the English jury system. However, a court martial is not the same as a jury trial. The vast majority of cases that the court martial will hear are equivalent to those that are dealt with in the magistrates' courts in England and Wales, where a simple majority suffices—namely, a vote of two to one. This will be mirrored in the court martial for the majority of its cases.

There is nothing inherently unfair in a system where simple majority verdicts are allowed. As well as in our own magistrates' courts, they are used in jury trials in Scotland, in the Court of Appeal and in many other jurisdictions across the world, including in the House of Lords and the European Court of Human Rights. Simple majority systems are different, but not inferior.

We accept that the members of the court martial should seek unanimity on the verdict if possible. Judge advocates already give a direction to the lay members to seek to do that. By attempting to impose the allowed split of a majority verdict, the amendment would introduce the risk of a hung court and a retrial. It would mean that an accused who, in the court martial system may be acquitted on a three to two decision, for example, would instead have to be retried. That would be most unattractive to the Armed Forces.

I cannot support an amendment that would require the division on a majority verdict to be disclosed to the court. That does not occur in the magistrates' court, as the decision of the lay members of the Bench is the decision of the court. That is the effect that we seek to replicate for the court martial. The only occasions when splits are announced to a court are when judges are giving their verdicts—for example, in the House of Lords. Lay members of a court martial are not judges and I see no good reason to depart from the model of the magistrates' court in that respect.

Finally, on Amendment No. 59, I welcome the opportunity to address the issue raised by the noble Earl, Lord Attlee, and spoken to by the noble and gallant Lord, Lord Boyce, in relation to court centres. As I said at Second Reading, the military criminal justice system must operate where there are significant concentrations of service personnel. It is therefore quite right for the noble Earl to raise the issue of Scotland, where in future there will be more personnel from all three services, from Faslane to Lossiemouth. As I said in June in reply to the noble and gallant Lord, I believe that there is a strong service case for Scotland, and for the south-west.

I do not believe that the court martial in the UK should be confined to the three new court centres. I am sure that in complex cases where their excellent facilities will be essential, all three services will use them. That is common sense. It is also common sense that where there is no such specialist requirement, the key driver must be the operational effectiveness of the services and not of court buildings. I am sure those who provide services to the military criminal justice system will recognise that.

I hope that the noble Earl will understand why, having supported his reasoning, I am unable to support his amendment. This is not a matter on which we should legislate, but I hope that I have given comfort to him as to our direction in this matter. I hope that the noble Lord will be encouraged by my response and will not press his amendment.

On Question, amendment agreed to.

[Amendments Nos. 50 and 51 not moved.]

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, Amendments Nos. 52 and 53 have been entered wrongly on the Marshalled List, so I shall first call Amendment No. 53.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

moved Amendment No. 53:

Page 76, line 8, leave out "other members of the court" and insert "lay members"

On Question, amendment agreed to.

[Amendment No. 52 not moved.]

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

moved Amendment No. 54:

Page 76, line 9, at end insert-

"(4A) The number of lay members specified under subsection (4) is to be the minimum required unless a judge advocate, in accordance with Court Martial rules, directs otherwise.

(4B) In subsection (4A) "the minimum required" means-

(a) the minimum required by subsection (1)(b); or (b) where rules made by virtue of subsection (2)(a) apply instead of subsection (1)(b), the minimum required by those rules."

On Question, amendment agreed to.

[Amendment No. 55 not moved.]

Clause 159 [Rulings and directions]:

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

moved Amendment No. 56:

Page 77, line 28, leave out "one or more"

On Question, amendment agreed to.

Clause 160 [Decisions of Court Martial: finding and sentence]:

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

had given notice of his intention to move Amendment No. 57:

Page 77, line 33, leave out from "charge" to end of line 39 and insert "need not be unanimous if-

(a) in a case where there are not less than seven members of the court, five of them agree on the finding; and (b) in a case where there are five members of the court, four of them agree on the finding.

(2) The judge advocate shall not vote on the finding.

(3) Where the finding of the Court Martial is guilty, the judge advocate shall not accept the finding unless the President has stated in open court the number who respectively agreed to and dissented from the finding.

