Armed Forces Bill

– in the House of Lords at 3:07 pm on 6th November 2006.

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Clause 8 [Desertion]:

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement) 3:08 pm, 6th November 2006

moved Amendment No. 1:

Page 5, line 11, leave out from "avoid" to end of line 17 and insert "a period of active service.

( ) In this section "active service" means service in-

(a) an action or operation against an enemy; (b) an operation outside the British Islands for the protection of life or property; or (c) the military occupation of a foreign country or territory."

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 on Report, I have some sympathy with the concerns of the noble and gallant Lord, Lord Craig, about the complexity of the drafting of the offence of desertion. I said that I would have one last look at this, with a view to simplification. I hope that these amendments make the clause simpler and more comprehensible to the layman. In that respect, at least, I hope that it achieves what the noble and gallant Lord and others have been seeking. The amendments do not, however, alter the fact that we have made this offence much narrower than in the current service discipline Acts. It may be best if I explain the effect of the amendments.

First, we have replaced the reference to,

"any particular service or kind of service, and that service or kind of service is relevant service", with the more familiar and much more succinct term,

"a period of active service".

We have not altered what comes within the definition of "active service" but, I repeat, this is much narrower than in the current Acts. On the meaning of active service, I make it clear that it covers peacekeeping operations. Where there is armed opposition, it would be covered under subsection (3)(a) "operations against an enemy". Subsection (3)(b) would cover peacekeeping where there is no enemy.

Secondly, we have removed subsection (5). The outcome is that there are two ways to commit the offence of desertion: to go absent without leave with the intention of remaining permanently absent, for which the maximum penalty can be two years' imprisonment; or to go absent without leave to avoid a period of active service, for which the maximum penalty is life.

The clause is better. It will allow servicemen fully to understand what amounts to desertion and, importantly, which type of desertion will attract the more serious maximum penalty. I pay tribute to the noble and gallant Lord for his persistence in this matter and I urge noble Lords to accept the amendment. I beg to move.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

My Lords, the Minister has said that he believes that the wording of the clause is now better. I entirely agree and I thank him very much for the co-operative and extensive trouble that he has taken to ensure that we get an agreement on this particular and important clause.

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 also support the amendments. I thank the Minister for taking on board all the points that have been made on all sides of the House, not least by the noble and gallant Lord, Lord Craig.

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 Amendments Nos. 2 and 3:

Page 5, line 21, leave out "subsection (5) applies," and insert "the offender intended to avoid a period of active service,"

Page 5, line 23, leave out subsection (5).

On Question, amendments agreed to.

Clause 42 [Criminal conduct]:

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 3:15 pm, 6th November 2006

moved Amendment No. 4:

Page 18, line 38, at end insert-

"( ) A person shall not be charged with an offence under this section if-

(a) it is alleged to have been committed in the United Kingdom, and (b) the corresponding offence under the law of England and Wales is punishable by life imprisonment."

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, those noble Lords who have assisted us in our consideration of the disciplinary offences in the Bill are to be commended on having achieved significant changes in the Bill in respect of those disciplinary offences. In addition to disciplinary offences, Clause 42, to which my amendment refers, gives to the court martial jurisdiction over a person subject to service law or a civilian subject to service discipline in respect of any offence punishable by the law of England and Wales. It is familiar from the Army Act that the court martial can try a person for committing what is called in Army terms a civil offence—an offence as serious as murder, manslaughter, rape or any offence punishable by the criminal law.

The purpose of my amendments is to maintain the present position. The present position traditionally has been that if a serious offence of treason, murder, manslaughter or rape is committed in the United Kingdom, as opposed to abroad, by a soldier or serviceman or a civilian subject to service discipline, those offences cannot be tried by way of court martial but can be tried only in the Crown Court. That is the position today. For some reason, which has not been adequately explained, although I have pressed the matter both in Committee and on Report, the Government think that it is right to extend the jurisdiction of the court martial court to encompass any criminal offence. Whereas today, a serviceman who commits murder in the United Kingdom can be tried only by a Crown Court, with all the procedural safeguards that that involves, in future, someone—it is not clear who, but presumably the new director of service prosecutions—will be able to say, "Well, although this act has been committed in a part of London—you are alleged to have murdered somebody in London—nevertheless, you are a serviceman, you work for the services, or you are the child of a serviceman and are therefore subject to service law". Someone can decide that the ordinary Crown Court is not the requisite place to be tried and may order, under the provisions introduced by the Bill for the first time in history—certainly since the Army Act 1955—that the person can be tried by court martial.

What is the reason for that? I suspect that it is a way of upping the profile of the new court martial court. What about the impact on the defendant, who has all sorts of procedural safeguards in the Crown Court that do not exist in the military court? For example, in the military court he may be tried and convicted of murder by a majority of 3:2 as opposed to the unanimous verdict of a jury, or at the very most a verdict with a majority of 10:2 in the Crown Court.

There are other safeguards, but I shall not weary your Lordships by listing them all. The Government's response on Report was that it was anomalous that there is an exception in relation to murder, manslaughter, rape and treason because there are other offences punishable by life imprisonment, such as serious sexual offences, which are not exempted. So why should you have one and why have the other? The answer is not to give the court martial jurisdiction over murder, et cetera, committed in the United Kingdom. It is to say that any serious offence that carries life imprisonment should not be tried by a court martial in this country. I have conceded that if murders or other serious offences are committed abroad, it may be appropriate, but only as a second best, for the court martial to deal with those cases.

I argued in the case of Martin—a boy of 17 whose father was a serving soldier—which went before the Judicial Committee of your Lordships House, that it is wrong, even when an offence is committed abroad, for a civilian to be tried by way of court martial in front of a row of officers. We did not succeed in that case in the House of Lords in 1997 because their Lordships held that you could not call it an abuse of process when Parliament had many years ago decided that it could be done. But the Human Rights Act was not in force at that time. The matter went to the European Court, and it has taken 10 years—until last week—for that court to pronounce. It has decided unanimously that that should not have happened, and that only in the most exceptional circumstances should a civilian be tried by way of court martial for serious offences, even if they are committed abroad.

The European Court has expressed its strong view on this in relation to civilians, but the amendment relates to courts martial having jurisdiction over offences committed in the United Kingdom. I should be interested to know how many judge advocates have tried a murder case. I would not have thought there had been more than three or four such cases in the past 10 years. I can think of only one successful prosecution of a murder case—possibly two if I include Northern Ireland. There is little experience—perhaps that is the best way to put it—among judge advocates. As far as I know, they do not carry rape tickets or murder tickets, as Crown Court judges have to do before they can try such cases. If they do have such tickets, no doubt the Minister will inform us. There is a lack of experience in trying what are the most complicated cases. Murder cases introduce concepts of provocation, self-defence, manslaughter and so on, as alternatives, which are not easy to resolve.

The Minister and the Government have rightly listened to the contributions of the military people who have commented on the Bill, but they have not listened to the contributions of people experienced in that legal system. In many ways, they have not adopted the recommendations of the Judge Advocate General, Judge Blackett. He was a serving naval officer who retired to become the Judge Advocate General and he was appointed circuit judge. He made recommendations which would have improved the procedural safeguards at courts martial. I have advanced many of those in amendments which have been rejected by the Government. I have already declared to your Lordships my own interest in this area of the criminal law, but I venture to say that I have appeared in more military murder cases than anyone else I can think of at the moment. Why do the Government not listen to lawyers? Presumably lawyers do not matter. Often that is the view expressed, if not openly, certainly implicitly in your Lordships' House.

