Armed Forces Bill – in a Public Bill Committee at 2:00 pm on 25th March 2021.
With this it will be convenient to consider the following:
That schedule 1 be the First schedule to the Bill.
Amendment 1, in schedule 1, page 38, line 11, at end insert
“or lower ranks after a minimum service of 3 years”.
This amendment would extend Common Law rights for people to be tried by a jury of their peers to be extended to those in the Armed Forces.
Clause stand part.
Clauses 3 to 6 stand part.
Following the recommendations of the Service Justice System review, changes are being introduced in the Bill to allow more senior non-commissioned officers to sit as lay members, to change the number of lay members to six or three, and to introduce qualified majority voting. Those changes will have the effect of aligning the court martial system more closely with a civilian jury.
Currently, only officers and warrant officers can be lay members of a court martial. The clause will allow OR-7 ranks to be lay members—that is, chief petty officers, colour sergeants, staff sergeants and flight sergeants. That broadens the pool from which court martial lay members can be drawn, while preserving the seniority of lay members to fulfil the disciplinary role needed by the court martial.
Currently, there can be anywhere between three and seven lay members sitting on a court martial to decide on the verdict and then, if appropriate, on sentencing with the judge advocate. The clause will fix the numbers to either six or three lay members sitting on a court martial board. The intention is that serious cases will be dealt with by boards of six lay members, which is half the usual number on a civilian jury. The intention is that court martial rules will provide that six-member boards are needed where the defendant could be sentenced to more than two years’ imprisonment.
The clause would also introduce qualified majority voting on verdicts where there is a board of six lay members. At least five lay members must agree if there are six lay members, or four if the board reduces to five due to illness or another reason. Those numbers are roughly in proportion to the way in which qualified majority verdicts work in the civilian jury system.
I am aware that Martin Docherty-Hughes wishes to speak to amendment 1, but I ask first whether the Labour spokesperson wishes to comment.
I thank the Minister for moving the clause. I note the Government’s willingness to align the military judicial process so that it is more akin to a civil jury. The concern of my colleagues on the Opposition Benches is that, in the evidence recently given by Judge Lyons to the Committee, he stipulated:
“I believe, in the modern world, that the maintenance of discipline is in everyone’s interests, and as a first step I would wish to see it opened to OR-7. I think opening it further is a step too far at this stage.”
What concerns me and my SNP colleagues is that when pushed on the rationale for such an opinion, Judge Lyons was unable to substantiate why someone with substantial service under OR-7 should be excluded. Therefore, the judicial process, in terms of peer judicial decision, does not reflect the reality of military life.
I hope that the Government will consider accepting the amendment. There are those who have substantial service in the armed forces, not just in the sense of command but in lived experience of being in the Army. Some of the evidence given to the Defence Committee’s Sub-Committee on Women in the Armed Forces, and the armed forces ombudsman’s evidence in recent Defence Committee meetings, reflected that the judicial processes of the armed forces are not held in high regard by many serving and former service personnel. The amendment would—at least in some sense—go some way to rectifying that, ensuring that the military process is reflective of the reality of military life. At this point, if the Government are unwilling to accept the amendment, I will press it to a vote.
I wish to speak in support of the amendment. The issue was quite clearly looked at by Judge Lyons in his report. As has just been said, there is no rationale for why other rank 7 was seen as a particularly relevant cut-off point. The important thing is that we make the move to mirror the civilian justice system, although I certainly accept that there are differences between the two because of operational issues.
To be judged by one’s peers is a fundamental right. The provision would exclude large numbers of individuals, including some who may have many years of experience in the armed forces and of sitting on courts martial. I do not think that a good enough reason for excluding those individuals has been put forward in evidence. One possible justification was that people would not understand the procedures. Well, I find that rather patronising for non-commissioned officers, some of whom have been in the armed forces for many years. I would draw a parallel with civilian courts, where there is no qualification process or aptitude test for sitting on a civilian jury. It is for them to weigh up the evidence.
