HANSARD, Armed Forces Bill, House of Lords, 14 Jun 2006

4.15 pm

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Drayson): My Lords, I beg to move that this Bill be now read a second time. We ask much of our Armed Forces. They will often be in physical danger. They are given the right to use violent force on a scale not available to others, but we demand that as highly professional Armed Forces they act in a controlled and measured way within the law. Their ability to operate in that way obviously depends on demanding training, but also complete clarity on how they are to act and on whose authority. The chain of command does that in peace and on operations, at home or overseas.

The authority of the chain of command must be credible to those subject to it. It is critical to the delivery of unit cohesion and to operational
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effectiveness. Commanding officers are responsible for the discipline of those under their command. They exercise their authority primarily through their qualities of leadership and by inspiring the confidence, loyalty and trust of those who serve under them. However, ultimately, the Armed Forces must have the power to enforce discipline through a service criminal justice system. The integrity of the system is essential if we are to retain the confidence of those who are subject to it. It must support operational effectiveness and meet the expectations of members of today's Armed Forces. Above all, it must be fair. The Government are committed to retaining a separate system of service law. The primary purpose of this Bill is to provide the Armed Forces with a criminal justice system which meets these needs. It is not something that we have produced in a vacuum: all three services have been involved from the outset in developing the proposals and we have learnt from recent experience.

I recognise that the present military criminal justice system has rarely been subject to so much scrutiny as in the past two or three years. I will not discuss specific cases today. No one thinks that the Armed Forces should be above the law. Investigations into alleged serious offences on operations will always be difficult for those involved. Those investigations must be professional and independent. Any decision to prosecute for a serious offence should be taken by an independent prosecutor with an understanding of the service context. Any trial of such an offence should be before an impartial tribunal comprising serving members of the Armed Forces, with an independent judge. Of course, there must be proper safeguards and support for those who face investigation and prosecution in the service system.

Before I turn to some of the key provisions in the Bill I should like to say a few words about one matter which has been at the forefront of our minds as we have developed proposals in the Bill: the problem of undue delay. At worst, delay undermines operational effectiveness by damaging morale and unit cohesion. We must be rigorous in addressing it. I commend the efforts that the services and the Judge Advocate General are making to tackle delay in the current court martial system. The Bill will allow us to make further improvements, some of which I shall touch on.

The Bill defines offences, provides for the investigation of alleged offences and the arrest, holding in custody and charging of individuals accused of committing an offence. It provides for service personnel to be dealt with summarily by their commanding officer or tried by court martial. It retains the right of service personnel to elect trial by court martial and to appeal to the summary appeal court or the court martial appeal court as appropriate.

Much in the Bill is familiar. As my right honourable friend the then Secretary of State said in another place, it is evolution not revolution. But the key change is moving from three systems to a single system of service law. Having a single system enables the proper alignment of discipline and command instead of relying on ad hoc arrangements for joint operations as at present. It will mean that all service personnel will
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have the same powers, duties and rights when they are exercising their disciplinary functions or are being investigated for or charged with an offence. This is not only clearer, it is also fairer.

Part 1 deals with offences. All offences under the Bill are service offences. They are divided into two types. First are those disciplinary offences that are unique to service law—many will be familiar—such as looting or absence without leave. Secondly, as now, service personnel will remain subject to the ordinary criminal law of England and Wales wherever they are serving. Clause 42 provides for these criminal conduct offences.

The disciplinary offences have been reviewed and brought up to date. We have removed certain offences because they are no longer appropriate or are never charged, and are more properly charged under other provisions or dealt with administratively. It is not only the offence of scandalous conduct of officers that has gone. Other examples include allowing sequestration of aircraft or ship by a neutral state in time of war and billeting and requisitioning offences.

I turn now to the powers of commanding officers. The Bill provides commanding officers, for the first time, with harmonised powers to deal with all those under command of whatever service. We are reducing the theoretical extensive summary jurisdiction of commanding officers in the Royal Navy. I say "theoretical" because, in reality, they do not exercise them over very serious matters, not least because their powers of punishment are far too limited. But we are increasing the powers of Army and Air Force commanding officers to deal with a small number of additional criminal offences set out in Part 2 of Schedule 1—in straightforward cases, Royal Navy commanding officers already deal with these summarily—and their powers of punishment are increased from 60 to 90 days' detention, in line with those of naval commanding officers now. The exercise of both these additional powers will be subject to the approval of a higher authority.

The summary powers of commanding officers recognise the importance of being able to deal with such matters expeditiously, and we are also harmonising the powers of commanding officers to deal summarily with officers up to the rank of lieutenant colonel and equivalent, subject to certain conditions.

Part 5 of the Bill sets out the duties of commanding officers in respect of allegations that serious offences have been committed. It provides in Clauses 113 and 114 that for specified, inherently serious offences and those committed where certain prescribed circumstances apply, the commanding officer will be required to inform the service police as soon as practicable. The service police, who may already be investigating the matter, are in turn required to refer the case to the independent Director of Service Prosecutions if they think that there is sufficient evidence to charge one of these offences. The Director of Service Prosecutions will decide whether to bring charges, on the basis of the proper tests and a real understanding of the military context.
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However, we have taken specific powers to ensure that the decision whether to charge and what charge should be brought is not made without the commanding officer knowing what is going on and having the responsibility of ensuring that the director is aware of any facts which the CO thinks may be relevant to the decisions which the director will be taking.

It is worth giving a categorical assurance on that point. The power for the commanding officer to be kept informed and to provide to the prosecuting authority any information that he thinks is relevant will be set out in regulations under Clause 127. In particular, I draw noble Lords' attention to Clause 127(2)(e), which contains a power to require,

"prescribed persons to be notified of prescribed matters".

It is sensible to do that because commanding officers might have valuable information that could assist the prosecuting authority in the tests that must be applied before proceeding to charge individuals. We expect that COs will do this. They will see it as part of their duty to the individual and to the interests of justice to do so. Their training will reinforce that.

Under the existing legislation, there is provision in regulations for the commanding officer to submit to higher authority any information that he has which, in his opinion, may be material to the institution of court martial or other proceedings. That applies after the charge has been brought. The Bill gives us, for the first time, the opportunity for the prosecuting authority to have information on the service context before a charge is brought.

At present, the commanding officer also has a power to dismiss a charge—whether for a serious offence or not—without any form of hearing of the evidence. Under the existing law, the result of such action is that, even in very serious matters, no further proceedings may take place in the military system. No decision on the case can be taken by the independent service prosecuting authority, and the evidence is never tested.

That is not necessarily the end of the matter because, at present, where our civilian courts also have jurisdiction, the civilian authorities may then take action. The jurisdiction of the civilian courts may come into play as a result of the services themselves being prevented from taking any further action on the matter through just such a technicality. We want to address that.

The Bill will therefore ensure that the Director of Service Prosecutions will decide on serious cases, and that on serious cases a commanding officer cannot prevent further action by the services themselves, so we are removing the CO's power to dismiss charges without any form of hearing. I know that some see this as undermining the chain of command. I do not agree. It is simply wrong that, where there has been sufficient evidence to charge a soldier with a serious offence, the commanding officer can simply decide, without any hearing, that the soldier will not be tried for that offence, and that his decision then prevents any further
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proceedings in the military system. I do not think that commanding officers should have this responsibility, and nor do they.

As General Sir Mike Jackson said in giving evidence to the Select Committee on the Bill in another place:

"I would find it very hard logically to argue why a Commanding Officer should retain, or even have in the first instance, the power to dismiss a charge with which he cannot himself deal; that seems to me to be a matter that should properly go to court martial, for the evidence to be tested there".

If we believe that service personnel are not above the law, as long as commanding officers have these powers the services will be open to the recourse to civilian law as in the Trooper Williams case.

All offences can properly be dealt with under service law. The court martial is, and will remain, an ECHR-compliant court. We think it right that even the most serious cases should be resolved within the service system once proceedings have begun.

Clause 115 puts a clear duty on commanding officers to ensure that allegations of other, less serious offences are appropriately investigated. That is an objective test. These offences make up by far the majority of those committed by service personnel. It does not necessarily mean that the investigation has to be carried out by the service police. It is for the commanding officer to call them in if it is appropriate. Some 95 per cent of matters are dealt with summarily now and we expect that to be the same under the Bill.

I want to make it clear that, in the conduct of investigations, the service police work independently of the chain of command and of Ministers. They do a professional job, sometimes in the most demanding, difficult and dangerous circumstances. The Bill reinforces their relationship with the Director of Service Prosecutions in a similar way to their civilian counterparts. This should help to improve the quality and timeliness of investigations and reduce delay.

Where the commanding officer is considering what action to take in respect of the offences over which he has powers, he will of course, as now, have legal advice available. Under the Bill, as now, he may choose to deal with the offence summarily, or he may decide to refer the matter to the prosecuting authority because he does not wish to exercise his summary powers and believes a court martial would be more appropriate, or he may discontinue proceedings. But that would not prevent further action by the services at a later stage, if it were justified.

If the commanding officer deals with the matter summarily and finds the matter proved, he will go on to award a punishment. Again, this is familiar. Where he refers the matter to the Director of Service Prosecutions, it is the director who will decide whether to bring a prosecution and what the charge shall be. In all cases tried by the court martial, the Director of Service Prosecutions will determine the charge but it will be the commanding officer who formally brings it by notifying the individual concerned. This is important. It keeps the commanding officer directly involved. It reinforces his role by implementing his
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duty of care towards someone under his command who is subject to proceedings under service law. They must be properly supported and advised.

The changes I have already described will bring improvements in speed and efficiency. At the moment, every case must first go to the commanding officer. He looks into the matter. In many cases he will ask the service police to investigate. If he thinks it should go to court martial, he refers it to higher authority in the chain of command. In turn, higher authority refers the case to the prosecuting authority.

In another place some concern was expressed about the removal of the power for the Defence Council to review the findings and sentences of the court martial. This is the power for the chain of command to quash the court's finding or substitute another sentence which in their opinion is no more severe than the one awarded by the court. It is non-judicial interference in the decisions of a court martial, which is a compliant court, and it can no longer be justified, especially as there are now full appeal rights to the courts martial appeal court. The Government recognise that removing this power without providing for a "slip rule" to respond to technical errors in sentencing was a lacuna in the Bill. We have looked carefully at how we can rectify this while retaining service input to sentencing. But we wanted to ensure that the military input into sentencing was retained. The Government will table an amendment to achieve this in Committee. It is very closely based on the power of civilian courts under the Powers of Criminal Courts (Sentencing) Act 2000.

The Bill creates two military courts—the court martial, under Clause 153, and the summary appeal court, under Clause 139—to replace existing courts provided for under the separate discipline Acts. The court martial will be a standing court and will replace courts martial convened on an ad hoc basis to deal with individual trials. Like the Crown Court, it will be able to sit in more than one place at a time and deal with different cases. It is not a single court in permanent session. The main advantages of a standing court are that it will be more efficient by reducing some administrative arrangements and making it easier to arrange for preliminary matters to be dealt with.

We expect that in the main, service personnel will be tried by courts comprising members of their own service and that, as now, most matters will be dealt with by courts comprising three service members and a judge advocate, but five members or more for more serious offences. In addition, the Bill creates a service civilian court under Clause 276 to replace the standing civilian court that was established in 1976. Like its predecessor, this court may only sit overseas. It has powers equivalent to those of a magistrates' court when dealing with offences committed by those civilians who are described in the Bill as subject to service discipline. For the court martial and the service civilian court, the Bill creates a more modern and appropriate sentencing regime which primarily reflects changes introduced by the Criminal Justice Act 2003.
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I would like to turn to the provisions for dealing with the redress of complaints in Clauses 332 to 335. The rights and freedoms the rest of us enjoy are necessarily restricted in the case of service personnel. I think there can be no argument that, given these special circumstances, they should have a statutory right to make a complaint about any matter that affects them personally. Equally, we are committed to retaining the role of the chain of command in investigating and resolving complaints.