At the end of the day, we are concerned with fair trials. The European Court has said that one does not get a fair trial in front of a row of military officers if one is a civilian. Yet the Government are missingan opportunity with this Bill to reform radicallythe military justice system to bring it into the21st century. They have not gone far enough. That is their problem. The forces of tradition and the forces of the services have been too much. I hope I have indicated to your Lordships the importance that I attach to this amendment. I beg to move.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, I have listened carefully to what the noble Lord has said. I know that he is enormously experienced in these matters. If this offence occurred in Scotland, should paragraph (b) of the amendment not refer to the corresponding offence under the law of Scotland as well?

Photo of Lord Lyell Lord Lyell Conservative

My Lords, I am a near neighbour of my noble friend Lady Carnegy. There is a very well known military establishment in the county of Angus and several other military establishments. What is the situation? Could the noble Lord clarify it?

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 military in Scotland will be subject to the Bill. It will be open to the Director of Service Prosecutions to determine that an offence of murder committed in Scotland by a serviceman or a civilian subject to service law can be tried by a court martial.

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

My Lords, in our earlier debates, the noble Lord, Lord Thomas of Gresford, sought to prevent this Bill extending the jurisdiction of the military criminal justice system in relation to most serious offences committed in the United Kingdom. He argued for retaining the current legislative position and proposed an amendment that followed almost exactly the wording of Section 70(4) of the Army Act. On Report, I argued that such an approach would retain a significant anomaly that even now produces undesirable effects in relation to a small number of the most serious criminal conduct offences.

I believe that the noble Lord, Lord Thomas of Gresford, accepted the argument that the current system was anomalous, but he now seeks to address the anomalous position not by removing it, but simply by expanding its undesirable effects. Amendment No. 4 is a retrograde step. As I made clear when we debated this on Report, it is anomalous that the services can deal with many very serious offences committed in the UK carrying sentences of up to life imprisonment but not others. The Bill proposes to remove that anomaly to create a comprehensive system of service law. Why is that so important?

First, we must keep at the front of our minds what our forces are required to do and where they are required to do it. We frequently, perhaps increasingly frequently, deploy them overseas. Sometimes we deploy them to places where there is a perfectly acceptable legal system; sometimes we deploy them to places where there is no legal system at all. Sometimes we send them on operations that require them to work in conditions of physical hardship and, often, great danger. However, we expect them to behave impeccably at all times and in every circumstance, not only when they are called upon to apply lethal force.

Secondly, the current exclusion in the service discipline Acts prevents the services dealing with cases even when they are best placed to do so. For example, where a death occurs in military training in the UK, are not the services best placed to investigate and judge the degree of negligence involved, the relevance of the training given and other elements of the service context? That must be the relevant consideration for which court deals with an offence, not, as the noble Lord, Lord Thomas, suggested, the fact that a serviceman sent to prison for life will serve that sentence with ordinary criminals who were tried by the Crown Court.

Thirdly, the present exclusion can prevent the joint trial of matters which should be charged together. This point operates in two ways: first, where an incident may be dealt with by a combination of both criminal and disciplinary offences; and secondly, where a series of offences has been committed in the UK and overseas. If I may say so, the noble Lord fails to see that serious incidents may give rise to disciplinary and criminal offences. An example might be charging manslaughter along with a disciplinary charge such as disobedience of a lawful command, negligent performance of duty, dangerous flying or hazarding a ship. Only a service court can deal with them together. Should dealing with them together not be possible in relation to an incident which occurred in the service context in the UK? It is not difficult to think of other examples of offences based on those additional criminal offences that the noble Lord wishes to add—for example, possession of a firearm with intent to endanger life, or grievous bodily harm.

Finally, the noble Lord, Lord Thomas of Gresford, conceded that there was good reason for a military system to deal with offences that occurred overseas. But, given that our personnel move so frequently between states, it is quite easy to see circumstances where someone may have committed a series of serious offences in different countries, including the UK. These are not far-fetched possibilities; they reflect the practical issues that flow directly from the way our services operate.

I recently wrote to the noble Lord, Lord Thomas, and provided details of two recent cases which illustrate the principle. The first concerned a soldier alleged to have committed offences of violence against service personnel in the United Kingdom and in Canada, who subsequently faced a charge of attempted murder in the UK which was dealt with in the UK civilian system. The second was a former soldier alleged to have raped the same female in the UK and Germany. Each demonstrated the current limitations of the civilian courts, and by contrastthe flexibility of the service courts, to deal withsuch cases. The amendment would extend the circumstances in which such limitations would impact upon the administration of justice.

I have already told the House that we do not propose that, under the Bill, murder, rape or treason alleged to have been committed by a serviceman in the United Kingdom will normally be investigated and tried within the service system.

The noble Lord, Lord Thomas, in our last debate asked who would decide whether a case would be dealt with in the service or civilian jurisdiction. The answer to that is clear. Our aim is that in relation to all serious offences, as is the case now, a decision should be made in accordance with Home Office protocols on which jurisdiction is the more appropriate. The decision should be made under those protocols by the civilian authorities, whether the police or the Crown Prosecution Service, on the basis of the principles set out in the protocols. Broadly speaking, if the case has any significant civilian context—for example, a civilian victim—the civilian jurisdiction should prevail. This is a common-sense approach which the amendment would deny.

Perhaps the greatest practical difficulty which the current exclusion has caused is in relation not even to trial, but to investigations and the use of service police powers. The present legislation and the Bill provide for the investigation, arrest, custody, search or charge by the service police for offences within the service jurisdiction. The current anomaly therefore has the following effect: if a soldier is abroad but is suspected of murder, manslaughter or rape in the United Kingdom, it is at least doubtful whether the service police can undertake searches abroad for evidence of the offence, arrest the suspect or hold the suspect in custody even at the request of UK civilian police. That is unsatisfactory. That is why we propose to remove the provision and why we cannot accept this amendment, which would make the situation much worse and tie the hands of the service police in relation to a large number of other offences.

The noble Lord has cited a number of examples where the court martial will be different from the Crown Court, and concluded that as a result the court martial will be deficient. I cannot accept any such suggestion. 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 as good as the civilian system and appropriate for the services. It must be capable of operating in a service context and have due regard to it. That context can be important in all circumstances of military life, not just on operations. That is because, as I have explained, it is essential for members of the Armed Forces, whether at home or abroad, to have the highest standards of readiness and discipline at all times. It is also important for the service context to be given due weight in relation to any offence, whether or not it occurs on operations.

As I have said in earlier debates, the military justice system is well able to deal with the most serious of cases and from time to time sees the participation of High Court judges and senior civilian counsel. 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. I see no reason why an ECHR-compliant court such as the court martial should not be able to exercise these powers in the United Kingdom when it may do so abroad.

As I have set out, 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 interests of justice would not be best served by this amendment. For the reasons I have given, I ask the noble Lord to withdraw it.

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 3:30 pm, 6th November 2006

My Lords, the noble Lord said that I was suggesting that the court martial system was deficient. Your Lordships might not take it from me, but you might take it from the unanimous decision of the European Court of Human Rights, pronounced a fortnight ago. It said that it was impossible to get a fair trial except in the most exceptional circumstances relating to civilians anywhere in the world. I am concerned about the current situation in the United Kingdom.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, was not the deficiency identified in our court-martial system prior to changes that we have already made to it?

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, certainly there were two grounds upon which the European Court held. The first was in relation to the complaint that a 17 year-old civilian boy had been tried before a court martial—that that was highly undesirable and did not result in a fair trial. Secondly, since it preceded the case referred to, the Court held that it was also procedurally wrong. The advances that have been made in court martials, in trying to bring them up to date, have been made as a result of defence applications to the European Court—decisions of the European Court which the Government have been forced to follow.