I think that Judge Lyons was basically saying in his report that the movement he outlined was all that he could get away with in the military legal system. I think that he was pushing for further change, but quite clearly did not want to offend or cause things not to go further. I think that he certainly saw this as a step towards, possibly, allowing other ranks to sit on courts martial.
The important point is to ensure that the individuals being tried feel that they get a fair hearing. In the hierarchical way that courts martial are judged at the moment, individuals might not perceive the process as fair because they are judged by more senior officers who determine promotion and other prospects for lower ranks, and might not only have limited understanding of the individual’s life experience, but could ultimately influence the outcome of the individual’s career, for example. I do not think a good enough reason has been put forward for why this cannot be extended, and I therefore support the amendment.
I will say just a couple of words in support of my colleague’s amendment. The Bill should be seen as an opportunity to modernise and to introduce some fairness—or perceived fairness—into service justice.
To include the NCOs and lower ranks is a step towards a more equitable method of delivering service justice, and how that is viewed by personnel is important. It is important that those sitting on a court martial board understand the experience of the people before them. Unfortunately, the experiences of commissioned and non-commissioned personnel can often be quite different. This is a real chance to build greater fairness, and perceived fairness, into the system. I urge the Government to consider the amendment carefully.
The evidence on this point was interesting. It was clear from the judge’s comments that we are moving a step in the right direction. However, it is only just a step. A review of this measure in five years’ time, at the next opportunity, is the right thing to do. The Committee heard evidence, and I questioned the judge, on the essential nature of this being different to a civilian court and the idea of discipline in the forces. The judge’s recommendations and the expansion, but not total movement, on this point, provide a sensible level. I urge Committee Members to oppose the amendment.
I have read the amendment. It seeks to increase lay membership of court martial boards beyond the rank of OR-7 and the changes we are making, as set out in the clause, apply to all service personnel, irrespective of rank, after serving for a period of three years.
The amendment seeks to bring the court martial board closer to the membership of a jury of a civilian Crown court in England and Wales, entitling all ranks to be tried by their peers. The amendment does not, however, take account of the key difference between the civilian courts and the court martial board. It is only the latter that has a part to play in determining the sentence with the judge.
I should first make it clear that we very much welcome the recommendation on this matter in the service justice review. Increasing the range of ranks from warrant officer to chief petty officer staff sergeant who can sit on a board as recommended is the right thing to do. It increases diversity of experience and also increases the pool of personnel eligible to sit on a board. Very careful consideration was given as to where we should draw the line on eligibility. A key factor in that was the role that the board has in determining the appropriate sentence to be awarded.
As I have already explained, the court martial board deliberates with the judge on the sentence to be awarded and the judge is relying on the collective service experience of those board members to assist in deciding the appropriate sentence. The sentence in the court martial fulfils a number of purposes, including punishment, the maintenance of discipline and deterrence. It must also take into account what is in the best interests of the service and the maintenance of operational effectiveness.
I recognise the move to include at least OR-7, but for the benefit of those watching our proceedings today, by going no further than OR-7, we are not just excluding privates, we are excluding lance corporals, corporals and sergeants, who probably have substantial life experience and military experience. While we are taking a step forward, there is substantial evidence from the ombudsman and the Defence Committee over the last 10 years that we are not going forward fast enough. Does the Minister not recognise that some of the profound issues the military justice system faces would be assisted by the amendment?
I am afraid I do not agree. We need to take this sequentially. It is an important move down to OR-7, and it will be reviewed again in due course. We want to make this the fairest justice system available, and if that includes moving beyond OR-7, we will do so in future, but at this time I do not agree with the hon. Gentleman. An appreciation of these factors comes with experience and, to a certain extent, with rank and the exercise of leadership and command over others. That is not the same as having served a specific period of time in the armed forces, as proposed in the amendment. In the light of that, we concluded that those at the rank of OR-7 and above are most likely to have the breadth of experience necessary to undertake the required role in sentencing. I have considered and answered the hon. Gentleman’s points. I hope, following these assurances, he will agree to withdraw the amendment.