(4) The judge advocate shall not accept a non-unanimous finding under subsection (1) unless it appears to him that the members of the Court Martial have had such a period of time for deliberation as the judge advocate thinks reasonable having regard to the nature and complexity of the case."

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, although I have already spoken to the amendment, I wish to reply to the Minister's comments. It is unfortunate that the Government have not taken the opportunity of bringing in proper majority verdicts. I do not accept the Minister's reasons on this matter. Majority verdicts would give much more confidence to the public and to those in the services in knowing that where serious charges are brought, carrying with them sentences of life imprisonment, more than a simple majority of officers and warrant officers in a court martial should be required. A great opportunity has been missed.

Perhaps I may comment briefly on the court martial centre in Scotland. I know that my friend and colleague, Mr Gilbert Blades, frequently visits Kinloss and Lossiemouth. It might have been in one of those camps that the officers' mess was used for a court martial and an officer was brought before the judge on a contempt of court charge for using the judge advocate's lavatory. I thought that I would share that with your Lordships.

[Amendment No. 57 not moved.]

Clause 163 [Court Martial rules]:

[Amendments Nos. 58 and 59 not moved.]

Clause 308 [Sections 305 and 306: supplementary]:

[Amendment No. 60 not moved.]

Clause 336 [Composition and procedure of service complaint panels]:

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

moved Amendment No. 61:

Page 171, line 6, at end insert "or

( ) an independent member (see subsection (7));"

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I shall speak also to Amendments Nos. 62 to 65, all of which are designed to ensure that an independent member is always available on a complaints panel. Not only would that improve the consistency of approach by the complaints panel but it would give more confidence to those who seek redress that there is not some cosy arrangement as it goes up the chain of command.

I would have expected the Ministry of Defence to welcome always having an independent member, as it would almost certainly reduce the number of cases with which the new Service Complaints Commissioner would have to deal. In his reply in Committee, the Minister seemed to think that the arrival of the commissioner would reduce the need for an independent member of the service complaints panel, but both posts are complementary. In his answer then, the Minister again gave specific cases where the Secretary of State might think that an independent member was necessary. But if the Secretary of State makes decisions about when to include an independent member, that will tend to look as though he does not trust the chain of command and that will undermine it. If we have a standard system which is understandable, that will reinforce the chain of command and the confidence that the services have in the system. I beg to move.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, when the noble Lord refers to an independent member, does he mean someone with no military experience whatever or someone who has military experience but is no longer serving in the regular Armed Forces? It might be desirable for someone who is no longer serving and is out of the system to take an independent view, but I am not sure about the presence of a complete lay person.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I mean an independent member in the same sense as in the clause. Perhaps an independent member should always be present rather than only when the Secretary of States decides that one should be there.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, Amendments Nos. 61 to 63 would require an independent member to be present on all service complaint panels, and Amendments Nos. 64 and 65 would allow the Secretary of State to require more than one independent member in prescribed cases.

Our starting point is that at the heart of the relationship between service personnel and the chain of command is the chain of command's responsibility to investigate wrongs and remedy them. But, in some cases, the balance moves in favour of an independent element in that process.

We have already identified the key areas where an independent element is needed. They are where a complainant alleges unlawful discrimination or harassment, bullying—which can amount to harassment in some instances—or bias or other improper behaviour. But we do not intend to limit the cases to those instances. There will certainly be others in which expertise or independence calls for an independent element. We also propose to ensure independent oversight of the effective working of the system by the appointment of a statutory Service Complaints Commissioner, who will report directly to the Secretary of State.

We considered very carefully the value that an independent member would bring to the decision-making process and concluded that, in addition to the key requirement to inject a fresh but informed perspective on a case, we would also look at the knowledge and experience in a particular field. In other cases, independence is not a key requirement, and in those cases there is no reason not to use panel members from the wider chain of command or civil servants—especially ones with knowledge and experience relevant to the complaint.

We therefore believe that our proposals for an independent member on panels in the consideration of certain cases will achieve the right balance between, on the one hand, independence and outside areas of expertise and, on the other hand, the need for the services to respond to complaints and for complaints to be considered by the chain of command with a clear understanding of the service context.