The Minister says that our aim is to achieve a military system of justice equivalent to the civilian system. It could have been achieved in this Bill if the Government had listened to the advice of the Judge Advocate General in important respects and accepted some of the amendments.

The Minister says that investigations by the service police abroad would be at least doubtful. As your Lordships are well aware, service police do not have the highest track record in the investigation of crime. In numerous cases of which your Lordships are aware, the service police have fallen down and acquittals have followed.

The system was second best. It could have been made equivalent to the Crown Court system but that opportunity has been missed. In this matter, the extension of jurisdiction over offences committed in this country to the court martial and the removal of cases from the Crown Court clearly impact on an individual defendant's rights—his right to be tried by his peers instead of appearing in front of a panel of officers.

The combination of disciplinary charges and serious offences put forward by the Minister presents no argument. He himself has said that there were disciplinary offences in one case charged in Canada, but the serious offence was dealt with by the civil court in this country. As for somebody raping a lady abroad and then raping the same lady in this country, we all know that even though he might not be tried for the rape abroad, all the evidence in relation to it would be admissible in a trial in this country on a basis of similar facts, a similar system or whatever—certainly under some of the legislation passed by this Government in the past three years.

The reasons for extending jurisdiction have simply not been made and I cannot accept the Minister's explanations. However, I pay tribute to him for the way that he has conducted this Bill—he has done a tremendous job in keeping us informed as things go along. There is no personal criticism involved, but I do not accept his arguments and I seek to obtain the opinion of your Lordships' 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.

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 3:50 pm, 6th November 2006

moved Amendment No. 5:

Page 18, line 40, at end insert-

"( ) No civilian subject to service discipline under the age of 18 years may be prosecuted before the Court Martial for an offence under this section."

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, Amendment No. 5 follows on from some of my remarks on Amendment No. 4, which I do not propose to repeat. The wording of the amendment echoes the decision of the European Court that was delivered last week. Perhaps I may remind your Lordships that Sir Nicolas Bratza was the number two in that court, sitting next to the president. He is a highly distinguished jurist from this country who used to represent the Government in many cases.

I have indicated the circumstances of the case. Paragraph 43 of the decision of the court states that the court,

"recalls, by way of preliminary remark, that there is nothing in the provisions of Article 6 to exclude the determination by service tribunals of criminal charges against service personnel. The question to be answered in each case is whether the individual's doubts about the independence and impartiality of a particular court-martial can be considered to be objectively justified and, in particular, whether there were sufficient guarantees to exclude any such legitimate doubts".

That is the position with regard to service personnel. The court said that it is,

"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 ... 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".

In the particular case, it was not finally decided whether there were compelling reasons, but the issue concerned whether a number of witnesses would have to be flown from Germany to this country. The fact that, when the trial was held in Germany, witnesses not simply from the UK but from all over the world were flown in to give evidence is perhaps to be noted.

The final conclusion was that the 17 year-old boy was justified. In its decision, the court says that it,

"considers ... concerns about the independence and impartiality of his tribunal to be objectively justified. Accordingly it finds that there has been a violation of Article 6 §1 of the Convention".

As your Lordships know, Article 6.1 deals with the need for a fair trial. I submit to your Lordships that there should be developed, along with the service civilian court, a civilian jurisdiction for juveniles in which the case is tried not by officers, but by a judge advocate, along with suitably qualified and experienced people who have had the same training for dealing with juveniles as magistrates have had. That is how juveniles should be dealt with.

We were told on Report that there are 20,000 juveniles with service people overseas. So an awful lot of youngsters are involved. If they commit more serious offences such as murder and manslaughter—the very rare cases where one sees a juvenile person tried in the Crown court—they should be tried in a Crown court in this country in the ordinary way. We currently try in this country offences involving alleged homicide which have taken place overseas. Your Lordships will remember particularly last September's case at Colchester, where paratroopers were tried for murder. There is no reason why juveniles who are charged with murder cannot be tried in this country.

Unfortunately, this Bill misses the opportunity and misses the trick. From Second Reading through all its stages, we have advanced the argument that juveniles should be dealt with as they are in this country. The Government have not listened on this occasion. Again, I make no personal criticism of the Minister, but it is a fact that a youngster in the same situation as the defendant Martin would be liable to be charged and tried abroad by court martial if the circumstances were appropriate.

This is not acceptable. We are living in the21st century. There are people, particularly those who sit on the Cross-Benches, who devote their lives tothe problems of youngsters and who have made significant contributions to looking after their welfare. That is the issue of principle that arises here. I have not, though I was very much tempted, extended my amendment to cover all civilians, which would be in line with the judgment of the European Court that I quoted to your Lordships. I have confined it to the specific instance of juveniles. I shall seek your Lordships' support in due course after hearing what the Minister says. I beg to move.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I remind the House of my interest as a serving TA officer. I have a lot of sympathy for this amendment, because I would not want to find myself on a court martial dealing with such a case. However, the amendment makes no provision for an alternative. If your Lordships accept it, how and where would serious charges other than manslaughter and murder, which can be dealt with in the Crown court, be prosecuted? Unless the noble Lord can provide an answer, he should exercise some caution before testing the opinion of your Lordships' House.

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

My Lords, Amendment No. 5 would prevent civilians who are under 18 years of age from being tried before the court martial. On24 October, the European Court of Human Rights gave its judgment in the case of Martin. We need to be clear about what it decided.

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 subjectto the same objections as were found to exist inthe Findlay case in 1996, which were remedied by the Armed Forces Act 1996. It is no surprise that the European Court decided in Martin that the court martial was not compliant. The European Court did not decide that courts martial should not try civilians, or that they should not try civilian juveniles; it stated the important principle that a military jurisdiction should be exercised over civilians only if there are compelling reasons to do so. In the case of 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 court martial trial. It did not need to, because it decided the case on the basis that the court martial at that time was not compliant. The court did not go into what it thought would be compelling reasons.

In the Martincase, the reasons for court martial trial were mainly to do with the availability of witnesses, most of whom were German. However, there were case-specific factors that might have suggested that it would have been better to try him in a UK court: 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 commented that it had considerable doubts about whether it would have found the reasons for court martial trial compelling in this particular case.

Looking more generally, however, I believe that we should provide for all civilians subject to service discipline to be subject to a system of investigation and trial that will apply the criminal law of England and Wales, that conducts its proceedings in English and that is ECHR compliant. This is especially important for contractors and others who increasingly accompany our forces on operations abroad. It is in the vital interests of the services themselves, of the civilians who live and work with them and of the civilian population among whom they operate that there is a fair and robust system of justice outside the UK 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. But the largest constituency affected is service families overseas, and we realise that some 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. If an accused is convicted, his punishment may not be one that exists in the UK and any period of detention would not be served in the UK.

Perhaps, however, I can allay some of the fears that noble Lords may have about juveniles routinely being tried by the court martial. This simply will not be the case. In the vast majority of cases, civilians will be tried in the service civilian court, which is of course presided over by a civilian judge advocate. In relation to adults, this court has the same powers as a magistrates' court in England and Wales, which means that for an adult accused it may try any offence that in England would not have to be tried in the Crown court.

However, in relation to juveniles, the offences that the service civilian court may try are more numerous. When dealing with a juvenile, the service civilian court has the same powers as a youth court in England and Wales. This means that the service civilian court is able to try any offence of which a juvenile is accused except the homicide offences, certain firearms offences and offences where an adult would face 14 years' imprisonment.