We have known for some time that the current provisions for dealing with complaints of individual members of the Armed Forces are not working as well as they should. The chief complaint about the complaint system was the time taken to resolve complaints. But we have to acknowledge other problems with the current system. It is clear that individual servicemen and women have not had sufficient information or awareness about their right to make a complaint and how to go about it. There is too much evidence that individuals have been positively discouraged from making a complaint, or have no confidence that their complaint will be taken seriously, or think that making a complaint will have a detrimental effect on them.

These issues were brought into sharp and difficult focus by Nicholas Blake's report. We want to address all these issues in the Bill. We think that the provisions, as they stand, together with a related proposal for a non-statutory but independent review of the redress system, go a long way towards doing this. So what are they?

First, the Bill introduces a more streamlined system which will reduce bureaucracy and provide for the majority of matters that cannot be resolved by the commanding officer to pass quickly to a panel outside the chain of command with powers delegated to it by the Defence Council. We have provided in certain cases for a person who is independent of the chain of command, and not a civil servant, to sit on the panel. Whether an independent person sits on the panel will depend on the nature of the complaint; for example, it is unlikely that an independent person will add value if the complaint is about the quality of the food in a mess. But an independent could add value where the complaint is about a course of conduct or type of behaviour that amounts to bullying.

A different panel will be convened for each complaint. The senior membership will never be below one star. The panel will have the full powers of the Defence Council for dealing with redress delegated to it, including financial powers. But the Defence Council will almost certainly reserve some matters for decision by the council or the relevant service board, for example, complaints against decisions by a service board or by a very senior officer, of three-star rank or above.

These complaints may include cases where it had been decided that an officer's service was to be terminated as a result of administrative action, for example following a civil court conviction, or where a person had disputed an appraisal report completed by
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a three-star officer. In parallel, but on a non-statutory basis, we had initially proposed that the complaints process would be reviewed annually and publicly by an independent external reviewer. In response to Nicholas Blake's recommendation, and to representations made by Members during the consideration of this Bill in another place, we propose to go further.

We will extend the role of the external reviewer to enable him to receive complaints directly from a service person or allegations from a family member or other third party. Where that happens, the commissioner will be able to refer the complaint or allegation directly to the right level of the chain of command, usually the commanding officer. That will trigger machinery so that if there is a complaint it will be investigated. Whatever happens, the commissioner will be informed of the outcome of that complaint.

We shall table amendments to the Bill to make this appointment of a service complaints commissioner statutory. The commissioner would have direct access to Ministers. He would report annually and the report would be published. We believe that this system preserves the responsibility of the chain of command for investigating and dealing with complaints and allegations while offering a complementary route for complaints to be placed in the hands of the commanding officer. This may be of particular value to those who might feel inhibited from going directly to the commanding officer.

A further area where we are harmonising and modernising provisions is in relation to boards of inquiry, or service inquiries as they will be known under the Bill. We think it is essential that the services keep the ability to hold internal investigations with the purpose of establishing the facts about an incident and making recommendations to prevent it happening again. It does not replace a coroner's inquest and is not, and does not purport to be, a tribunal that is compliant with Article 2 of the European Convention on Human Rights.

As now, Clause 339 provides for much of the detail to be made in subordinate legislation. Again, this is an area on which Nicholas Blake made recommendations in his report. We agree with Mr Blake that families should be given as much information as possible about the proceedings and the findings. Family members may also attend to give evidence. But we would not wish to extend to next of kin or their representatives a statutory right to attend such inquiries, or to hold such inquiries in public. This would change the character of the inquiry, which is internal and focused on preventing a recurrence of the incident or accident, and would confuse the purpose of an inquiry with that of an inquest or court of law. As a result, a right of attendance would give rise to expectations which the inquiry would not always meet. We also have a concern to ensure that there are no inhibitions on witnesses that might affect the frankness of evidence. There are practical concerns, too, given how inquiries are conducted often very quickly and overseas. We also accept that there may be circumstances in which
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a family's attendance at a particular inquiry would be acceptable, when it would not impede its effectiveness. In these circumstances, we are content that some discretion about attendance may be exercised.

We ask an enormous amount of the men and women of our Armed Forces, regular and reserves, and their families who support them. We place particular trust in commanding officers and the chain of command, as do those under command, and we take pride in the exemplary way in which they conduct themselves, sometimes in very difficult and dangerous circumstances. I think that we all share a common purpose. We want to provide the Armed Forces with a fair and modern service criminal justice system that will better support the way in which they train and operate today.

I have mentioned two areas where the Government intend to bring forward amendments. We expect to table a small number of other amendments to clarify or improve existing provisions. I shall ensure that noble Lords are given these in good time. I look forward to the detailed scrutiny that we shall give the Bill in Committee and I commend it to the House.

Moved, That the Bill be now read a second time.—(Lord Drayson.)

4.46 pm

Lord Astor of Hever: My Lords, I thank the Minister for explaining what the Government seek to achieve by bringing forward this Bill. With a few important exceptions, we welcome the Bill. It has been very helpful to us during our consideration of the Bill to have had such clear Explanatory Notes, and the Minister and his colleagues are fortunate to have been so well supported by an excellent Bill team.

The Bill has been changed and improved since its original introduction in the other place, and a number of sensible amendments proposed by my honourable friend the Member for Aldershot, as well as some unhelpful ones proposed by others, were resisted. We look to persuade the Government to change their mind here on some at least of the former and congratulate them on their resistance to the latter.

As stated yesterday by the Minister for the Armed Forces, we in this House expect to be presented with further government amendments to provide for a services complaints commission; the Minister has just mentioned that. These amendments, when we have them, will be a qualified and partial step towards meeting the recommendations of Mr Nicholas Blake QC, arising from his carefully considered report on the distressing events that took place at Deepcut barracks. The assessment by Mr Blake and others of the important and difficult issue of harassment was accepted by the Government, but they have none the less avoided proposing legislation that might help. We have therefore prepared further amendments addressing that important issue.

Similarly, the Government claim to have accepted Mr Blake's recommendations in relation to the "independent assurance" of,

"the military justice system and the military complaints system".

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However, we want to know why the commissioner will not be embodied in the military system. We believe that it is essential that his appointment does not undermine the chain of command. Instead, the Government have expressed their intention to establish these military assurance and inspection systems under the civil Police and Justice Bill. Can the Minister clarify the Government's thinking on this point? In our view, military justice must be a wholly distinct and different process of its own. Thus the procedures for the assurance and inspection of the system must be properly and distinctively entrenched in military law—that is to say, in the Bill before us.

At this stage, I shall make two points arising from Deepcut. First, both the government amendments and our intended amendments are a new area for consideration and scrutiny. Their terms have not been considered in the other place, so a particular duty falls on your Lordships' House to scrutinise them carefully.

The second is that, by definition, they set out to change the present law as it is and as it was understood to be. Fortunately, this last consideration does not apply to much of the substance of the Bill. Its general purpose and effect is to re-enact in a consolidated form the main provisions of the three single service discipline Acts. This is a necessary thing to do and one that is seriously overdue. The old Acts had been so frequently and extensively amended that they had become unworkable and indeed unacceptable as foundation documents.

That the special constraints and duties that apply to all members of the Armed Forces and to those civilians who live and work alongside them should be set out in a single coherent body of law is reasonable provided that the terms of such a body of law sensibly recognise that some circumstances alter cases. Nevertheless, there are fundamental differences between each of the services, and the Select Committee in the other place did recommend as a result of taking evidence that courts-martial panels ought to be composed of a majority of personnel of the service of the accused.

It is surely self-evident that those of our fellow citizens who serve as members of the Armed Forces are exactly that—members of a lawfully armed and disciplined force. They have in appropriate circumstances to use force, including as necessary lethal force—a lawful power and duty in fact to kill. It is precisely that body of law that so authorises them and disciplines them in that exceptional power and duty which we now have before us for our careful consideration and adjustment.

One thread in the debate cropping up at certain points in the Government's arguments, although heard more strongly from elsewhere, is that the process of military law should become as far as possible the same as the processes of civilian law—that an objective should be to assimilate. I have to say again that this logic—that one size should fit all circumstances—is not an objective that we share. Our objective is that the governing document of military law—this Bill when enacted—should properly recognise the unique features of military duty and should be drawn up and applied accordingly.
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Disciplined Armed Forces operate at all times within the law, but a law that clearly and properly recognises the exacting circumstances in which it has to apply. It is this rationale, the separateness of military justice, which will form a continuing theme in the amendments to the Bill that we will propose. We shall focus particularly on the need to protect the chain of command. That is, I believe, a common objective of all concerned with military justice and discipline. The Minister reiterated it in his Deepcut Statement in the other place yesterday. It is the feature of the Bill that has attracted the most attention among those serving today in the Armed Forces who have properly expressed their views to us and probably to many other noble Lords speaking this afternoon.

To achieve that objective—a continuing, positive and undiminished role for the chain of command—a number of adjustments will need to be made to the Bill as it has come to us. We are concerned that the Government are eroding the powers of commanding officers. COs have to act. If they do not, they put their entire ship, regiment or squadron at risk. They have to make hard decisions, frequently based on imperfect information. If they get it wrong, they have to suffer the consequences.

We cannot allow the creation of a culture in the Armed Forces, particularly the Army, where soldiers are too scared to open fire because they fear the threat of prosecution. British soldiers are trained to react instinctively to events. The Minister will be aware of the survey carried out at the end of last year by the Army within 7th Armoured Brigade in Iraq which found that there is a widespread fear of opening fire and of being investigated for opening fire.

Armed conflicts—wars, to use the simple term—are usually conducted against opponents who reject what we see as the rules of civil society. That does not mean that we ourselves should reject those rules, but it does mean that our Armed Forces must be prepared and authorised to operate under rules that recognise that this may be, and indeed is likely to be, the case with their opponents. The job of the Royal Military Police requires diligence and common sense. It is the latter that appears in some cases to have been lost. Every "incident" has to be investigated for the possibility of prosecution, very possibly on the claims of the enemy or of those seeking financial gain. This law must recognise that the incident will always seem clearer in the artificial arena of the court of law than in the split second of reality that it took at the time. That is why we shall seek to insist that the Director of Service Prosecutions should have recent and relevant military experience. I make no apology for expressing my feelings on that with some passion.

The Minister mentioned delays. Recent cases have shown that the existing system is disgracefully slow. I welcome the setting up of the Adjutant-General's delay action group, and I know that the Adjutant-General is working hard to cut down delays; yet very little in the Bill attempts to speed things up. We shall therefore table an amendment to chapter 2 of the Bill that sets time limits to proceedings to the effect that unless proceedings are brought from start of
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investigations to start of court proceedings within one year, the matter will be returned to the CO for summary judgment. We on these Benches intend to emphasise the importance that we attach to preventing the recurrence of such intolerable delays in justice by, if necessary, taking the opinion of the House.