There should not be a requirement for more than one independent member to fulfil this function, given that one member will have been appointed to a particular panel on the basis of his independent and fresh perspective and also, perhaps, experience and expertise applicable to the complaint in question. It is important that the services do, and are seen to, consider and remedy any wrongs, but there should also be an independent element within the system and an independent review of the performance.

On the strength of my response to the proposals, I hope that the noble Lord will feel able to withdraw the amendment.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I do not believe that the Minister said anything new this evening compared with his previous response on this issue, but I shall study what he said carefully in Hansard. This is an important issue as regards how we give the independent panellist some status, but, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 62 to 65 not moved.]

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence 7:45 pm, 31st October 2006

moved Amendment No. 66:

Before Clause 338, insert the following new clause-

"SERVICE COMPLAINTS COMMISSIONER

(1) There shall be a Service Complaints Commissioner ("The Commissioner").

(2) Schedule (Service Complaints Commissioner) makes further provision about the Commissioner."

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I gave notice to the Minister that I would wish to return to the detail of the Service Complaints Commissioner once we had had time to absorb the amendments, which came very late in Committee. We tabled amendments at that stage but we are now in a complex mix of the Government's proposals and the question of how we fill out some of the detail.

I am most grateful for the Minister's letter of 24 October, which gave some further information. But, as he said in that letter:

"This is very much work in progress and will continue to be developed in consultation with the single Services and others over the coming months".

Time, of course, is very short as regards getting this provision into the Bill in a satisfactory structure. It would be helpful if the Minister could tell us who are the others to be consulted, as mentioned in his letter, apart from the Children's Commissioner. A question arises over whether the roles of the Children's Commissioner and the Service Complaints Commissioner are exactly parallel. However, I am aware that the Ministry of Defence has a history of thinking of members of the Armed Forces as children needing appropriate discipline and needing to be kept in order.

The Minister's letter outlines a timescale for implementation—which, again, is helpful—with selection beginning next year for appointment by the end of 2007. It would be useful to have in the Bill a schedule of what is required for a person to be a service complaints commissioner. That is what my amendment attempts to do. As I said, it has been tabled in some haste because the Government's amendment came late and we had little time in which to respond.

It is important that this new post should be defined in the right direction. Specifically, can the Minister tell us whether it will meet all the requirements of the Blake report, which considered the need for such a commissioner? For example, paragraph 12.101(iii) of the report states:

"In an important case, the Commissioner should be able to institute legal proceedings to set aside legally flawed decisions not to prosecute".

Is that the sort of commissioner that the Minister is proposing? I beg to move.

Photo of Lord Astor of Hever Lord Astor of Hever Deputy Chief Whip, Whips, Shadow Minister, Defence, Shadow Minister, Foreign Affairs, Shadow Minister, International Development

My Lords, we oppose the amendments in this group, which are an unnecessary addition, given the presence of Clause 366. We are concerned that the amendment would give even more powers to the commissioner and would therefore undermine the chain of command even further than is done by Clause 366. We have heard many times from noble and gallant Lords and other noble Lords in this House that preserving the chain of command is the essential ingredient for the discipline of the Armed Forces, and we cannot support an amendment that would further weaken that.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, we now return to what I previously called a key part of the Bill, on which I have written to noble Lords. In speaking to Amendment No. 66, I shall also cover Amendments Nos. 67 and 72.

I remain absolutely convinced that the appointment of a Service Complaints Commissioner under the Government's amendments moved in Committee is right for the way that the Armed Forces operate. It meets the overall objectives underpinning Mr Blake's recommendation in the Deepcut review, which sought to promote the effective operation of existing military proceedings, rather than to replace them and to provide independent assurance that the procedures are working as effectively as they can. It will provide the best solution for service personnel. They need to have confidence in a fair and efficient system. I believe that this is best achieved by the changes we are making in the Bill. They streamline the existing system and introduce independence where that is necessary. But they also retain a connection between redress and the services. I think it essential to retain the important role of the services in looking after the welfare and discipline of those under command.