Noble Lords will see, therefore, that only in exceptional circumstances would a juvenile civilian appear before the court martial. On those occasions when they do, the court will of course be presided over by a civilian judge advocate who will have had the same training as Crown court judges in relation to juveniles. Furthermore, in the Bill we have the ability to provide that, when civilians appear before the court martial, the lay members are themselves civilians—indeed, it may be that the entire panel will be civilian. These provisions will be contained in court martial rules, which will be subject to the affirmative resolution procedure, so noble Lords will have adequate opportunity to scrutinise them in due course.

I hope that the provisions in relation to civilians and juveniles in particular will lead noble Lords to see the amendment as unnecessary and undesirable. In view of the reasons that I have given, I hope that the noble Lord will agree to 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 4:00 pm, 6th November 2006

My Lords, the noble Earl, Lord Attlee, has pointed out the gap or hole in the Bill. In response, the Minister pointed to the fact that a juvenile will be dealt with by a single judge advocate who has the powers of a judge in a youth court. Does that judge advocate have the training? It cannot be imagined that a senior judge advocate will be sitting over juveniles. He is apparently not to be assisted by any lay people with experience in dealing with children, as happens in the juvenile courts in England and Wales and the juvenile panels in Scotland. So there is a hole.

The noble Earl, Lord Attlee, is right to say that we have not filled the hole. I do not think that I can. I cannot import into this Bill a whole provision for setting up a satisfactory youth court that will be the equivalent of the youth courts and youth panels in this country and have that sort of experience to accompany it. Some 20,000 of our juvenile citizens, if they are in trouble, will come before a judge advocate—very probably a deputy judge advocate who comes from the Bar for the purpose, without the proper training or the knowledge of all the possibilities for rehabilitation and so on that apply in our youth courts and youth panels.

So there is a hole. It is impossible for me to fill it by an amendment to the Bill, but it is important that your Lordships should sound a note of principle to indicate that there is more work to be done and that we have not reached the final position on military justice by passing this Bill. The opportunity has been missed, and that is sad. I should have wished this to be a complete Bill that would have covered the whole situation for the next 10, 20 or 30 years. But that is not the case. There is a hole in the Bill, and I hope that noble Lords will mark that hole by supporting the amendment. I should like to seek the opinion of the House.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 54; Not-Contents, 175.

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

Aye: 52 Members of the House of Lords

No: 173 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.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence 4:20 pm, 6th November 2006

moved Amendment No. 6:

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, I am grateful to the Minister for his agreement on Report that we should defer debating this amendment until Third Reading. Amendment No. 6 would constrain the manner in which those members of the Armed Forces under the age of 18 may be used and treated. There would be a prohibition on service in combat areas, and they would be prohibited from guarding using live weapons. The amendment also requires special handling of those members of the Armed Forces who are under 17.

I described in Committee how the amendment would implement the clear recommendations stemming from Nicholas Blake QC's investigation into the tragedy of Deepcut barracks. I also explained our disappointment over the Government's response to the Blake report. I remind your Lordships what the Blake report said. Recommendation 3 was:

"The Army should plan to eliminate the need for soldiers to join their units in the field army on completion of Phase 1 and 2 training until they reach the age of 18".

Recommendation 27(iii) said:

"The minimum age for trained soldiers in the field army to conduct unsupervised armed guard duty should be 18".

Recommendation 2(i) said:

"Those under 17 should be trained in establishments exclusive to this age group".

The Government, in their response to the report, have given various reasons why they are either unwilling or do not have the resources to implement those recommendations.

In any event, it should not have needed the horrors that we all read about and debated following Deepcut to make the Government face up to their responsibilities in this area. On 24 July 2003, the United Kingdom ratified the UN optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. This protocol says in Article 1:

"States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities".

Article 3 recognises that,

"persons under the age of 18 years are entitled to special protection".

The amendment both deals with the Blake recommendations and brings us in line with what we have ratified in the UN protocol.

The Minister wrote to me on 24 October. I, too, pay tribute to the ceaseless work that both he and the staff have done in briefing us and keeping us aware. The problem is that there is always no change; and there are always explanations of why there is no intent to modernise in this Bill, but merely to bring together ancient law. I would be grateful if the Minister could tell us which other European nations take the view that under-18s can be put into combat. His letter tells me that the proposals by Blake and ourselves regarding combat areas ignore,

"the practical reality that does very occasionally arise. For example, ships have been diverted to operations at minutes' notice".

That means that the MoD is in breach of its obligations under the protocol. It should not place under-18s in a position where it knows that this may happen. It is not terribly difficult to keep them in the training area if there are going to be under-18s in the armed services. If the MoD is to hold to its position where the United Kingdom is internationally criticised for its policy and will not put in place these most basic safeguards, we shall subsequently need to examine carefully whether recruiting under-18s into the military should continue in this country. 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. I believe that it would be inappropriate and unnecessarily restrictive to put such a provision in statutory form, worthy though some of the motives behind doing so may be.

There are long-established and important procedures relating to under-18s, some of which the noble Lord referred to in Committee. These are designed to protect the safety of juvenile service personnel and to control their exposure to dangerous situations. Such guidance will undoubtedly be further updated following the Deepcut inquiry. There is no need to tie the hands of the Armed Forces by having these restrictions in statutory form. That could compromise the efforts of our services in certain limited situations. There are already safeguards in place and severe recriminations when guidelines are not followed.

If the noble Lord, Lord Garden, decides to call another Division, we will vote against the amendment.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I oppose the amendment. First, new subsection (1) does not have sufficient flexibility to implement the UN protocol. For instance, as drafted, it would mean that service personnel under 18 could not deploy on overseas exercises or ships—certainly not overseas exercises outside NATO or EU states. A good example was the exercise Saif Sareea in 2001 in Oman, which partially morphed into operations.

Secondly, subsection (2) is still ambiguously drafted. Is a live weapon one with live rounds in it, or one that works? Either way, I believe that it is morally and doctrinally wrong to put on guard a service person with an impotent firearm.

Thirdly, if under-18s cannot undertake armed guard duty, will that not lead to some installations not being provided with an armed guard at all because it is unfair to overload over-18s with armed guard duty? The military provost guard service is not a free service; it is not even cheap.

Finally, under-18s could have been in uniform for 12 months and they will not thank noble Lords on the Liberal Democrat Benches, because the advantage that they sought by starting their service careers early will be to some extent lost and they will be made into second-tier servicepersons unable to perform all military tasks. Possibly even worse, the Armed Forces Pay Review Board might have to look at their already meagre pay.

Photo of Lord Lyell Lord Lyell Conservative

My Lords, I listened carefully to the noble Lord, Lord Garden, presenting and explaining his amendment. When I looked at it before he spoke, it seemed like a multiple independent military vehicle. First, it says clearly in subsection (1):

"under the age of 18".

I was not aware until my noble friend Lord Attlee spoke that training for such action could begin at such a young age.

I apologise for taking your Lordships back to 1957 when I served for two years under the National Service Act, and three members of my squad celebrated their 18th birthdays during the first three weeks of our training. I know that circumstances have changed. I hope that the Minister will not dally unduly with my sundry thoughts. Perhaps he will cover my queries in writing; I am not asking for a reply this afternoon. I am interested to know that it would be possible for young men, and possibly young women, under the age of 18 to serve in combat areas. Indeed, the noble Lord, Lord Garden, explained that detailing who will or will not be in their 19th year in a ship's company when the ship might be called into action would be extraordinarily difficult. Such a provision would be extraordinarily hard for all three services, especially as they are now.