The recent acquittal in the court martial of Sergeant Selman and the other soldiers on charges arising out of an event that occurred more than three years before the trial opened is a striking example of the human dimension of what may, and maybe should not, arise in our system of military justice. It also understandably gave rise to strongly phrased expressions of concern that the acquittals meant that the prosecutions were wrongly undertaken in the first place. The noble and learned Lord the Attorney-General, writing in the Daily Telegraph, has defended the process in equally strong phrases. But it is the duty of the Opposition when a succession of such high-profile cases fail to test rigorously whether, in reaching the decision to prosecute, correct procedures have been established and correctly followed and proper tests properly applied. The Prime Minister said last week that he hoped that lessons would be learnt by the prosecuting authorities. This is not the time or place to go into detail, but I draw the attention of the House to the set of 10 Questions for Written Answers that I have tabled. I hope that they will receive candid rather than shuffling or evasive answers. They go to the working heart of the system that this Bill creates.

Another widespread view that has been expressed to us is that the replacement of serving uniformed officers by civilian communication experts—or spin doctors by another name—as public spokesmen for the Armed Forces has led to damaging consequences. We believe that a return to the earlier practice would assist better and more direct understanding of the Armed Forces, and we shall support any suitable amendment in that sense. My noble friend Lord Kingsland will cover the supervisory role of the Attorney-General, and my noble friend Lord Campbell of Alloway has an amendment on that issue. I hope that the noble and learned Lord the Attorney-General will respond on this issue in Committee. He ducked out of our debate last July. Defending the Government's ban on hunting was placed higher on his list of priorities than were the interests of our Armed Forces.

Other amendments that we will bring forward include placing the rules of engagement on a statutory basis, which is not the case at present, and giving statutory basis also to the Manual of Military Law. We shall be looking, too, to see whether some of the procedures in military law and justice pioneered in Australia may be of value.

We have a wealth of experience in our speakers' list, from all sides of the House, and I shall listen carefully to all that is said. I hope that the Government will do the same—listen carefully, even when they are initially disposed to disagree, and that, out of our deliberations today and subsequently, a Bill will emerge that meets our limited, but specific, concerns, as well as serving the general purposes on which we are all agreed.
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5.01 pm

Lord Thomas of Gresford: My Lords, I declare an interest as having appeared in a number of courts martial, including some that have been referred to. That inhibits me from commenting on ongoing cases, but it allows me to speak with some practical knowledge of the way in which the current system works and with some ideas as to how the Bill could be improved.

We on these Benches welcome the bringing together of all three services in a common code and with common procedure. That should ensure consistency and fairness across the board. In considering consistency, we welcome the appointment of a Director of Service Prosecutions, who should be independent of the chain of command, but, we believe, must necessarily have military experience, so that he can take decisions within the military context.

We also welcome the creation of the court martial as an institution. Until now, courts martial have been ad hoc tribunals, set up for individual cases. Now, however, with the building of new court centres at Bulford, Catterick and Colchester, and with the professionalism that is involved in the courts administration officer who already exists and who, no doubt, will be appointed under this Bill, we hope that the terrible delays that have occurred will significantly be reduced.

Clauses 55 to 62 refer to time limits for charging within six months of a person leaving the services or ceasing to be subject to service law, but there is still no time limit for the commencement of trial. I was encouraged to hear the noble Lord, Lord Astor, say that his party intends to table an amendment that will set a limit within which proceedings should be brought and the trial commenced. Similarly, we welcome the Service Civilian Court, although I shall return to the matter of civilians who are subject to military law.

I pay tribute to the bravery and professionalism of our armed services in all fields of conflict. Carrying out the policies of the Government of the day is a dangerous occupation. It is not abstract or theoretical that the people who carry out those policies do so at the risk of their own lives and well-being. It is absolutely important that, when they do so, they can be confident that they will be treated fairly, both in matters of discipline and in the trial of any alleged criminal conduct. The first essential is that recruits are treated properly. There should be no ill-treatment, harassment, bullying or discrimination. Not only is that harmful to the soldiers themselves, but it inhibits proper recruitment to the armed services.

We welcome the proposals for the redress of individual grievances as far as they go. Initially, the Government intended that the service complaint panel should include an independent member and that the complaints process should be reviewed annually and publicly by the independent external reviewer. However, the Government have responded rather disappointingly to the Deepcut review and to representations made in another place by proposing not that there should be an ombudsman, as Nicholas
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Blake advised, but that the external reviewer's role should be extended in a limited way. That is nothing like the ombudsman role envisaged by Blake. The Deepcut review suggested that the powers of the ombudsman should include the ability to initiate prosecutorial proceedings, if the ombudsman felt that a complaint should be prosecuted. By contrast, the Government's proposals announced yesterday suggested that the powers of the ombudsman—or what they call a service complaints commissioner—should be restricted to receiving a complaint, referring that complaint to a higher authority and remaining informed of the outcome of the complaint. That is a power of recommendation, not a power of taking action. We think that this should be looked at when the Government bring forward their proposals in an amendment, which they are preparing.

I also follow the noble Lord, Lord Astor, in talking about the rules of engagement. The trained soldier needs to know the framework within which he operates. The rules of engagement for the invasion of Iraq were to seek and destroy the enemy either by killing or neutralising its forces. That is what the invading forces were trained to do; that is what they were up for. However, no fresh rules of engagement were issued for many months after the conflict was over. That matter emerged in the paratroopers' proceedings last September and October in Colchester. British forces were judged as though they were policemen, subject to all the restraints and training of peacekeepers that one might get in the domestic situation. It is vital that in whatever field our forces operate the rules of engagement are clear and precise and are conveyed to those obliged to perform their duties within those rules. That should be taken into account in decisions to investigate alleged criminal offences and in decisions to prosecute. For the purposes of investigation, let there be no more situations arising where our troops are subject to investigations but where the investigators do not have adequate resources—in money or manpower—to carry out the sort of thorough investigation that the seriousness of the allegations demands.

Turning to the Bill and the "First Group of Parts", no one could object to the discipline offences listed in Clauses 1 to 41 being tried by the court martial. These certainly envisage military matters which are undoubtedly within the experience of the members of the panel: assisting the enemy, mutiny, desertion, insubordination and so on. What is objectionable is the inclusion under the "Discipline" general heading of "Criminal conduct", under Clause 42, which gives jurisdiction to the court martial over any offence punishable under the law of England and Wales, including the infliction of punishment. Any offence in the criminal calendar can be brought as a disciplinary matter under Clause 42. This is not a matter of discipline. A person subject to military law ought not to be tried and punished for murder, for example, as a matter of forces discipline. This has practical implications.
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Clause 19, which concerns conduct prejudicial to good order and discipline and covers a wide range of behaviour, Clause 20 on misconduct through drink and drugs, Clause 21 on fighting or threatening behaviour and Clause 23 on disgraceful conduct of a cruel or indecent kind are all matters that a military court can properly deal with as disciplinary. So why is it necessary to include the entire corpus of the criminal law within the jurisdiction of the court martial?

Another matter that causes me concern, as it has for many years, is the way in which civilians who are subject to service discipline may be tried by court martial. For example, any person who is a member of the family of a serving soldier in a base overseas is subject to service discipline. I recall the case of Martin, which eventually ended up before the Appeal Committee of this House. It was a case in which a 17 year-old boy was charged with murder in Germany. Although he was incarcerated pending the trial in this country, and although his father had left the forces and he had absolutely no connection with the Army at the time, he was flown back to Germany to be tried, at the age of 19, by a court martial of officers with, I think, two civilians from the Civil Service also taking part in the hearing. In his judgment, the noble and learned Lord, Lord Slynn of Hadley, said:

"As a matter of first impression it seemed to me disturbing and indeed wrong in principle that a 19-year-old civilian, albeit the son of a serving soldier at the time of the murder he was alleged to have committed in Germany, who had with his father returned to England more than a year before trial, should be sent back to Germany for trial by court-martial and thereby be deprived of the right, or at the least of the opportunity, of trial by jury".

The Appellate Committee unanimously held that, if Parliament had said that a 17 year-old boy was subject to service discipline and could be tried for murder in Germany, it could not be described as an abuse of process. But the noble and learned Lord, Lord Slynn of Hadley, said that it was disturbing and wrong in principle, and the noble and learned Lord, Lord Hope, said that it was quite inappropriate. It is matters of that sort that I shall endeavour to discuss with your Lordships in Committee.

There are other matters of procedural drawbacks that I think we will also have to discuss. With regard to the composition of the court, I disagree with the suggestion that a soldier should be tried by Army officers and warrant officers and not by a mixed pool. It seems to me that if we are bringing the services together and creating one single body—the court martial—it is appropriate that the panel should come from all the services. That would help with consistency and perhaps it would help to break down the tensions between the various services if a person were tried in that way. I appreciate that there are differences between the services, but a panel of officers and warrant officers should be able to deal with the matter without prejudices of that sort.

Another matter that I think we must consider is the number of members of the tribunal—whether it should be three, five or, in serious cases, as now, seven. Again, one has to compare that with the jury in the Crown Court in this country, which has 12 members. If the
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provisions in military law were the same as those in civilian law, the majority verdicts would be declared, open and transparent. But, as most of your Lordships will know, the court martial can decide by a majority—which, with seven people, may be four to three, or, if there are five, three to two—without ever revealing that it is a majority decision. So, if a civilian charge as serious as murder should remain with the court martial, a person may be found guilty of that crime when the tribunal is split four to three and he will never know about it. As the Judge Advocate General suggested to the committee in another place, it is appropriate that we look again at majority verdicts; they should be declared and it should be possible to have only one or, at the very most, two dissentients before a verdict of guilty is brought in.

Another matter is sentencing. A jury does not sentence in the Crown Court; it plays no part in it. However, the responsibility for sentencing in a court martial rests not with a judge but with the tribunal. The judge plays a part; he has an equal vote with the members of the panel, and a casting vote if they are equally split. However, we are dealing with a new world. The Bill introduces community sentences. Unlike for magistrates, there is no training in sentencing matters for court martial panel members. I shall suggest to your Lordships that the Bill be amended so that sentencing should be by judge alone, or at least with an assessor. The service input into sentencing is fine when you are dealing with disciplinary matters but, if you are going to deal with serious criminal conduct through the court martial system, the judge should decide the appropriate sentence.

This is a large Bill and there is a long way to go. I hope that, at the end of it, we will produce for military people a system of justice that they deserve for the great service that they afford to us all.

5.16 pm

Lord Bramall: My Lords, it is already clear that there is a good deal to discuss in this comprehensive new Bill. I will concentrate on just one aspect: the responsibility of the commanding officer and the chain of command in the disciplinary system.

As many noble Lords will no doubt agree, the Government have shown quite a propensity for committing our Armed Forces to conflicts which, perhaps predictably and at an early stage, develop into a twilight zone of combat. Although it may not be consistent with all-out war, it can impose on our servicemen the same pressures and need to take instant life and death decisions because insurgency and terrorism flourish, making it difficult to differentiate between friend and foe.

At the same time, because of the full glare of media interest and scrutiny that this phase attracts, to say nothing of the disgraceful activities of ambulance-chasing lawyers, there is more pressure at home and abroad to initiate legal proceedings against our servicemen who may be thought to have exceeded the
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minimum force consistent with their military tasks. It is therefore important that this new Armed Forces Bill is able, in such circumstances of active service, to strike a just balance between ensuring that the Armed Forces operate within the rule of law and are properly and fairly disciplined if they do not, without at the same time hampering and compromising their effectiveness and the performance of their duty, or putting at risk their lives and those of their comrades. As anybody who has had experience of such situations knows, this is not always an easy balance to strike. Justice cannot be dispensed in a vacuum; it must depend on the circumstances prevailing at the time at the scene of operations and on the rules of engagement, if established. As we have heard, that is not always done.