I would like to reiterate some of the main points of our proposed system. First, the Service Complaints Commissioner will have an important role in relation to allegations of bullying, harassment and other forms of misconduct. The commissioner will be able to refer such complaints to the chain of command, which will then have to check with the alleged victim whether he or she wants to make a complaint. These allegations can be sent to the commissioner by the alleged victim or any other member of the public.So the Bill will provide an alternative to going straight to the chain of command. We will lay down in subordinate legislation, which will be subject to affirmative resolution, how the commissioner is to be kept informed about cases he has referred to the chain of command. This will also ensure that whoever contacted the commissioner about the case can also be kept informed of progress.

There will be independent oversight by the commissioner of the performance of the system as a whole, with direct reports to Parliament and direct access to Ministers. Further, the independent element in the consideration of complaints related to bullying, harassment and other forms of misconduct will be provided by the presence of an independent member on service complaint panels. We have already talked about complaint panels and I now want to concentrate on the commissioner.

As I have said previously, and I again stress here, although some of the proposals in AmendmentsNos. 66 and 72coincide with those of the Government, Amendment No. 72 goes beyond what is proposed by the Government. The noble Lord's amendments would involve the creation of a parallel system of complaint, controlled and directed by a commissioner. The relationship between its decisions and those of the internal redress system is not specified, but I suspect that having two systems would inevitably be complicated. The amendment leaves it to the Secretary of State to work out the details of this parallel or alternative system.

However, these amendments would undermine the responsibility of the services for dealing with complaints and the parallel system they require would mean that some complaints would be dealt with under the internal system and some under the commissioner's. This could result, for example, in a lack of consistency in dealing with complaints; in the application of time limits; and ultimately, a significant and worrying decline in the ability of the services effectively to look after their own people.

However, I share the view of the noble Lord, Lord Garden, expressed in the House on 12 October, that it will be crucial to ensure that the post of Service Complaints Commissioner is filled by an appropriate person. As such, we intend that this individual will be someone of the stature and experience appropriate to a post of this importance, as the noble Lord has said. We will consult the Children's Commissioner in line with the recommendation of the House of Commons Defence Committee.

We envisage that appointment will take place through public advertisement and a fair and open competition, and that the normal principles of the public appointments process will apply. We will consult further with any other persons whom we think can usefully contribute. We intend that the selection panel will include an external, independent element, and we are exploring the possibilities, including the opportunity for the selection panel to be chaired by a senior Civil Service commissioner. I remain convinced that the appointment should be made by the Secretary of State, as is the norm in comparable cases, and we see no reason to be different with this appointment.

I also agree that the commissioner should be adequately resourced in order to give effect to the role. This will need to be kept under review in relation to the commissioner's workload as the role develops. As an individual officeholder, the commissioner will have the legal powers necessary to appoint staff. The commissioner's annual report will provide the commissioner with the opportunity to raise any concerns about resources and the ability adequately and effectively to carry out the role on that basis. I most firmly believe that the existing system will work fairly and efficiently, and that it will maintain the balance between the service role and the appropriate degree of independence in responding to complaints. I therefore ask the noble Lord to withdraw the amendment.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I am grateful to the Minister for his response. I now find myself somewhat confused about what this new post will do, which is part of the problem. There seems to be a reluctance to define the post in any great detail. The Minister has raised the issue of the independent member of the service complaints panel, yet when we discussed that a moment ago, that was something that would be invoked only when the Secretary of State saw fit. On these Benches there is a real concern that we may find that all the recommendations of Nicholas Blake after Deepcut fall between two systems, neither of which has been fully implemented.

I turn to the suggestion of the noble Lord, Lord Astor of Hever, that Clause 366 says everything necessary—I think he was indicating that. In that case, we differ because it is a very sparse clause and just says that the Service Complaints Commissioner exists.

I take seriously the Minister's concerns about particular aspects of the schedule that we are offering in Amendment No. 72. I shall reconsider that, but we have not finished the debate on whether we have a clear view through the Bill on what the Service Complaints Commissioner will be able to do and whether that will meet the requirements of Blake. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 339 [Reports by Commissioner on system for dealing with service complaints etc]:

[Amendment No. 67 not moved.]