I have great sympathy with subsection (2) and understand it, thanks to the tragic events at Deepcut. But how would that subsection mix with what we understand from subsection (1), and with what my noble friend said—that young men and women may start their training at the age of 17? If they are permitted to serve in a combat area or are deemed safe to use live weapons, why should they be proscribed from carrying out guard duty with live weapons under the watershed age of 18? I look forward to hearing what the Minister has to say about subsection (3) which says:

"dedicated locations, and particular attention is to be given to their care".

That is praiseworthy but no doubt the Minister will have an excellent explanation. I do not seek to waste more of your Lordships' time this afternoon.

Photo of Viscount Slim Viscount Slim Crossbench 4:30 pm, 6th November 2006

My Lords, I may be corrected, but while going around the apprentice college at Harrogate and the subsequent training facility at Catterick, I have observed that one can be a trained soldier at 17 just as well as at 18. They have the same responsibilities. One cannot base something on a terrible scene in one area, which none of us liked and which had nothing to do with people being 17. There were other reasons for those problems. If we start to create second-class soldiers, as one or two noble Lords have said, we will have grave problems.

I have looked hard at the apprentice school in Harrogate and the subsequent training at Catterick, as I have had the great privilege of spending some time there. I do not see much difference between what comes out of either pile. In the last world war, young men of 17 and 16 in the Home Guard carried loaded weapons and were prepared to fire them if the enemy landed. Many 17 year-olds joined up saying they were 18 and did remarkably well. Giving them special treatment will do nothing but have an adverse effect on recruitment. I cannot support the noble Lord, Lord Garden, with all his best intentions, in this amendment.

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

My Lords, before turning to Amendment No. 6, I want to say that during our most useful debate in Committee, the noble Lord, Lord Garden, mentioned that I may have been mistaken in referring to recruits under the age of 18 at Harrogate. Of course, he was quite correct in believing that the training facilities at Harrogate were exclusively for those under 17 rather than under 18. While he graciously conceded that that was a minor point, my use of the generic term "under 18" was clearly not right in that context. I gladly now put the record straight by emphasising that the training facilities at Harrogate are, indeed, for under-17s.

The noble Lord, Lord Garden, expressed the view that he was disappointed with our response to Nicholas Blake in the Deepcut review, specifically in relation to our duty of care towards service personnel under the age of 18. I can assure noble Lords that the Ministry of Defence welcomed Mr Blake's report. Many of the recommendations were accepted and some have already been acted upon.

On the accommodation of those under the age of 17, I can only repeat and re-emphasise what I have said previously. We fully appreciate the specific requirements of those under the age of 18. Therefore, although the Army has some training facilities exclusively for recruits under the age of 17 at Harrogate and Bassingbourn, with some under-17s also being trained at other training establishments, we do not believe that accommodating under-17s separately from their colleagues is an appropriate approach to adopt across the whole of the Armed Forces. We are instead concentrating on improving accommodation for all recruits. Improvements to the training environment will continue to be taken forward through the defence training review.

As I told noble Lords, an important aspect of a serviceperson's training and of service life is the ability and confidence to handle live weapons. A fully trained and qualified service man or woman must be able to bear arms in legitimate pursuit of the operational imperative, and we would not want to rule out the possibility of suitably qualified personnel aged 17 or over having been judged by their commanding officer to have the maturity and appropriate attitude to take personal responsibility for a firearm with live rounds being able to do so.

As I have made it clear, under-17s entrusted to do that are accompanied by an appropriately trained and qualified serviceperson when they undertake armed patrolling duties. Those supervising, and indeed all in the chain of command, fully appreciate the weight of those responsibilities and take appropriate measures in relation to the safety and well-being of those young people. In relation to the use of under-18s in operations, the United Kingdom position is the result of a historical anomaly. It is based on a relatively recent assessment of the requirements of the services and our obligations under the United Nations convention. Indeed, guidance issued to the services ensures that if units are given notice to deploy to operations, under-18s will almost invariably be removed.

The decision to remove a serviceperson under the age of 18 from a ship or unit before deploying will be taken whenever possible, but that decision must be balanced against the effect that it might have on the ability to successfully achieve the military aim. For example, if a rapid deployment is essential and that deployment is mounted from other than the home base, it might not be possible to remove someone under 18 to safety. We can no longer rely on the relatively static disposition of our forces on the European mainland. We must accept that if units, particularly ships but also other detached units—as is increasingly common these days—are already deployed and an emergency arises, while every practical step will be taken to remove or land under-18s, that simply might not be possible.

In recent years, HMS "Illustrious" was deployed with no notice from exercises in the Bay of Biscay to support operations in Sierra Leone. The tragic events of 9/11 occurred while significant numbers of UK forces were transiting to or deployed in Oman. The recent evacuation of civilians from the Lebanon was conducted in large part by ships already in the area. Noble Lords will know that events can turn as quickly as this and that our forces must be prepared to deal with them when and where they arise. We fully recognise our responsibility towards under-18s. That is why in almost every case under-18s will not face hostilities. That said, we must not underestimate the importance to the services of the fact that under-18s who have completed their training can be employed immediately in front-line ships and units. It is true that in exceptional circumstances that might expose them to hostilities, but as I have demonstrated, the likelihood is extremely low.

The UK's declaration on signing the UN protocol makes it clear that we do all we can and we could not be more aware of our obligations in that area. We believe that our policies on under-18s are robust and compliant with national and international law, but we continue to keep them under review.

Let me be clear about our position on service personnel under the age of 18 serving in combat zones. Of course we would prefer to be able to offer a cast-iron guarantee that this situation would never arise, but while every precaution is taken to avoid the potential for that to happen, a small risk remains, even with the most careful thought and planning. I attach the utmost importance to our duty of care for all our service personnel. We need to consider carefully how we may best achieve that by balancing our obligations towards those aged under 18, reflecting their particular needs and at the same time avoiding the risk of causing barriers between them and their older colleagues. I remain confident that the needs of service personnel under the age of 18 are being properly addressed and that there is no need to introduce primary legislation to enforce special provision for these young service men and women.

The noble Lord, Lord Garden, asked me which other European nations put under-18s into combat, and the answer is none. However, many of those countries have systems of national service and conscription and operate in a non-expeditionary role, which is quite different from us. It is therefore not a fair comparison.

Although I fully understand the noble Lord's genuine and strongly held views in this area, I hope that he is now reassured by my explanation and is prepared to withdraw the amendment.

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

My Lords, the Minister will be unsurprised that I have not been reassured by his reiteration of the Government's position. Various noble Lords explained why it is difficult to do the things that this amendment requires. It is certainly difficult, but there is an international perspective that 18 is the make-or-break age for whether someone should be in combat wearing a uniform. That can be seen in the UN protocol, in the definition of child soldiers and in the way the rest of Europe acts. I am most grateful to the Minister for confirming—I thought it would be better coming from him—that no other European nation has under-18s. To say that they do not deploy is not correct; just look at Afghanistan at the moment. It was an extraordinary statement. The argument used by some noble Lords about soldiers being very good at 17 works just as well if they are 13. Why do we take a particular age? We take it because there is an international standardof 18.