The Bill must therefore be carefully scrutinised against this background. I believe, as do many of my noble and gallant friends, that the key to this lies as much with the responsibilities of the commanding officer and the chain of command as it does with the military prosecuting authority, often far removed from the scene of the action. Although the prosecuting authority—essentially a military stand-alone authority with a military director—must have the final say on whether charges for serious Schedule 2 offences should be heard at court martial on the basis of whether a conviction would be possible, the commanding officers and their immediate superiors are most likely to have the best knowledge of the actual circumstances at the time. Moreover, morale, commitment, steadiness under pressure and, indeed, inspiration and confidence to perform duty to the utmost, depend largely on the leadership and authority of the commanding officer in the various different environments. As the noble Lord, Lord Astor of Hever, said, the commanding officer must remain a key figure in the morale and discipline of our Armed Forces.

Although I would not accept that the Williams case was a good reason for limiting the commanding officer's present powers to dismiss any charge if he does not think there is a case to answer, in that case the commanding officer's decision, taken in good faith based on legal advice in the theatre, was subsequently shown to be not unreasonable, with the fault lying more in him not being fully supported in Whitehall, as he could have been, despite contradictory legal advice about whether a prima facie case existed.

I do not have too much difficulty in accepting that a commanding officer should no longer retain the powers to dismiss serious charges with which he does not have, or will no longer have, the power to deal summarily. But all of this makes it even more important that the commanding officer should not be removed completely from the dispensation of justice for his men, even in serious cases, and can return their trust in him by backing them if the circumstances make that appropriate or by supporting them being disciplined if that is necessary for the preservation of good order and the highest legal and ethical standards. At the moment, the Bill is not entirely satisfactory in that respect.
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There seem to be three ways of keeping commanding officers properly in what one might describe as the "disciplinary loop" without slowing up the process of administering justice, which must be quick and which has certainly not been so in recent years. That point has already been highlighted in this debate.

The first of those—this is properly covered in the Bill—is that the commanding officer will continue to have the power to deal with all disciplinary offences, other than the most serious Schedule 2 cases, and that all charges should initially be brought before him, with the proviso that where necessary and appropriate charges would be referred for investigation by the service police. As the Minister has already pointed out, in the case of the Army, the commanding officer's powers have been strengthened in certain respects.

The second way is under Clause 113(2), which reflects "the shooting investigation policy". This is extremely vague and confusing, as indeed is the whole Bill, with its convoluted drafting. It must be something of a nightmare to any adjutant or regimental sergeant major trying to master it, but I suppose they will be eased through it in some way.

Clause 113(2) gives the commanding officer some jurisdiction about whether he refers a matter to the service police, as the Minister at the Select Committee hearing in another place confirmed. Would, for instance, that jurisdiction cover a killing which was seen by eye witnesses, perhaps at command level, to be clearly within the rules of engagement? What about accidental discharges, which are very prevalent on active service, perhaps bringing injury to a comrade? The question of referral to the police needs to be cleared up with further guidance about what constitutes criminality in cases of that sort.

Finally, there would be the procedure not yet included in the Bill—although the Minister covered it in respect of supplementary regulations—which I hope will be contained in an amendment to be tabled in due course and which to my mind is essential. That is for the commanding officer to be informed of all submissions put forward by the service police to the director of the military prosecuting authority setting out the basis for that submission, not just those referring to less serious offences for action by the commanding officer as written into the Bill. The commanding officer should then have the opportunity to make a report to the director through, I suggest, his superior headquarters. This is important in cases where the commanding officer might be unduly protective. Superior headquarters could provide a broader perspective which would keep the military director of prosecutions fully in touch with what was going on on the ground. As the director would consider any report from the commanding officer at the same time as he considered the service police report, there should be no undue delay.

The involvement in some form of the chain of command is important. It should be written into the Bill and not be left to supplementary regulations as suggested by the Minister. This is important because
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the Bill combines the three service discipline Acts into one single Act and, as it admits, reduces the differences between the systems to a minimum.

Whatever the Strategic Defence Review may have claimed, joint arrangements are hardly new. Having taken part more than 60 years ago in the largest combined operation that the world has ever seen or, thankfully, is ever likely to see, I can say this with some feeling. The services remain very different animals—if they do no object to that description—with different pressures on them in combat and often with different disciplinary imperatives and requirements. Many operations are, rightly, jointly conducted and, one would hope, better co-ordinated, but some remain largely single service. When you treat all service personnel alike as regards, for instance, a single prosecuting authority under one director who may be from any service—if he is not a civilian—and a standing court martial, there may, and probably would, be advantages from a legal point of view but, inevitably, you will lose some awareness of the special circumstances and pressures pertaining to personnel in that particular service at that particular time.

Although I can see the advantages of being able to deal from a disciplinary point of view with, for example, men and women of a different service who happen on operation to come under a single service command, much of the Bill has elements of bureaucratic tidiness about it, which makes it—I stress it again—even more important that the chain of command remains in the loop. I hope, therefore, that noble Lords will look with favour on the simple and constructive amendments which would achieve this when they are brought forward at the proper time.

5.28 pm

Lord Judd: My Lords, it is always a challenge and a privilege to follow the noble and gallant Lord, Lord Bramall. There can be few debates in this House which enjoy such a formidable body of distinguished, direct and relevant experience as we have with us today. It is good to be able to hear at first hand so much insight, experience and honest advice.

As a layman, albeit a former junior officer in the Royal Air Force and a former defence Minister, I am glad to be able to take the opportunity presented by this debate to pay unqualified tribute to our servicemen and women, to the civilians who work so closely with them, to our service families—especially the bereaved—and to Ministers who carry so much responsibility on our behalf. The courage and sacrifice speak for themselves. We must never take them for granted. They bring home to us every day our own heavy responsibilities.

It seems to me therefore essential to put the issues raised by this Bill in a wider context. The starting point in any objective consideration of defence issues is surely the nature of the threat. We then have to examine honestly the nature of the resources—personnel, equipment and organisational structure—that we have at our disposal and assess how far they meet the challenge.
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If the nature of the threat changes, radical responses may be necessary. Long established traditions and patterns of expenditure may prove inappropriate. Not to be honest about that—it can be very difficult—is to fail the country, to betray our servicemen and women and to waste public funds which could be put to better use. The unforgivable political crime is to initiate military action for which adequate and appropriate resources are not available. That can aggravate pressures and tensions which become acute with direct implications for discipline and justice.

The world which confronts us in 2006 is highly complex. It is not, I would argue, more complex or dangerous than in the earlier years of many of us in this House, but with the end of the stark and clear confrontations of the overarching Cold War, the complexities have become more obvious. One of my uncles, a captain in the Indian Army, was killed in an uprising on the North-West Frontier in the early 1930s, having previously served in Baghdad. The present complexities have deep roots in history. These complexities were masked by the Cold War, but they remained as real as ever. The availability of highly lethal, flexible, orthodox and unorthodox weapons—whatever in reality can now be regarded as a valid distinction between the two—has added a sinister dimension to the dangers.

From the private to the general, from the sailor to the admiral, from the airman to the air marshal, in the face of the complexities that I have described the demands are immense. They are not likely to diminish. That is the context within which we must approach our deliberations on military discipline and justice. It is not simply a matter internal to the services. It has far-reaching consequences for the political reality within which we expect our services to operate and for the political solutions we seek to crises across the world.

A disciplined fighting force, such as we have seen in the past few days in Afghanistan, whatever the wider role—I trust that the planners have allowed for this—is as vital as ever. But other qualities are at least as vital at all levels of command. Diplomatic negotiating skills, humanitarian sensitivity and an instinctive commitment to human rights are essential weapons in the battle for hearts and minds. It must surely be clear to all of us that in the struggles with which we are confronted there is no escape from the reality that they are about a battle for hearts and minds. Peace has to be built: durable peace simply cannot be imposed. That is abundantly clear on every front.

When things go wrong, when there are abuses, it is not just that they contradict the values for which we so vehemently claim that we are standing—of course, that hugely matters; it is that they play straight into the hands of propagandists for the extremists. To call a spade is a spade, such lapses are treacherous. This is the hard-headed truth. The weak and dangerous argument is that which rationalises and endeavours to explain away. To do that is to remove the ground from under the feet of every serviceman and woman who
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understands the nature of the challenge and who is endeavouring—often in the face of acute and cruel provocation—to meet it.

It is argued that those we fight do not observe the same standards. That is abundantly and sickeningly obvious. But that is precisely why we have to be consistently, transparently and invariably about something different. To falter is to play for the other side.

The Bill is about discipline and the administration of justice. I welcome much of it, not least the bringing more closely together on an inter-service basis the systems we have in place. But as we consider it, we shall have to have in mind how far it meets the requirements of transparency, of justice being manifestly seen to be done. It is necessary to weigh all the time the underlying culture and the adequacy of resources both in the judicial arrangements and in the service police. The importance of demonstrable, tough-minded objectivity cannot be over-emphasised.

I enjoy the writing of Max Hastings. He is one of the more impressive journalists. Would that there were more of them. He makes me think. But I am not always completely convinced by his conclusions. The other day, he was arguing that it is not possible to expect young men and women, who are recruited to fight and to kill, to give priority to hearts and minds concerns. My contention is that if we fail in our recruitment, training and leadership at all levels to prepare our service personnel for the dual tasks—and they must be effective fighters; they cannot just become social workers in uniform—we are contributing to our own ultimate defeat. It is often what ordinary people encounter in the immediate incident which can have a seriously counter-productive—or, indeed, a significant and positive—consequence.

Leadership, training and ethos are crucial. Systems of judicial administration, however theoretically perfected, are fairly useless without that context. Indeed, they can engender cynicism. We have to be careful lest, in any imposed methodology for what might be called corporate military ethics, we do not inadvertently undermine the role of leadership. The commanding officer, the NCO who is a living example of the fight for values, is worth any number of lawyers and judges.

Before I conclude, I should like to refer specifically to Clause 8, which received a certain amount of necessary attention in the other place. I hope my noble friend will be able to convince us that this clause has been drafted with an objective long-term view and not because of the disturbing number of deserters and those going absent without leave in the context of the conflict in Iraq. The penalties are potentially draconian. Life imprisonment is a heavy sentence. Conscientious objection is a precious right which is central to the values we proclaim. We must never jeopardise it.

In volunteer services, however, people volunteer to serve the nation in whatever way the nation requires. A central question is whether conscientious objection can then apply to a particular situation in which a
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volunteer is expected to serve. Of course, the principles laid down by the British and Americans in the post-Second World War Nuremburg trials are relevant. A serviceman or woman should be expected to refuse to carry out an order which he or she knows to be illegal. Such refusal should have our complete and unqualified endorsement. When it comes to participating in the occupation of a foreign country or territory, this makes it imperative that such an occupation is authorised under international law.

The occupation of Iraq was, however reluctantly, post facto authorised by the UN Security Council. But to pretend that an argument does not still exist about the original action and occupation is perverse. I, for one, remain convinced that there should have been an ad hoc specific UN Security Council authorisation—not a subjectively interpreted authorisation cobbled together from past resolutions. This mattered in the cause of the international rule of law, but it also mattered in terms of global political credibility and the battle for hearts and minds. The collapse of the argument put forward in favour of the need for action—the absence of weapons of mass destruction—reinforces the issue. If Clause 8 is to apply, it would surely be appropriate to have explicitly on the face of the Bill a reference to an occupation authorised by the United Nations and under international law. What my noble friend has to say about this in his reply will be very significant.