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

moved Amendment No. 68:

After Clause 340, insert the following new clause-

"SPECIAL PROVISION FOR SERVICE PERSONNEL UNDER THE AGE OF 18

(1) Service personnel under the age of 18 are not permitted to serve in combat areas.

(2) Service personnel under the age of 18 are not permitted to carry out guard duty with live weapons.

(3) Service personnel under the age of 17 are to be accommodated in dedicated locations, and particular attention is to be given to their care."

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, we take very seriously the issue in the amendment of whether we are meeting the responsibilities that are necessary for the under-18s. That is not just because it was such a major feature of the Deepcut inquiry, but also because of our international obligations. If the business programme had allowed us time to debate the Bill yesterday, I thought that today we would come to this amendment when the House was fuller than it is now. I want a proper debate on this matter. Given the way in which the business has been handled, I can probably save considerable time this evening, if the Minister agrees that we return to this at Third Reading. It is an important fundamental principle about how under 18s are handled as members of the Armed Forces. I beg to move.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I am not clear whether we are to debate this amendment or not.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, under pressure from various sides, in view of the time, I was attempting—

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I am most grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

moved Amendment No. 69:

After Clause 340, insert the following new clause-

"FLIGHTS BY FOREIGN AIRCRAFT AT MILITARY AIRFIELDS

(1) The Defence Council may by regulations make provision for the handling of foreign aircraft at military facilities, to ensure that such aircraft are complying with United Kingdom legal requirements and international obligations.

(2) Nothing in subsection (1) can absolve the commanding officer from his responsibilities under international treaties."

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, AmendmentNo. 69 covers another important issue, so I would like to take a little time to speak to it. As your Lordships will recall, it is a variation on the issue of the responsibilities of the commanding officer as regards worrying about suspicious movements through his airfield. Your Lordships will have seen that the vice-president of the United States last week appeared to endorse the practice of interrogation using water-boarding as a "no-brainer", to quote him. The evidence since we last discussed extraordinary rendition has been growing constantly. The new book by Stephen Grey, Ghost Plane, was featured in the Guardian of 26 October. We have tried to get the Government to respond to these concerns in different ways, with amendments to the Civil Aviation Bill and the Police and Justice Bill.

I now have a much more limited aim: to ensure that military personnel are not implicated in this nightmare activity of extraordinary rendition. The debate we had in Committee was extraordinarily useful. The Government took their usual position that there is no problem because it is all covered by international treaties already. The Minister gave us reassurances that the military are not really at risk because all these flights are covered by diplomatic clearances; the commanding officer is thus absolved of responsibility.

I was, however, less comforted once I reread the views of the noble Lord, Lord Kingsland—I am pleased to see him in his place—whose knowledge of the law much exceeds mine:

"I am in no doubt that if the commanding officer of any aerodrome in the United Kingdom had reason to believe that an in-transit aircraft was engaged in an act of external rendition, or there was a real risk that it was so engaged, he would be under a personal legally binding duty to investigate the matter, irrespective of any superior orders he had had to the contrary. Not to act, in those circumstances, would render him liableto prosecution for complicity in torture".—[Hansard, 12/10/06; cols. 439-40.]

My amendment is a very mild one in some ways, to ensure that we do not end up in that situation. In Committee, the Minister was obviously less certain about the commanding officers' situation, as, one must assume, the commanding officers will be. The amendment permits the Defence Council to help commanding officers by issuing appropriate regulations, and reminds them of their legal responsibility. I beg to move.

Photo of Baroness D'Souza Baroness D'Souza Crossbench 8:00 pm, 31st October 2006

My Lords, my name is on the amendment, so it will come as no surprise to your Lordships that I support it. It comes in a slightly different form from its previous incarnations, but the purpose is very much the same: to ensure that there is some rule, regulation or standardised procedure whereby the use of UK aerodromes and airspace facilities is prevented, in any shape or form, from being involved in the unlawful practice of rendition.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, I also lend our support to the amendment of the noble Lord, Lord Garden. As he indicated, we had a long debate about this matter in Committee, and he has reformulated the amendment to accurately reflect the international law on torture. It seems, admirably, to summarise the current legal situation, and I congratulate him on bringing it forward.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I support the thrust of these amendments. For myself, I would be happier if the provision started, "A person subject to military law commits an offence if", but I am grateful for the advice of my noble friend Lord Kingsland that it is a good amendment.