Then there is Deepcut. Over a prolonged period, noble Lords showed their horror at what happened there. It is a separate matter, a subset of this under-18 question. We questioned how it could happen and, after so much angst, we welcomed a proper inquiry into it by a respected QC. When we read his report, some of us thought that he did not go far enough in some of his recommendations. Nevertheless, it was an objective assessment. He made some simple recommendations, and I remind noble Lords that when he said that he was prepared to accept the continuation of under-18s in the Armed Forces as servicemen, he did so not on the grounds of recruitment, which is the argument normally made by the Ministry of Defence, but on the grounds of education; he felt they got a better education if they were in the services than they might get in the state system between the ages of 16 and 18. That was why he justified it, but he did so with the caveat that his recommendations should be implemented.

We all know that the MoD will not agree to under-17s having special areas because of the resources question. The noble Earl, Lord Attlee, says that subsection (2) in the amendment is impractical because there are insufficient resources. We are talking about budgetary concerns, when there is an international standard for under-18s. While I accept that there will be some exercises in which under-18s will not be able to participate, that is a relatively small price to pay to raise ourselves to normal, international, civilised standards. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 6) shall be agreed to?

Their Lordships divided: Contents, 60; Not-Contents, 226*.

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

Aye: 58 Members of the House of Lords

No: 224 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.

* The number of Not-Contents was reported to the House as 227, because one additional name had been recorded in error.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence 4:56 pm, 6th November 2006

moved Amendment No. 7:

After Clause 359, insert the following new clause-

"FLIGHTS BY FOREIGN AIRCRAFTS 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, I shall be brief in moving Amendment No. 7, not because it is unimportant but because we discussed it at each stage of the Bill when noble Lords were most helpful in developing its language. I considered the suggestions made by the noble Earl, Lord Attlee, on Report about the importance of broadening the scope of the amendment to cover all the services rather than only the commanding officer. While I am sympathetic to that, we have achieved a wording that is focused and appropriate and that received a degree of consensus around the House on Report.

The aim of the amendment is to ensure that commanding officers are not put in an impossible position when mysterious foreign aircraft are given clearance to make use of their facilities. I remind noble Lords that such occasions have arisen at Royal Air Force Brize Norton and Royal Air Force Northolt, as we have heard. In getting the language right, I wish to acknowledge the great assistance given by the noble Lord, Lord Kingsland, in reminding us of the responsibilities of a commanding officer. They cannot be abrogated, which is an important element of the new clause. It makes it possible for the Defence Council to make the necessary regulations in order to clarify what commanding officers should do, although they cannot absolve themselves of their responsibilities under international law.

Our debates have inevitably focused specifically on extraordinary rendition and the universal abhorrence of such flights where suspects are transported to distant locations to be interrogated under conditions which amount to torture under the international definitions. I know that we will examine the amendment with that in mind. However, I have made it forward-looking in the sense that it gives the Defence Council the authority to look at other possible violations of international law. One might think of cases where there is a breaking of international sanctions in transferring weapons to a theatre by air or other breaches of international law.

This is the opportunity to give commanding officers the appropriate guidance so that they will not find themselves accused of, in the case of extraordinary rendition, helping to facilitate torture or other breaches of international law. Such cases can be brought. In Committee, I referred to a case in Italy where a military officer had been charged in connection with extraordinary rendition.

We have argued the case sufficiently and have all reached an agreement—including on the government Benches—that we abhor extraordinary rendition. This amendment would discharge our responsibilities to people in the military in difficult circumstances commanding military airfields through which flights are being directed under uncertain circumstances. I beg to move.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 5:00 pm, 6th November 2006

My Lords, I shall be brief. We now know, as the noble Lord, Lord Drayson, said on 12 October, that arrangements for these flights are,

"part of the normal arrangements between states".—[Hansard, 12/10/06; col. 440.]

We also know, from the noble Baroness, Lady Scotland of Asthal, on 18 October (at cols. 782 and 783 of the Official Report) that these were not arrangements made between the UK and the US. The grant to foreign aircraft to overfly or leave our military airfields in the UK was given by diplomatic clearance under "customary" and reciprocal international law of which the principles were not clear. That had happened "for decades", and the Chicago Convention does not apply. She also said that we expect that if there is something to do with rendition then they will tell us, but that there is no obligation to do so.

The right in this arrangement, which has apparently gone on for decades, is diplomatic clearance sought with or without permission. I do not know quite what that means. If you are seeking diplomatic clearance, I think that means that you are asking permission, and I assume that that permission is either without asking the purpose or not. I am a bit lost in that diplomatic sea.

Where do we go from here if that is right? The United Kingdom cannot unilaterally opt out of such an international arrangement, which by custom is not justiciable and could not be enforced in any court of law. Resorting to the ECHR, the Human Rights Act 1998 and other international conventions would also be excluded, as you cannot challenge the operation of diplomatic conventions in any court of law. This amendment is destined to drift into the "ebb-drawn shoals" of an Orcadian poet, in which the series of sister amendments already lies in limbo.

The intendment of this amendment could be dealt with through bilateral agreement between the United States and ourselves. That would require granting clearance to overfly and so forth—and taking off in the UK only if satisfied as to compliance with legal requirements and international obligations, the provisions for inspection provided by the US for take-off and with regard to passenger lists or bills of lading for cargoes of weaponry. It is not for me to draft the provisions of such an agreement, but I mention this to show the sort of arrangement that could be made by diplomacy. It is really beyond the point to ask why permission was granted for twoout of four flights. What happened to the large remainder? Why was no explanation of these arrangements—I am glad to see the noble Lord, Lord Triesman, in his place—given in response to my Unstarred Question, on which I was helped by my noble friend Lord Kingsland?

On 18 July, we had no inkling of what I have mentioned to your Lordships today. Indeed, no one had an inkling before 12 or 18 October. I am not saying this to criticise the Government because there is no use in doing so. Neither is there any use in asking a whole series of questions that you might as well ask Martin Gilliatt's one-glass-eyed teddy bear.

Photo of Lord Lyell Lord Lyell Conservative

My Lords, I hope that I will not be considered mischievous, but I wonder whether the noble Lord, Lord Garden, let alone my noble friend Lord Kingsland, might be able to explain "flights by foreign aircrafts", which is in the plural and in heavy print. To what do these refer? The noble Lord, Lord Garden, referred to two Royal Air Force stations—I think Brize Norton and Northolt. It may interest him to know about Royal Air Force Machrihanish, an airport with very large facilities that is not too far from the home of my noble friend Lord Lang of Monkton. Various sightings have been reported in the Scottish media of exotic types of aircraft, which I presume were on their way to various bases, perhaps elsewhere in Europe. I hope they are not flying saucers or other flying machines. The noble Lord, Lord Garden, and other noble Lords who have spoken have made a case for the Minister to clarify. I simply wonder why "foreign aircrafts" are in the plural.

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

My Lords, I spoke at some length in Committee about what I saw as the legal position on this matter, and I am most grateful to the noble Lord, Lord Garden, for his remarks about that this afternoon. I shall simply summarise to your Lordships once more what I believe that legal position to be. If a commanding officer on station apprehends that a foreign aircraft that has landed at his aerodrome contains someone who is on their way to being tortured, he has a binding legal duty to inspect the contents of that plane irrespective of any superior orders in the chain of command. If he does not do that, he will be complicit in the international crime of torture and personally liable to be prosecuted under international criminal law. Therefore, whatever amendment we make to the Bill on this matter will, strictly speaking, be irrelevant because the legal duty is there. It is inescapable for the Government.