I conclude as I started, by taking this opportunity to pay tribute to our services—the men and women and their courageous and anxious families who serve on our behalf.

5.42 pm

Lord Mayhew of Twysden: My Lords, of course I follow the noble Lord, Lord Judd, in his concluding words of tribute—and well deserved they are—to the qualities of our fighting services in whom we have such pride.

By my calculation, the seven gallant and other very senior officers who are due to speak in this debate muster between them some 34 stars. As a fairly humble national serviceman, I feel that the qualities of brevity and diffidence are both prudent and seemly. I shall try to achieve both.

Along with many others who are better qualified by experience than I am, I think that there is much to be welcomed in this Bill. Focusing as I tried to do on the Bill's legal aspects, I singled out in particular this consequence of integrating the service discipline Acts—namely, that where the three services are in future deployed in a joint operation, personnel serving on a fully joint basis in fully joint units will be subject to the same disciplinary system. That must surely be of immense importance to commanders and to efficiency generally. This merging of the individual service discipline Acts is therefore an extremely valuable reform.

But as has been pointed out a number of times today—first by the Minister—the Bill comes at a time when what one used to call the military justice system
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has been under a degree of scrutiny and has attracted a degree of anxiety for which it would be hard to find a precedent. There are a number of reasons for that. For example, there is uncertainty as to what substantive law applies to our soldiers if an operation—in Afghanistan or, indeed, Iraq—should develop from one phase into another phase. Can an international conflict situation develop out of an operation intended originally to assist reconstruction of the civilian population and the civilian arrangements? That can be said to happen if such an operation sustains serious armed opposition. It is important for those taking part to know whether that transition has occurred or not, because very different rules apply as to what soldiers may do.

Questions of this character can be expected to arise with increasing frequency with the new pattern of deployments that seems to be emerging and, indeed, has been emerging for some time. They add to the difficulties and dangers that our troops face, and they surely emphasise the critical importance to them of having confidence in the legality of what they are required to do and, further, in the fairness of the disciplinary processes and structures within which they work. I welcomed the Minister saying earlier this afternoon that fairness was the key consideration. He said that, above all, the military justice system must be fair. I believe that it is that concept of fairness that resounds most in the minds of our military in this context. People know that they have to work within the law; they ask only, as they are entitled to do, that the law be made reliably clear to them by those who deploy them and that its disciplinary enforcement take full and fair account of the stresses and dangers that they face.

I now turn to the Bill. It cannot of course be expected to deal with the substantive law applying to specific operations, but it does deal with the processes by which disciplinary justice is delivered. In the context of confidence in the fairness of prosecuting decisions, I found it curious, not to say dismaying, that the new Director of Service Prosecutions is not required by the Bill to be a serving officer. Clause 358 sets out the requirements for this particular office, which all relate to legal qualifications of one kind or another. Why has this departure from each of the individual service disciplinary Acts been made? The Minister may reassure us, or seek to do so, by saying that it is the intention of the Government that in practice the Director of Service Prosecutions will always be a serving officer. If that is the case, why can it not be specified as necessary in the Bill?

If that were indeed the intention of Ministers, we should welcome it. But it is worth exploring why it would be valuable. It would be valuable because it would be seen to be some safeguard against prosecuting decisions being taken in ignorance of the character and influence of the operational stress that the soldier cannot avoid. The noble and gallant Lord, Lord Bramall, has touched on this already, with a wealth of personal experience.
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It would be good for justice and for confidence in justice if the new director had to be a serving officer. That would at any rate give him access—although inevitably at second hand, one imagines—to information about and an understanding of operational stress. Of course it would be better if he had recently had personal operational experience, but I suspect that that is too difficult in modern conditions. It is reassuring to learn, as I did yesterday, that every young officer in the Army Legal Services typically serves a six-month secondment as a platoon commander or equivalent in an infantry battalion.

The failure to require the Director of Service Prosecutions to be a serving officer has not, I guess, passed unnoticed. I would be surprised if it were not seen as being of a piece with what is seen, for example, as the increasing practice of employing civilian counsel to prosecute in courts martial. They will only very rarely, and coincidentally, have any service experience these days. There is in some quarters perceived to be a civilianisation of the military justice system, which occasions well placed anxiety.

This departure from the pattern of the individual service discipline Acts in not requiring the director to be a serving officer is alarming, not least because it will inevitably be seen in the context of the notorious case of Trooper Williams, which, thanks to my noble friend Lord Campbell of Alloway, your Lordships' House has valuably examined and which has already been referred to this afternoon. It is worth reminding your Lordships that in that case, the commanding officer, acting entirely within his legal powers, now to be taken away by the Bill, and on legal advice obtained in theatre, got it absolutely right in dismissing the proposed case on the grounds that, in the operational circumstances prevailing at the time, there was not enough evidence to warrant a prosecution. Nearly two years later, this belatedly became the view of the Director of Public Prosecutions, to whose civilian service the case had been very dubiously referred, and the case was dropped virtually at the door of the court.

On the co-existence of the parallel civilian jurisdiction and the military, amendments that my noble friend Lord Campbell of Alloway will table will give us most valuable insights into the possible role of the High Court in making a referral instead of the Attorney-General. I think that there will be plenty of room for valuable debate there.

I have thought it very regrettable that the Government have removed the jurisdiction of the commanding officer in this context, which was so correctly exercised in the case of Trooper Williams and which I believe has been of long standing. If it has been of long standing, it is rather interesting to reflect on why that is the case—I have not been able to look it up—and on what was said in its favour in the first place. There have been plenty of opportunities to get rid of it before now.

It is important to have an idea about why this has happened. I listened with care to what the Minister said; I listened with no less care to the noble and
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gallant Lord, Lord Bramall, when he said that he would not have too much difficulty in accepting the removal of the jurisdiction. It is important to know whether it is being done in deference to Strasbourg and the ECHR. Does it derive from some specific judgment? Can we be assured that this is not another example of gold-plating? After all, this jurisdiction had co-existed with our obligations under the ECHR for some 50 years before Trooper Williams's case.

I will want to look carefully at what the Minister has said, but I note with a little scepticism the assertion that the commanding officers do not want the jurisdiction. Of course I have great respect for what General Sir Mike Jackson has evidently said, but I doubt whether it is true that Trooper Williams's commanding officer, his successor or his contemporaries do not want that jurisdiction. That power is of course reviewable judicially if it is exercised irrationally or unlawfully. I would be perfectly prepared to see the Attorney-General, who has a corrective overall supervisory role, being allowed to appeal against this exercise, but there is plenty here to be looking at. I do not give up my initial and instinctive reaction of regret that this power is being taken away.

The noble and gallant Lord, Lord Bramall, asserted that military justice cannot be exercised in a vacuum. I respectfully agree and with that in mind expect that we will take up some time in what will be a productive Committee stage.

5.55 pm

Lord Roper: My Lords, like the noble and learned Lord, Lord Mayhew, I do not have the same first-hand experience of service discipline as many of the noble and gallant Lords taking part in this debate. It is 50 years since I completed my national service in the Navy. My excuse for taking part is that, more recently, 30 years ago when serving in another place, I served on the Select Committee considering the Armed Forces Bill of 1976; and the very special procedure that the other place uses for considering these quinquennial Bills is a useful introduction and education to the range of issues of service discipline that we are considering here today. Indeed, five years ago in this House, when we were considering the previous Armed Forces Bill, I timorously suggested that there might be value in there being a Joint Select Committee of the two Houses to carry out the pre-legislative scrutiny of these quinquennial Bills.

I have read with considerable interest and benefit the report of the Select Committee in another place and in particular the evidence of the noble and gallant Lord, Lord Boyce. He said that there should be a tri-service Act which maintains options for "tolerable variation". That is a rather satisfactory outcome of this legislation. Indeed, I will have to think hard about the points made by my noble friend Lord Thomas of Gresford on the composition of courts martial, because that is one of the tolerable options and variations. Probably in normal cases the majority of the members of a court martial would come from the service of the individual whose case was being
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considered. We will need to come back to that point. Perhaps there are arguments in favour of my noble friend's point of view.

The other point about the Bill is that it is an enormous operation transforming the structure of service discipline. It is an enormous tribute that we have the Bill. Will the Minister say how long it will take us to introduce it? It is a large and complex operation and, as has been suggested, it will be necessary for people to get to know something about the new procedures. These things cannot necessarily be carried out overnight.

When we go through the Bill we see that a great deal of it depends on regulations. The Minister himself made a point about Clause 127(2)(e), which is a complex matter that will be determined by the regulations. I wonder how far we will be likely to be able to see or draft the regulations when we come to consider the Bill in detail in Committee, because it seems that a number of the points, and points of substance, including the issue of the roles and definition of commanding officers are matters to be prescribed. It would be useful if we could see those before we come to make our final conclusions.

One thing that I am particularly pleased about is the fact that the Government changed their mind in the Commons about annual renewal of the Armed Forces Act. The Act is to be renewed by order every year, maintaining a very long-standing historical principle whereby the Armed Forces are authorised once a year by both Houses of Parliament. The lapse of that provision, as was originally proposed and was strongly argued against in the Select Committee, would have been a mistake.

Only yesterday, we saw in the Government's response to the Deepcut review how far they have moved in developing a commissioner of military complaints. It will be necessary to examine in some detail the specific amendments that the Government table on this point to discover whether there has been a significant change in response to Nicholas Blake's report, or to what extent this is little more than a cosmetic change. We shall need to give a good deal of consideration to that.

From what has been said so far, and what I suspect will be said in later contributions, there will be plenty of opportunity for detailed consideration of this Bill in the Committee of the whole House to which it is to be committed later this evening. But I join others in welcoming an important step forward in developing a framework for military discipline and, like others, pay tribute to those who are going to be subject to it—our very gallant servicemen of all three services.

6.01 pm

Lord Ramsbotham: My Lords, I thank the noble Lord, Lord Drayson, for the considerable efforts that he has gone to in the past weeks to brief my ex-military colleagues and I on the progress of this Bill. We have appreciated greatly the trouble that he has taken. Like many other noble Lords, we are generally very satisfied with the great majority of this Bill. However,
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I am extremely glad that the noble Lord, Lord Drayson, mentioned his concern about delay, because that must impact on everything to do with military discipline.

I am conscious that when one is talking about a military matter at the moment, one has to be aware of three factors affecting the selection of the aim, as it were, if you are looking at it in a military context. First, there is a tendency to think that the retired military officers represent the "old and bold" and the reactionary, as opposed to the modern people who are facing completely different challenges. That is not wholly true, because the challenges basically boil down to persuading people to do what they do not necessarily want to do on behalf of the country. Secondly, there is the danger of extrapolating emotion out of highly publicised events, such as Deepcut, the Trooper Williams trial, the 3 Para court martial and the case of the guardsmen, as well as the forthcoming matter of the Queen's Lancashire Regiment, as opposed to focusing on the needs and everyday requirements, many of which will not be discussed in emotive circumstances. However, I have to say that many members of the Armed Forces will be looking with great interest to see what action is taken against the policemen involved in the shooting in Stockwell, having observed what happens to soldiers who open fire in Iraq.