Members of our Armed Forces should not have anything to do with extraordinary rendition. As the noble Baroness, Lady D'Souza, said, they should have nothing to do with it "in any shape or form".

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, the amendment once again raises issues such as extraordinary rendition, as well as international obligations. In the context of the Bill and the debate in Committee, however, the concern relates particularly to the responsibilities of commanding officers.

I do not intend to add to what my noble friend Lord Triesman said on extraordinary rendition in general in the debate on 18 July. Nor do I wish to add to what was said more recently, on 18 October, by my noble friend Lady Scotland. She made it clear, in the context of the Police and Criminal Justice Bill, that the Government are more than satisfied that the police already have sufficient legal powers. They are able to react to any intelligence suggesting that any offence under either UK domestic law or our international obligations is being committed when foreign aircraft transit through our jurisdiction, including our military airfields.

I am afraid that Amendment No. 69 does not add anything to the law as it stands. As I have said, there are already sufficient legal powers to react to any intelligence that an offence is being committed. Any regulations that might be made under the proposed clause would not add to those powers. Propose subsection (2) of the amendment, again, adds nothing. Of course commanding officers, like anyone else, must not become parties to crime. We do not consider that there are any other international obligations which this clause could be referring to.

I hope that what I have said adds to the debate and reassures noble Lords that this amendment is neither necessary nor desirable. There is already sufficient provision in domestic law to cover their concerns. I hope that, having raised the matter once more, the noble Lord feels able to withdraw the amendment.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I am grateful to the Minister. We at last seem to be getting towards a consensus on a way forward on all Benches apart from those of the Government. The noble Earl, Lord Attlee, gave me a useful thought on how we might modify the amendment a little to bring it back when, I think, we will find the House will support it. When I have had a chance to look at that, I shall come back at Third Reading. For now, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

moved AmendmentNo. 70:

After Clause 343, insert the following new clause-

"RECORDS OF EVACUEES

The Secretary of State shall ensure that records are kept of every person subject to service law who is evacuated from an overseas operational theatre as a result of injury or serious illness."

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, I simply ask the Minister: are records kept of every person who is evacuated from overseas operational theatres as a result of injury or serious illness? If not, why not? I beg to move.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I am grateful for the noble Lord's flattery in tabling an amendment I tabled in Committee.

Photo of Lord Astor of Hever Lord Astor of Hever Deputy Chief Whip, Whips, Shadow Minister, Defence, Shadow Minister, Foreign Affairs, Shadow Minister, International Development

My Lords, I also support this amendment, which, as my noble friend Lord Attlee said, he moved in Committee. It is absolutely right that records should be kept of any servicemen evacuated from operations as a result of injury or serious illness. The perceived lack of information in this area, whether justified or not, is not helpful either to the families of service men or women, or to public opinion. The argument that records are being collected anyway is not, in my view, strong enough to keep this provision out of the Bill.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, as I said in Committee, I recognise absolutely the deep importance of properly recording casualty figures. I also said that records are made and kept of all those who are transported out of theatre for medical reasons. I have since provided further information to the noble Earl on the defence medical information capability programme.

For the wider benefit of noble Lords today, I inform them that this programme will contain reporting tools enabling the Defence Medical Services to compile and analyse information about the progress of service personnel receiving treatment following injury or illness on operations. It will also identify the types of injury and illness experienced during an operation. This new system is due to enter service progressively from next year and it will be available to deploy on operations from 2008. Given that we already collect and communicate the data on casualty figures and are doing so much more to improve casualty reporting, I ask the noble Earl to withdraw his amendment.

Amendment, by leave, withdrawn.

Clause 364 [Director of Service Prosecutions]:

Photo of Lord Inge Lord Inge Crossbench

moved Amendment No. 71:

Page 185, line 10, at end insert-

"(2A) A person may be appointed as the Director of Service Prosecutions only if he has appropriate military qualifications.

(2B) The Secretary of State must by regulations specify the appropriate military qualifications referred to in subsection (2A).