Since Committee, the noble Lord, Lord Garden, has been thinking about how he can deal with this matter, and I am perfectly content with the amendment that he has come up with now. It seems in no way to cut across my analysis of the legal position. While I do not think it is necessary, it is in every other respect compliant, which is why I have put my name to it.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I strongly support this amendment. Our Armed Forces should have nothing to do with extraordinary rendition. It is just as abhorrent as slavery and as easy to detect. I accept the view put forward by the noble Lord, Lord Garden, on my amendment about widening the provision. But it is clear that an officer in the staff, in the chain of command, will be involved in the planning of any extraordinary rendition flight should it occur. The staff must be clear on their position and their legal responsibilities. I strongly support the amendment.

Photo of Lord Boyce Lord Boyce Crossbench

My Lords, I wish to approach this amendment from a slightly more practical point of view. The noble Lord, Lord Garden, has said that one reason for the amendment could be to avoid putting the commanding officer in an impossible situation. But the practical aspects of this will achieve exactly that and will put him in an impossible situation.

The responsibility for a foreign aircraft landing at one of our military airfields is with the Foreign Office, which gives the diplomatic clearance, not the commanding officer. If there is a suspicion or worry that an aircraft may be doing something improper, such as being used for extraordinary rendition, it is up to the Foreign Office to deny that flight. It is not for the commanding officer to sort out when he gets it on to his airfield. The noble Lord, Lord Kingsland, has made it clear that the amendment is unnecessary because there is a legal binding duty on him to search the aircraft if he thinks that there is extraordinary rendition. But he should not be expected to search every aircraft that arrives in case it is doing something illegal. That should not be his responsibility. If it is, it will lay on him a most enormous burden. In comprehending the implications of the amendment, we must also think about what will happen to our military aircraft when they go through other military airfields where, presumably, there will be some tit-for-tat and reciprocation in treating our aircraft similarly. I do not believe that this amendment is necessary.

Photo of Lord Inge Lord Inge Crossbench

My Lords, I will be brief. I strongly support the remarks just made by the noble and gallant Lord, Lord Boyce.

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 deal in some detail with all relevant issues that arise out of this amendment. Having done so, I hope that noble Lords will agree that it is not an appropriate clause for this Armed Forces Bill. As we have heard, the amendment obviously raises the issue of extraordinary rendition. I do not intend to spend any time on that, first, because the Government's position has been set out on many occasions and is clear, and, secondly, because I believe that when considering a Bill dealing with the Armed Forces it is not appropriate to be sidetracked from this. We all know that this Bill is principally designed to provide a system of law for our Armed Forces which will allow them to continue to operate to the high standards that they consistently achieve now and ensure that they do so well into the future. So I want to concentrate on the issues that are relevant to this Bill—the issues that are relevant to our Armed Forces—as I am sure do noble Lords. I consider that the only relevant issue is regarding the responsibilities of servicemen and, in particular, commanding officers. I can confirm that my noble friend Lord Triesman would be happy to offer noble Lords a detailed briefing and discussion to explain the legal aspects relating to extraordinary rendition if that were felt to be helpful.

The motivation of the noble Lord, Lord Garden, on this amendment is, I believe, the vulnerability of the commanding officer to criminal prosecution. I believe that that is misplaced in a number of respects with which I will now deal. It does not work and, even if it could be adjusted, it would add nothing to what is already provided for in general domestic law. First, I will deal with the arrangements that already exist for the handling of foreign aircraft at military facilities. Civilian aircraft are subject to the provisions of the Chicago Convention, which generally permits such aircraft to make flights into, or transit across, the territory of the United Kingdom. The convention does not prohibit UK civilian authorities entering the aircraft or dealing with any suspected criminal activity on board.

It is therefore open to the three authorities that have responsibility for our borders—the police, Her Majesty's Revenue and Customs and the UK Immigration Service—to carry out investigations if they consider that there is reason to suspect such criminal activity. This is of course subject to any diplomatic or sovereign immunity that applies. We cannot alter this. For example, if the Defence Council made regulations under this amendment that purported to empower our police to open diplomatic property, far from meeting international obligations, we would end up in breach of them.

Although they are not subject to the Chicago Convention, all foreign state aircraft, including military aircraft, must not fly over the territory of another state or land without authorisation by special agreement or otherwise. When a military aircraft wishes to fly over or land in the territory of the UK, whether at a military or a civilian airfield, it must obtain diplomatic flight clearance. Diplomatic clearance is a process that is designed to control UK airspace. If we were to suspect wrongdoing on aircraft, we could refuse clearance.

I know that some interest was expressed in the management of the process of diplomatic clearance. It is not relevant to the issues with which this amendment purports to deal, but, if it aids understanding, I am happy to explain it. Such clearances are dealt with by the MoD commitments staff who are responsible for the air defence of the United Kingdom. This process is designed to contribute to the defence of the UK, not to the enforcement of the criminal law. Bilateral agreements are in place with some countries that allow them not to apply for such clearance on a routine basis, but, even then, they must seek individual authority where they are carrying dangerous air cargo or VIPs.

Information on this procedure is provided by the MoD to all embassies and high commissions. It makes it clear that there are rules that apply to the granting of such clearance. The information includes, for example, reference to the applicability of customs and immigration requirements. It does not make specific reference to complying more generally with the domestic law or with international law, but such issues are taken as read. Where we give clearance, it does not provide any immunity to the aircraft to which it is granted, although foreign military aircraft and personnel sometimes have some immunity under international law.

The powers that our authorities could exercise in the circumstances would have to be decided by considering the facts of each case. It has to be recognised that we cannot override international law. However, I can assure the House that, should there be any evidence to suggest that any state was using the UK criminally to render people through it, the matter would immediately be taken up with the state involved to resolve the situation.

The Government are more than satisfied that the police, Her Majesty's Revenue and Customs and the UK Immigration Service have sufficient legal powers to deal with any criminal activity. What powers they can exercise over foreign individuals and property will depend on the circumstances, but this is governed by international law. We cannot introduce legislation that goes beyond what international law allows.

Subject to international law, our authorities are able to react to any intelligence that suggests that an offence is being committed when foreign aircraft transit through our jurisdiction, including our military airfields. The guidance issued to embassies is being updated by the MoD. I would be more than happy to undertake to leave a copy of that guidance in the House Library if it would be of assistance.

However, I hope that I have clarified in general terms what the process entails and, in particular, the fact that we already control the entry of such aircraft into our airspace and can deal with any criminal activities that they might undertake. The amendment would not add anything more to this.

I am afraid that subsection (2) of the proposed amendment would, again, add nothing. Of course commanding officers—like anyone else—must not become parties to crime. As for the commanding officers' "responsibilities under international treaties", I am afraid that this is a misunderstanding of how international law operates. Treaties are made by and between states. They create obligations and responsibilities for states and a breach of treaty obligations is a matter of state and not individual responsibility.

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 5:15 pm, 6th November 2006

My Lords, does the Minister not accept that a commanding officer who turned a blind eye to a person who was being taken through this country for the purpose of torture might be indicted before the International Criminal Court? It is not a question of international law in the broad sense of treaties and foreign affairs; our concern relates to the International Criminal Court and charges that might arise as a result of breaches of the Geneva Convention.

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 for making that point.

A treaty whose purpose is to criminalise certain behaviour achieves its effect through the domestic law. So, for example, grave breaches of the Geneva Conventions and torture are a crime under UK law because of our domestic legislation. By ratifying the Geneva Conventions, states expressly undertake to enact legislation necessary to provide effective penal sanctions. The position is much the same in relation to the torture convention. The convention does not require criminal liability to be imposed on a person unless they are a party to a crime. The reality is therefore that compliance with our domestic law will avoid any criminal responsibility.