Finally, we are very conscious that fewer and fewer people actually understand why the Armed Forces need a separate military discipline code. That was extremely well summed up by the Judge Advocate General, Judge Blackett, in his evidence to the House of Commons Select Committee. He said:

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

Armed with that when I look at this Bill, I join with the comments of my noble and gallant friend Lord Bramall and the noble and learned Lord, Lord Mayhew. There are two aspects of particular concern. First, there is the maintenance of the position of the commanding officer and, secondly, there is our concern about the military experience and expertise of those who are to act in the prosecuting authority in various positions. A point that has already been raised by my noble and gallant friend Lord Bramall concerns commanding officers' involvement, once a case is taken out of their jurisdiction by the service police and the prosecuting authorities. The requirement that the commanding officer must be kept informed of what is going on should be accompanied by the enablement of the commanding officer to make representations to those people involved at the time to ensure that all the military factors, or any factors that they may need to know, are actually there. This is not contained in the Bill, and it should be teased out during Committee.
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As the noble and learned Lord, Lord Mayhew, said, it is very difficult to be precise about what you mean by "military experience" in terms of the Director of the Service Prosecutions. Could he have been a platoon commander in an infantry battalion? Could he already have served as a prosecuting authority in a junior capacity? We need to be more specific than merely listing the legal qualities required, because he may have to make military judgments on cases that come to court.

One or two other things concern me about the Bill in its present state, relating to the fact that a number of other issues were not satisfactorily discussed in the other place before they came to your Lordships' House. For example, Clause 154, on single service panels, has already been mentioned. This is a tri-service Bill, which is fine; there will be many occasions when you need tri-service justice because you have all three services together. But for the vast majority of the day, individual servicemen and servicewomen will serve in their own service and that is all that they will see. Therefore, it is very important to ensure that single service justice panels are continued.

I know that a very large number of amendments will be tabled to the Bill, and here I thank the noble Lord, Lord Astor of Hever, for the enormous effort that he and his research staff are putting into this, which he has been sharing with my noble colleagues. When the Minister looks at the speeches and suspects that there may have been collusion between the 34 stars mentioned by the noble and learned Lord, Lord Mayhew, he is absolutely correct—and I assure him that that collusion will continue.

I have three particular concerns. First, the House of Commons Select Committee report on the Armed Forces Bill mentioned one particular concern that it expressed to the MoD. It says:

"We expressed our concern to MoD that we had not been provided with more detail of the proposals likely to be in secondary legislation, without which we have not had a complete picture of the legislation's proposals. We understand that MoD intends to produce more details before the conclusion of proceedings on the Bill in the House of Commons . . . We urge the Government to provide more detail on the proposals that will be included in subordinate legislation and how they will work before the House of Commons completes its consideration of the Bill".

That point has already been made to the Minister in the deliberations that I mentioned earlier, but it is enormously important that some of the things stated in the Bill more as a generality are spelt out in detail, particularly for the future, because the detail may be lost. For example, it needs to be spelt out that the commanding officer may make recommendations during the process rather than treating it as a matter of, "Someone said some time that it could be". That is important.

Secondly, it has been quite clear that the image of the military has been taking something of a bashing in the media, particularly over high-profile cases. I am extremely glad that the noble Lord, Lord Astor, mentioned the resurrection—or the hoped resurrection—of the post of director of public
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relations for the individual services. I have to declare an interest in this because I was the Army's director of public relations during the Falklands war, so I know something about what is involved. However, the job of government information service people is connected more with Ministers. By removing the service directors of public relations, you remove people who are involved with the protection and the projection of the image of the Armed Forces. If I were director of public relations now, I should have already been preparing how I was going to limit the damage that will be caused when the Queen's Lancashire Regiment commanding officer is arraigned in September, for example. Some of the recent problems in Iraq, I believe, could have been better explained if someone in uniform was responsible for discussing the issue with the media, and then no more will this be involved with the legal cases that I think will come before us.

Finally, I hope that when timings are prepared for the furthering of the Bill, there will be sufficient time in Committee to cover all the amendments that come out, rather than just sending something incomplete back merely because we have run out of time.

6.11 pm

Lord Guthrie of Craigiebank: My Lords, in general I welcome the Bill. I thank the Minister and his team for the trouble they have taken in briefing us on the progress of the Bill. Thank you very much indeed.

This Second Reading is happening at a very difficult time for our services. They are involved in operations in Iraq which for many people in our country, perhaps the majority in our country, are unpopular. For the first time in my own experience the services do not have overwhelming backing for what they are doing, although the country is still supportive of the services themselves. The new commitment to Afghanistan will, I think, pose further difficulties, may continue for a very long time and could become as worrying as Iraq. I do not think that we can guarantee to have support if the operations appear to be going wrong. I think that the services know that and are very concerned.

Our services need a discipline Act that they can believe in, one which reflects and understands just how difficult it is to take part in military operations and the challenges that the services face. The structures they need are in many ways different from those in civilian life. What they need must be understood. I am still not sure if many in the Government, in Parliament and the legal profession begin to understand that, despite their assurances that they do. There seems to be less understanding than there has been for many years. There is still a feeling in some circles that service law should be the same as civil law. That cannot be right if we are to have effective fighting forces. I think it illustrates the lack of understanding that I am talking about.

The bond between the commanding officer and his or her unit is of great importance. I was very relieved to hear what the Minister had to say about the service police and the commanding officers. I and others did
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not interpret what is currently written in the Bill as quite saying that. We were concerned. I hope it will be absolutely clear when it is looked at again.

I can well understand why a single Act, as opposed to separate service Acts, brings benefits. It is much more convenient to have one Act. However, we would be very wrong to forget and not to recognise why we have had three different Acts. We should be very careful. I agree entirely with what the noble and gallant Lord, Lord Bramall, said on this subject. The Acts reflected the nature of the services, the different environments they fight in and the way they go to war. There are many differences. For example, in the Royal Navy the captain of a ship is the man who decides whether to go into action or avoid action. The ordinary seaman has little choice; once the captain has decided which course to sail on, he cannot run away. In the Royal Navy, only a minority of officers and crewmen close with the enemy and have to place themselves in mortal danger. The Army is different and, I think, is rather more complicated. A far higher percentage of officers and men go into battle and have the opportunity to run away. It is important that, when and where necessary, services are different. That needs to be recognised. For example, the composition of the courts-martial boards is highly relevant.

The services need to have confidence, as other noble Lords have said, in the Director of Service Prosecutions. I entirely agree with what the noble Lord, Lord Astor, said. It is difficult to define "military experience" but it is surely much more than just having a senior military rank. Having a civilian in this important role would be quite wrong and damaging.

Lastly, over the past few years we have been in danger of our services becoming risk averse. The noble Lord, Lord Astor, referred to a recent survey. We must be very careful that servicemen do not become frightened to take the necessary actions on the battlefield. We know that some soldiers have been nervous to squeeze the trigger when they needed to. The Act must continue to recognise that it has great responsibilities for operational effectiveness. I think that much work needs still to be done in Committee to reassure the services. As the Minister, the noble Lord, Lord Thomas, and others have said, the services need complete clarity on what the law is.

6.18 pm

Baroness Dean of Thornton-le-Fylde: My Lords, I, too, welcome the opportunity to discuss this long awaited Bill. I would also like to thank the Minister, his predecessor, my noble friend Lord Bach—who was in his place a short while ago—and the MoD Bill team, headed by Mrs Teresa Jones, for their valiant efforts over the past two years in trying to keep noble Lords up to date with the various debates on and guises of the Bill.

The Bill's overall intentions are to be welcomed and many noble Lords have already done so. It is 50 years since the discipline Acts of the three services were implemented in the 1950s. Since that time, society has
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changed beyond recognition in so many different ways. The Armed Forces themselves have changed. There is much more bi-service and tri-service co-operation and operations today. A disciplinary Act is needed that covers all three services while at the same time recognising the unique culture in each of the three services—or, as the noble and gallant Lord, Lord Boyce, discreetly said before the Select Committee, the tolerable variations between each service.

The Bill was referred to the Select Committee in another place and that committee's considerations were in public. I welcome both those aspects, which have certainly been helpful in understanding this wide-ranging Bill. The rigour of the committee's considerations has helped a number of us when reading the reports and the evidence given to the committee. The Armed Forces are distinct from other parts of society. The work and the commitment that our forces pledge to the nation—sometimes people have to give their very lives—make it paramount that there is a separate system of service law and discipline to that for civilian folk. That is the basis on which I approach this really quite complex Bill.

I wish to address some key parts of the Bill. Chapter 3 covers desertion, which has been referred to by my noble friend Lord Judd but no one else. The clauses are a considerable improvement on what we have at the moment, and I welcome those improvements, but that is not surprising, since the disciplinary Acts written 50 years ago were bound to be very different from what we would expect today. However, I need convincing that a maximum of a life sentence is necessary for desertion. I do not agree with my noble friend Lord Judd that we would invite people into the services and then go around encouraging them to be conscientious objectors, which is the complete opposite of the intention. However, I need convincing that a maximum of a life sentence is necessary for desertion.

Appreciating and understanding the military context is essential to the administration of a fair justice system in the Armed Forces, and key to that is the commanding officer. Clauses 52 to 54 relate to the role of the commanding officer, which has been referred to already in the debate. I understand the logic in the Bill, and I understand the evidence that was presented in another place. I also understand that it was accepted that the commanding officer will be kept "in the loop". I am not too sure what that means in a disciplinary context.

There is a reference in Clause 127 to giving power to "prescribed persons" to be notified of "prescribed matters". The Minister referred to that in his opening remarks. Will he confirm that the words proposed in regard to the commanding officer being "in the loop", so to speak, will be in the Bill? If they are there, as I hope they will be, just what involvement will the commanding officer have? If the words are not in the Bill, will they come forward in secondary legislation during the passage of the Bill through this House, so that we have an opportunity to consider them?
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Chapter 2 deals with time limits. If there is one area where this Bill could help, it would be to shorten the time that the process of the system of discipline takes—the whole process, not just getting to the point of charging. As we have seen in all too recent cases, quite often it is the time that the process takes that causes the stress that has such a damaging impact on the service personnel concerned, their families and sometimes the wider morale of their colleagues in their unit back at base. I welcome Chapter 3, which covers double jeopardy. Trooper Williams is the often quoted example, but this is not legislating for a one-off situation; that would be bad legislation. Other parts of the Bill will help, but this chapter is very important.

In Part 18, Clause 358 is one of the most critical parts of the Bill. It provides for the position of a Director of Service Prosecutions, but it does not provide that the person appointed must be either a serving officer or have military experience. I have read with interest the evidence given to the Select Committee in another place, and I have followed the various briefings from the MoD. I understand the difficulties about getting the right wording in the Bill, and I agree that the core must be that the best person for the job should be appointed. But, with my limited experience with the Armed Forces, I cannot believe that it is not possible to guarantee that the Director of Service Prosecutions has both legal and military experience. In fact, I think that that is essential, not least because we are talking about the confidence of service personnel in the process and in the people involved in it who are meting out the decisions affecting their lives. The Minister may, I believe, recognise that there is an issue here, and I ask that in winding up he will give an indication of how he intends to address this in Committee.

All Bills have secondary legislation, and this one perhaps more than most. Mr Humphrey Morrison, director of legal services at the MoD, in describing the scale of the task of drawing up the statutory instruments relating to this Bill, said:

"It is a big project".

That is perhaps one of the best understatements that I have heard in a long time. As I am sure the Minister recognises, it is important that the various pieces of secondary legislation relating to this Bill come before us as the Bill progresses through this House. It is important that the Bill does not leave this House without the principal components that will be covered in secondary legislation being put before us for consideration and discussion.