(2C) The regulations must specify that such qualifications must include appropriate uniformed service experience."

Photo of Lord Inge Lord Inge Crossbench

My Lords, throughout the passage of this important Bill, great emphasis has rightly been placed on the important part played by the commanding officer and the chain of command in the administration of the military justice system. In saying that, I am thinking particularly of the great importance of those involved understanding the demands of operational service. This is why this amendment sought to ensure that the Director of Service Prosecutions had military experience. Certainly I believe that the chiefs of staff must be consulted on the appointment of the Director of Service Prosecutions.

Like many other noble Lords, I am particularly grateful for the way in which the Minister has kept us involved during the progress of the Bill. Therefore, on reflection, I have accepted that there may be occasions when there is not a suitable service lawyer to fill the appointment of the Director of Service Prosecutions. I obviously hope that this will be the case only on rare occasions. However, I accept the argument that it would be wrong to create a straitjacket by placing a statutory requirement in the Bill. If such a situation arose—when there was no suitable candidate with military experience—I hope that it would be possible by regulation to ensure that the Director of Service Prosecutions designate undertook an appropriate induction course. It is essential that servicemen and servicewomen have confidence that the Director of Service Prosecutions understands the conditions of operational service. I beg to move.

Photo of Lord Boyce Lord Boyce Crossbench

My Lords, I support the amendment moved by my noble and gallant friend Lord Inge. It is important that the confidence of our Armed Forces is sustained in the Director of Service Prosecutions, the best way being by him having appropriate military experience. If there is an exceptional situation where he does not have such experience, he should be given the opportunity to gain some before he takes uphis post.

Photo of Lord Astor of Hever Lord Astor of Hever Deputy Chief Whip, Whips, Shadow Minister, Defence, Shadow Minister, Foreign Affairs, Shadow Minister, International Development

My Lords, my name is also on this amendment. The background of the Director of Service Prosecutions remains a critical issue to those in the services. I would agree with the noble and gallant Lord, Lord Inge, and say how helpful the Minister has been. I hope that he will consider the suggestion in the noble and gallant Lord's amendment. I support the idea of an induction course in those cases where a director with uniformed experience cannot be found.

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

My Lords, I recognise the strength of feeling on this important matter. As noble Lords and noble and gallant Lords have said, I have looked at it again following our debate in Committee to see whether it would be helpful and appropriate to amend the Bill. I have especially taken on board the views of both current and former service chiefs, who have considered this matter very carefully indeed—rightly so. They have assured me that they are content with the Bill as it stands and with the proposals that I outlined to your Lordships for the selection process. They welcomed the consultation that there will be about the job specification, and the terms and conditions for the post, and the involvement of a senior serving officer in the selection process. I think we agreed on two things: that the director should have appropriate service experience; and that the recruitment process should be sufficiently robust to ensure that the person appointed will be an outstanding individual who will enjoy the confidence of the services while being entirely independent from them.

By "service experience", I mean an understanding of service life and operations in each of the services and of the needs and the working of a service system of justice and discipline. It is possible that there will be an outstanding candidate for this important post who does not have previous uniformed experience or, indeed, whose service might have been some years before. In both cases it would be particularly important for them to undertake an appropriate induction period before taking up the appointment. Similarly, where the director to be appointed is from one of the services, he or she might also need a period to develop a deeper understanding of how the other two services operate. We recognise that such an induction process needs to be intensive and of a sufficient duration in order for the individual to develop a detailed understanding of life across all three services. As I have already said, it is essential that the director has a knowledge of how each of the services operates and of the needs and the working of the service system of justice and discipline. On the basis of these reassurances, I hope that the noble and gallant Lord feels able to withdraw his amendment.

Photo of Lord Inge Lord Inge Crossbench

My Lords, I thank the Minister for that encouraging reply, particularly what he said about an induction course. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

Clause 373 [Orders, regulations and rules]:

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement)

moved Amendments Nos. 73 and 74:

Page 188, line 13, after "sections" insert "36,"

Page 188, line 29, leave out "155(1) or (2)" and insert "155"

On Question, amendments agreed to.

House adjourned at fifteen minutes past eight o'clock.