But I would add that, if the commanding officer suspects that any offence is being committed, he should take what steps he can to ensure that it is investigated. He could not be told by anyone not to do so. Depending on the circumstances, it would probably be sufficient for him to call in the police. This would apply to any other serviceman, too, and indeed to any civilian who had such concerns. Of course he himself would commit a criminal offence only if the nature of his involvement crossed the threshold of criminal liability. If there was evidence that it had, this would quite rightly be a matter for the normal prosecutions and trial processes.

To conclude, we are satisfied that the processes for handling foreign aircraft already make sufficient provision for compliance with both domestic and international law. The amendment could not give any more powers than our authorities already have. Commanding officers are not exposed to an unfair risk of prosecution. Most important, a commanding officer should involve—

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I thank the Minister for giving way. Could consideration be given to my suggestion that there should be a bipartite diplomatic arrangement which in effect contained the intendment of the amendment? I will not go over that again. The noble Lord, Lord Triesman, may be able to help on this matter diplomatically. We are trying to establish this to show the world that we and the United States are wholly opposed to extraordinary rendition.

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 carefully read in Hansard what the noble Lord has said and reflect on whether there is any merit in what he suggests and whether it adds anything to legislation as it exists.

If any commanding officer were to become involved in criminal activity, he would be liable to prosecution under criminal law—and, of course, it is right that he should be. I hope that that reassures noble Lords on this matter and that as a result noble Lords will conclude that the amendment is unnecessary. I ask the noble Lord to withdraw it.

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

My Lords, I am grateful to the Minister for going into so much detail at Third Reading, much of which we have heard in relation not only to this Bill but to the Civil Aviation Bill and the Police and Justice Bill, when dealing with associated topics. Much of what he said was uncontentious, but he did not address the real question of what the poor commanding officer does.

I shall address some of the contributions made by other noble Lords. The noble Lord, Lord Lyell, asked where the extra "s" came from in "aircrafts" in the amendment. I have no idea where it came from. We have been moving quite rapidly with this Bill and the editing must have gone wrong.

The noble Lord, Lord Campbell of Alloway, referred to a bipartite arrangement. My concern is that we now have clear evidence that the definition of torture in the United States is not the definition of torture that we understand in the United Kingdom or elsewhere, given that the Vice-President can go on the media and apparently accept water boarding as a reasonable form of interrogation.

I am totally at one, in one sense, with the noble and gallant Lords, Lord Boyce and Lord Inge, in that what really worries me is that commanding officers are being put in an impossible position. That was the concern. We have heard from the noble Lord, Lord Kingsland, that there is no escape from this; the responsibility is clear. That is what subsection (2) of the amendment says—it merely restates the responsibility of commanding officers. The problem is how they handle these things. We have some guidance from the Minister, who says that if they have any reason to suspect things they had better go out there and sort it out. Perhaps that is an advance, but I would prefer there to be a Defence Council instruction that told them what they should do in specific circumstances. It is not a question of telling them to investigate every foreign aircraft that lands; it is a question of giving them guidance that they can turn to.

Even noble Lords have had great problems with establishing who is responsible for what under the Chicago or the Tokyo conventions and so on. We are talking about some poor commanding officer of an airfield, who has to make a judgment. For that, he must have guidance—and that guidance comes in the form of Defence Council instructions. We have not said that the Defence Council has to provide those instructions; we have said that it "may" provide them. Indeed, I hope that it would provide them—but I am unaware of their existing at the moment.

There is also a degree of confusion around your Lordships' House about diplomatic clearances. Unless systems have changed greatly since I was the commander of an operational airfield, diplomatic clearances are done en bloc, with a month's worth of flights to go to one place or another. That is different from diplomatic immunity—it is the system by which the flights are managed. My great concern is that if we are operating diplomatic block clearances for flights with a nation that has a different definition of torture, we may find that commanding officers are put in an impossible position, to use the phrase of the noble and gallant Lords. We have a duty to offer advice, and this clause would make it clear how that advice should be offered. I beg leave to test the opinion of the House.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 170.

Division number 4 Private Parking: Ports and Trading Estates — Armed Forces Bill

Aye: 67 Members of the House of Lords

No: 168 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.

Schedule 2 ["Schedule 2 offences"]:

Photo of Lord Drayson Lord Drayson Parliamentary Under-Secretary (Defence Procurement), Ministry of Defence, Parliamentary Under-Secretary (Ministry of Defence) (Procurement) 5:39 pm, 6th November 2006

moved Amendment No. 8:

Page 198, line 20, leave out "subsection (5) of that section applies" and insert "the accused intended to avoid a period of active service (within the meaning of that section)."

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)

My Lords, I beg to move that this Bill do now pass.

This has been my first experience of taking legislation through this House, and the reputation of this House for expertise and thorough scrutiny seems to me to be well deserved. This is an experience that I shall always remember, in large part because of the kind help that I have had from all sides of the House. I believe that we have delivered a Bill that the Armed Forces will be pleased with.

Moved, That the Bill do now pass.—(Lord Drayson.)

Photo of Lord Boyce Lord Boyce Crossbench

My Lords, at the outset of the Bill, my head told me that it was the right thing for us to be doing, but my heart was not too sure. Over the process, however, I have been convinced that we have a good Bill. I am grateful to the noble Lord, Lord Drayson, and his team, who have guided and helped us and been so accommodating with various ideas. The nature of the debate that we have had, off-site if you like, has helped us to get a Bill that I believe the Armed Forces will welcome.

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 thank the Minister very much for the positive and helpful way in which he has approached the Bill. The Armed Forces Bill is an example of the excellent work that this House performs. Noble Lords from all Benches have scrutinised and improved the Bill for the good of the Armed Forces.

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

My Lords, I join in complimenting the Minister on the efforts that he has put in to make sure that we have all been involved at every stage. I, too, thank the Bill team—some of the faces are even familiar from my past—who have done so much to keep us informed and briefed and who have handled the issues so carefully. The MoD does not do a lot of legislation, and I think that it shows in the sense that it follows all the rules, so we get wonderful colourful Keeling schedules that other Bill teams do not provide. I am most grateful.

Photo of Lord Lyell Lord Lyell Conservative

My Lords, I hope that I am still in order if I thank the Minister deeply for all the help that he has given me. I had intended to play a fuller part in the Bill—perhaps your Lordships will get a bit worried—but I was struck down by illness. Nevertheless, I received enormous briefing of all sorts from the Minister and his team, for which I am deeply grateful. You are never away from your Lordships. As I lay in hospital, I received a terrifying 25-minute brief from the noble and gallant Lord, Lord Inge, for which I was extremely grateful. I put on record my thanks as a humble Back-Bencher for the enormous help that the Minster and his team have given to us all. I hope that we have done something to make this a successful Bill.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

My Lords, I have already said very briefly to the Minister how much I appreciate the way in which he responded to my particular concerns. More generally, the Minister and his bill team have served this House and Members of this House extraordinarily well over this very important legislation. The co-operation, the extensive briefings and the earlier preparations—effectively almost a pre-legislative scrutiny—in which many of us have been involved have made it very much easier to end up eventually with a very worthwhile Bill. The Minister has devoted an enormous amount of time to this, inevitably, and I hope that he will be able to get back to his day job as Minister for DP very soon.

On Question, Bill passed, and returned to the Commons with amendments.

Photo of Baroness Crawley Baroness Crawley Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I beg to move that the House do adjourn during pleasure, and in so moving I suggest that business does not begin again before 6.15 pm. In the mean time, I suggest that noble Lords keep an eye on the Annunciator.

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

[The Sitting was suspended from 5.44 to 6.15 pm.]