There is much to welcome in this Bill. Much of it will give support both to operational effectiveness and to the confidence of personnel in the system. But some of the changes that are needed—which have been highlighted in this debate and are derived from the work of the Select Committee—will in the end, of themselves, determine just how successful the Bill will be in meeting what is expected of it.
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6.26 pm

Lord Campbell of Alloway: My Lords, at the outset, I thank the Minister for the rather exceptional treatment that we have had in being able to discuss with an open mind how we could improve this Bill. That is greatly appreciated.

I am concerned about whether some form of statutory safeguard is now requisite, as has been spoken to on so many occasions between 14 July 2005 and 16 February 2006 when this was discussed. Is it requisite to do something to avoid repetition of what happened not only to Trooper Williams but to Sergeant Roberts, after years of delay? I am very grateful to the noble Lord for the proposal to end delay and to my noble friend Lord Astor of Hever for trying to fit in another safeguard to avoid delay. Even with that, there still arises the question of what happens after a period of delay when you find that there is no quality of evidence to support the charge. Even if you reduce the delay, the situation for the member of the Armed Forces involved, on a charge where there is no quality of evidence, must be looked at with some care.

In this context, the Bill makes no provision to inhibit resort to the process under which trials of cases in the civil courts is ordained by the Attorney-General, whether or not at the behest of the Director of Army Legal Services or what will become the DSP, for offences that otherwise could be dealt with at courts martial. Such ordnance is made ex cathedra, within the closet of absolute discretion, not subject to review by the judiciary, without notice, reasons or any means of objection. That is in defiance of the fundamental principles of justice. It remains a matter of current concern for the Armed Forces that now must be addressed, not only in the interests of justice, but under the new concept that justice has to reflect the provisions of the Human Rights Act. The purpose of my speech is merely to put down a marker for a probing amendment.

There is no need to deal with detail at Second Reading, but it is proposed to require the Attorney-General to apply to the High Court if he wishes to resort to the civil jurisdiction for the three serious offences of murder, manslaughter and breach of convention. The High Court would then adjudge whether that would be in the public interest. No one seems to imagine the truth, which is that you should transfer jurisdiction only in the public interest. I suggest that that is a matter not for the Attorney-General but for the court—totally objectively—to decide, as it should decide whether there is the quality of evidence to warrant a trial.

In other, non-serious cases, the Attorney-General can make any dispensations or decisions, subject to the one qualification introduced by the noble and learned Lord, Lord Mackay of Clashfern, who said that there must be always some means of objection. In such cases, it is suggested that the qualification introduced by the noble and learned Lord should be met by regulations made under Clause 127(1). So although there is disparity of treatment, in all cases of a transfer
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from the court martial jurisdiction to the civil jurisdiction a reasoned decision has to be made. That is common to both categories. In the serious category, that decision must be made by the High Court. In the other category, the decision has to be made giving reasons—a totally unreasonable decision would be set aside on judicial review. So, there is a structure.

This matter is approached on the basis that, as the noble and gallant Lord, Lord Bramall, has said on more than one occasion, in particular on 16 February, an armed serviceman's legitimate expectation is that he should be tried for these serious offences by a court martial, if the offence is committed in operational circumstances. That would mean that some of the people who sit in judgment have experience of lethal situations in which mistakes are apt to be made, because the rules of engagement are not readily understood and are sometimes not understandable. Specific orders on such urgent rescue missions as to free hostages and to avoid torture and death—for example, the operations in Sierra Leone and Basra—have to be regarded in a different light from murder in the streets of Manchester. Such matters have to be assessed by someone who has practical experience and knowledge of the situations that arise—and that will be incorporated into the amendment.

I am anxious not to detain your Lordships a minute longer than I need to, because I have given you the broad structure of the amendment that I propose to table and, with the leave of the House, I will deal with the details on a subsequent occasion.

6.56 pm

Lord Vincent of Coleshill: My Lords, as I have said before in this Chamber, I accept without reservation the need for members of the Armed Forces to live and work within a relevant legal framework. For those who may have breached such laws, I recognise that there have to be appropriate and effective procedures for dealing with such cases.

I also have no difficulty in principle with bringing such arrangements together under a single Armed Forces Bill, so long as it also addresses the specific and necessary needs of the individual services, which have been mentioned by a number of noble Lords. But those responsible for defining such a legal framework for our Armed Forces and those who may subsequently be involved in dealing with alleged breaches under the new processes defined in the Bill need to have a clear understanding and personal awareness of the uniquely demanding nature of service life.

Members of our Armed Forces must automatically accept their commitment to combat or other operations, often at very short notice, without choice or consultation, thereby putting themselves in harm's way and, if needed and authorised under the their rules of engagement, taking lethal action themselves. In many cases today, as we can clearly see on the ground in Iraq and Afghanistan, those demands are made not just on commanders in the field, but on the most junior ranks, often in highly lawless societies, where their
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potential adversaries, whoever they might be, often operate totally unconstrained by any legal niceties or human rights considerations.

So, from my perspective, combat operations have no equivalent in any other profession, while today an ever smaller proportion of our population at large, including Members of the other place and Her Majesty's Government, have any first hand experience of such operations. In a wider sense, that is greatly to be welcomed, because it is a clear indication of the overall effectiveness of our security and defence policies over the past 40 years since National Service conscription was phased out in the early 1960s and has not been needed since that time.

One less obvious effect is that many of those seeking to introduce this new legislation—including arrangements for dealing with alleged breaches by the Armed Forces on operations—have no first-hand experience of such a uniquely demanding environment. This caused such concern both in the Armed Forces and more widely among the public when, for example, serious charges were laid and men brought to trial after unacceptably long delays of three years or more, but the charges were then dismissed or the men found not guilty. I therefore welcome the Minister's acknowledgement of the adverse consequences of such delays and the proposed amendment for addressing this matter referred to by the noble Lord, Lord Astor of Hever.

This also bears directly on some other aspects of the Armed Forces Bill as currently drafted. For example, who is to appoint the independent Director of Service Prosecutions and how will he be selected for such a post? What direct experience of combat operations will he have had to inform his judgment on the prosecution of specific cases? Furthermore, such cases, when they are referred to the Service Prosecuting Authority or the Crown Prosecution Service, may have had their origins in highly lawless and violent environments, where normal forensic investigations cannot possibly be conducted as they are in civil cases, despite the best endeavours of the Royal Military Police. In such demanding cases, how is the performance of the Director of Service Prosecutions and, where engaged, the Crown Prosecution Service to be assessed and by whom? For example, would a series of failed prosecutions, after an inordinate delay before trial, have a bearing on the career progression of those individuals concerned, as it surely must on the lives of our servicemen and their families who have gone through this harrowing process?

Finally, in the light of the comments of the noble Lord, Lord Judd, how are the government Ministers involved in the commitment of our Armed Forces to military operations to be accountable for their actions? Personally, I accepted the case for the deployment of our Armed Forces on operations in Iraq over three years ago on the basis that there was apparently clear evidence of illegal and threatening weapons of mass destruction and that UN Security Council Resolution 1441, which was already in place as a last-chance warning to Saddam Hussein, provided an adequate legal basis for such an operation. We quickly learnt that no such specific threat existed. Who in Her
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Majesty's Government at that time was responsible for developing and delivering the longer-term, wider strategy for Iraq, in concert with the United States, including timely and effective arrangements for its reconstruction after the war-fighting phase had been concluded? The evidence now suggests that no such timely and credible plans were prepared, despite a number of questions in this House at the time, hence the continuing mayhem and bloodshed in parts of Iraq, which still threaten the lives of our Armed Forces and others today.

This, in turn, relates to the question of war-making powers, currently being reviewed by the Constitution Committee in this House. In the light of this Bill, that committee might wish to consider the relative responsibilities and accountability of those formally committing us to military operations and those members of our Armed Forces who then have to undertake them. I should emphasise that I raise the matter not as a criticism of past events, but because under this Bill, as I understand it, the Attorney-General, who would normally advise the Government on the legal justification for a possible military operation, would also have responsibility for the superintendence of the new Director of Service Prosecutions.

Given the apparent discrepancies in the Government's accountability for such operations and the overlong delays in bringing military cases to trial, we would be wise to look very closely at some of the details to which I have referred in the Armed Forces Bill before us, including the appointment and role of the Director of Service Prosecutions and to whom he should be accountable for his performance. If none of those concerned has ever themselves been subject to the reality of combat operations, how can they then make an informed and balanced judgment on such matters.

6.46 pm

Lord Inge: My Lords, like other noble Lords I would like to thank the Minister for keeping us well informed about the progress of this legislation.

A cursory glance at recent headlines and newspapers—following the dismissal of the case against the three guardsmen, who were cleared of manslaughter of an Iraqi looter, and Deepcut—make it clear that the military justice system is under a spotlight that is totally unique in my experience. This is unsettling for the Armed Forces at a time when they are heavily engaged in demanding operations in Iraq and Afghanistan.

There is unease among the services about what all of this really means. Are the services going to have a legal system, or a system of justice, that they can trust and which represents the realities of—I stress this—operational service in places such as Iraq and Afghanistan? More than ever I wonder how many people really understand the huge demands that we place on our servicemen when they are on operations. Instead, it was clear from a study conducted by the
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Adjutant-General's department, that there was confusion and hesitation about opening fire for fear of prosecution. I am told that this has all been sorted out, but I still wonder. It is certainly a clear illustration of the concern felt by people who are risking their lives on the nation's behalf. To me this means that we have a huge responsibility to ensure that the changes to military law recognise not only the realities of operational service but also that in certain instances the three services are very different—they are difficult too—and the critical importance of the military chain of command, particularly the commanding officer, in administering the military justice system.

First is the hugely important role of the commanding officer, as I have just said. His role is essential in the chain of command. We have had verbal reassurances that this is recognised and that his role will be protected, but we will need to examine in detail in Committee that that is right. Certainly, as the noble and learned Lord, Lord Mayhew, has pointed out, he will have no part to play in certain cases where serious offences have been committed—I wonder about the Trooper Williams case. There, the commanding officer having dismissed the case, his judgment was overruled by the Army Prosecuting Authority, but two years later—I stress this—the commanding officer was vindicated in his judgment. I will certainly want to probe closely how we handle cases of this nature. Also, as many other noble Lords have mentioned, the selection of the director of the Service Prosecuting Authority is going to be hugely important. It must be someone who has not only the confidence of the services and the chain of command, but also the agreement, I hope, of the three service chiefs and the Chief of the Defence Staff.

Going back to the role of the Director of Service Prosecutions, it is enormously important that the commanding officer, having had advice from the Director of Service Prosecutions, is the one who remands the soldier or serviceman for court martial, if the evidence warrants it.

In addition, during that investigation it is enormously important that the commanding officer is kept informed of progress by the service police and that, before the soldier or serviceman is formally charged, the commanding officer has the right—I emphasise, the right—to comment on the charge. That reinforces yet again the huge importance of the Director of Service Prosecutions having a real understanding of the demands of operational service. Whether it would be possible for the holder of that post to be a serving soldier, sailor or airman, I simply do not know, but he or she must have the confidence of the service commanders.

I should tell noble Lords that I am trying to cut out parts of my speech, as much of what I intended to say has been said by others. But perhaps I may touch on the subject of the membership of courts martial. I am afraid I do not agree with those who have said that it should be a tri-service tribunal. It is enormously important that the membership of a court martial board represents the service of the serviceman being tried.
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I return to the issue of the commanding officer. We need to recognise the huge importance, particularly on operational service, of a regiment having faith in its commanding officer. I recognise that there are good and bad commanding officers, but I am absolutely clear that there are many more good ones than bad ones. Not only the Armed Forces but the nation have a duty of care and responsibility for our servicemen and servicewomen when they ask them to risk their lives on the nation's behalf. A key figure in that responsibility is the commanding officer.

My next point concerns the review of court martial proceedings—something that we have not touched on this afternoon. In the past, the chain of command had a responsibility to review, and comment on, the findings of a court martial. That was a very important part of the responsibilities of the chain of command, but I understand that it may no longer be the case. Certainly from my initial MoD briefing, I gained the impression that the services were content with that, but I now find that the Army wishes to keep the review process. I feel that, as the Army is far more likely to have to close with the enemy in close combat, we need to be sure that the interests of its soldiers are properly looked after. Again, this is something that I shall want to look at in Committee. Certainly I would like to know why it is felt necessary for the findings of a court martial to bypass the chain of command.

Finally, I make the point that the timescale for the introduction of this new legislation is very tight. It will be hugely important to ensure that not only is it explained carefully to people right down the chain of command but that those involved understand what they have to do and the timescale in which they have to do it.

6.53 pm

Lord Dubs: My Lords, the noble and gallant Lord, Lord Inge, referred to the military justice system as being under a spotlight, and I think that he is right. I wish to refer to an aspect of the military justice system that is not contemporary but goes back some 90 years. I refer to the 306 soldiers in our Army who were shot for cowardice, desertion or mutiny in the Great War between 1914 and 1918, some 26 of whom were Irish. I understand that the 90th anniversary of the battle of the Somme will be in a few weeks' time, and therefore it is absolutely right that we should consider this issue, which is not new. I believe that those soldiers should now be pardoned for the sake of their families and for the good name of our Armed Forces.

I appreciate that, after so many years, we do not have full records of the courts martial. However, it is clear that the trials were short. Sometimes they lasted for as little as 20 minutes and sometimes as long as an hour. Often the soldiers who were charged did not have anyone to defend them. They were frequently shell-shocked and needed medical or psychiatric help, not accusations of cowardice. Some of them were very young. Indeed, they had lied about their ages in order to be admitted to our Armed Forces so that they could fight for their country. They were far too young even
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to be considered for execution. It is clear that today the majority would not even have been charged but would have been given help.

I appreciate that no one is happy about this situation, and I hope that my noble friend will accept that justice needs to be done. I am sure that the whole House will see it in that way. The question is: how can we achieve that justice? Of course, there are difficulties but I think that it can be done. A pardon is absolutely the right answer. New Zealand saw it as being so—it pardoned its executed soldiers some years ago. I understand that Canada found a way of giving an apology to its executed soldiers, but I think that the New Zealand model is more appropriate.

I also understand that the late King George V gave pardons to certain senior officers. Certainly there are records of some officers being pardoned, and others were properly diagnosed as suffering from shell shock and a breakdown of the central nervous system. We have all read of those who were referred to Craiglockhart War Hospital and nursed back to health. Some eminent names from our literary history were there: Wilfred Owen, Siegfried Sassoon and Robert Graves. Possibly officers were treated better, and there is also a suggestion that some Irish soldiers were treated worse. But that is not my point. I believe that all those who were victims should be viewed in the same way as having the right to a pardon.

I am not criticising the officers who sat on the courts martial. I am sure they were often desperately unhappy about what they were doing but they had to do it. We know that times were different then. We know that attitudes were different and that many of the sentences were given out in difficult circumstances near the battlefields and had to be carried out almost immediately.

I do not want to take up the time of the House for more than for a moment or two. I simply want to say that I have an amendment on this issue ready for the Committee stage. It was passed to me by Andrew Mackinlay MP, who has worked very hard on the issue for a number of years. Unfortunately, when he tried to raise it in the other place, there was no time to start debating the amendment, but I believe that we shall be able to do so here.

On a more optimistic note, I hope that the Government will make it unnecessary for me to move the amendment. Perhaps my noble friend will be able to give me an assurance that pardons will be granted without my having to subject the House to yet another amendment to the Bill.

Surely the families of those who were executed—wrongly, in my opinion—have the right to see pardons being given to their beloved ones from a generation or two ago. The executed soldiers deserve better treatment than to be remembered as cowards; instead, they should be remembered as brave men who were willing to fight for their country in difficult conditions. Lastly, surely members of today's Armed Forces have the right to serve in conditions where some of their predecessors who served their country are not unfairly tainted.
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6.58 pm

Earl Attlee: My Lords, I am grateful for the Minister's detailed introduction of the Bill. I remind the House that, as we speak, I am a serving officer in the TA and am subject to the service discipline Act. I have been subject to summary jurisdiction myself. I lost a camp bed, and a squadron sergeant-major who was responsible for that 30 years ago is one of my best friends. I have also had to exercise summary jurisdiction, and I have served on some minor courts martial.

We on these Benches have been asking for a single-service discipline Act for many years. I cannot recall serving on a recent exercise or operation when members of other services were not serving alongside me. At this stage, there is not much new for me to say, but I have a few observations.

The noble Lord, Thomas of Gresford, queried single-service courts martial. I rather share the view of the noble and gallant Lord, Lord Inge, so I am not sure that I am with the noble Lord on that. However, I am much more interested in his comments about majorities on courts martial. My noble and learned friend Lord Mayhew talked about how little evidence there was in the Williams case. My understanding is that there was rather too much evidence. Apparently, the corporal in the Royal Military Police made three different statements, and I am confident that the noble Lord, Lord Thomas of Gresford, would lick his lips at the prospect of cross-examining the corporal in order to determine which statement the court martial was to believe. Clearly, legal advice received by the commanding officer was absolutely right in the first place, perhaps even if the last statement was accurate.

The noble Baroness, Lady Dean, was quite right to caution your Lordships about using the Trooper Williams case to measure the Bill against. If matters go so wrong, however, it is not surprising if there is significant parliamentary activity, much of it directed at the noble and learned Lord the Attorney-General.

Many noble Lords have talked about delay, and I agree with everything that has been said. I certainly look forward to pursuing the amendments about time limits. Not only would they be fairer to the suspects, they would also be fairer to the victims. A short flash-to-bang time is also valuable for maintaining our disciple—surely our objective. Furthermore, if there are time limits, it is much more likely that the necessary resources will be put in place to achieve them. However, it is important to remember that certain types of cases—fraud comes to mind—will require much more time to investigate.

There is good news: we are seeing signs of increasing military experience in managing the legal aspects of current operations. Clause 8 covers the offence of desertion. Many noble Lords will have received briefing on it, and I suspect a lot more is on the way. The other place expended much effort in considering this aspect. I hope that we do not expend quite so much. Members of the Armed Forces do not expect to be able to pick and choose which operations they are deployed on. They know that it is not their duty to
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determine the desirability or legality of any particular operation. However, there is nothing wrong with them considering and debating the matter among themselves. It is for Government and Parliament to make the decisions. However, it is a little disappointing for the Armed Forces at the conclusion of the Iraq conflict, which was over weapons of mass destruction, when none was found. It makes the operation of questionable legality, a point made by the noble and gallant Lord, Lord Vincent.

I am grateful that the Government have already agreed to retain the annual continuation order. That is an important and highly desirable safeguard, a check on the Executive. We frequently debate defence matters these days, but when I started in your Lordships' House in 1992 we rarely did. The first Gulf War was over, and the campaigns in the Balkans were only just starting. Hopefully, one day our Armed Forces will not be so busy, and your Lordships will not be required to devote quite so much attention to matters of defence and security.

The noble Lord, Lord Dubs, properly and skilfully raised the issue of First World War soldiers shot for military offences. I can think of few military justice issues that are as difficult to determine. I would be happy for the noble Lord to pursue his amendment, if only to enable me to carefully re-examine my current position that we should do nothing.

In all three services, disciplinary problems can also be dealt with by administrative action rather than a prosecution under service law. My concern is with it becoming increasingly difficult to use summary jurisdiction, administrative action is being used instead. An obvious example is the loss of an identity card. I have taken summary jurisdiction action against my soldiers for losing their ID card. I had to do it once, and I never lost an ID card again. In using administrative action, there is no attempt to determine whether the soldier has failed or just been unlucky.

Action can, in certain circumstances, be quite tough, however. It can include the termination of a career, even when just short of the pension point. That does not sit well with the concept of unlimited liability. I will read Hansard carefully, because I believe that the Minister touched on this problem and am sure that it will bear further scrutiny.

The Bill seeks to improve the service grievance procedure. There is plenty of space for this. The Blake review proposes a commissioner for military complaints. The Government have responded to that report commendably quickly. I have yet to study that response, but am sure that it will result in plenty of debate during the passage of the Bill. We will have to look closely at the mischief a commissioner is to rectify. If he is to identify criminal activity such as Skinner's, it might not work since the victims would be understandably reluctant to report such attacks to anyone. I take it that we will see these amendments tabled before Committee stage. I will be pursuing numerous amendments as part of our scrutiny of the Bill at later stages. I hope that the Minister will have a good answer to each.
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Members of our Armed Forces perform fabulously well. The legislation underpinning their work must be just as good. I am sure that all noble Lords will seek to achieve that.

7.06 pm

Lord Craig of Radley: My Lords, the noble Lord, Lord Drayson, and both the present and previous Secretaries of State and MoD officials, have made themselves available to many noble Lords to talk about this legislation. That has been extremely helpful and appreciated in one's attempts to understand a Bill of such importance to the Armed Forces.

The service disciplinary Acts of 1955 and 1957 came into use soon after the United Kingdom subscribed to the human rights convention, but were not much affected by it until the last decade. Some significant changes, particularly in arrangements for courts martial and other criminal proceedings, were then introduced due to findings by the European court. Whatever its many merits, the convention has not been an easy bedfellow for the Armed Forces. It has led to changes for the three services which, in the manner of the services, they must learn to accept. But the tried-and-tested links between command and discipline have been weakened.

Now is not the moment to rerun these arguments, so I turn to the Bill. It will be the basis for all service discipline for perhaps the next half-century or more. The Explanatory Notes are a model of what should be provided for such complex and detailed legislation, and I warmly thank the authors for that. I accept that the Bill is timely, not only because there is more joint expeditionary activity than occurred in most of my career, but the much reduced size of the three services makes it a sensible exercise in economy of scale as well. All three services have to compromise to some extent to achieve the commonality in treatment which the Bill now brings. That, too, I accept. But I have some reservations and questions which I shall now touch on, and may take further when your Lordships consider the Bill in Committee.

First, in Clause 8, which is entitled "Desertion", is the meaning of "relevant service" sufficiently clear and usable when service operations may vary even more widely than is the case today? The Army and Air Force Acts of 1955 dwelt simply on active service, which is not mentioned in this Bill. The Naval Discipline Act of 1957 states that a person is guilty of desertion if he leaves or fails to attend at his ship or place of duty with the intention of remaining permanently absent from duty. Are the definitions of "relevant service" in Clause 8 sufficiently explicit for the crime of desertion? For such a serious charge, there must be no ambiguity about what constitutes the crime. Maybe the Minister will be able to reassure me.

Secondly, I was surprised to see how frequently the Attorney-General is mentioned in the Bill and Explanatory Notes and by the number of specified responsibilities. For example, Clause 68(4) is a model of obfuscation of intent. Nevertheless, Clause 324 is a helpful exclusion. The Attorney-General gets but one
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specific mention in the Air Force Act 1955, and that is in relation to his consent to try a civil offence committed outside the United Kingdom which when committed in England is punishable by the law of England. The Bill suggests a much more hands-on role for the Attorney-General than heretofore. Would that be another prop to ward off those who might use the human rights convention and Article 6 to prise disciplinary responsibility out of the hands of the military? I should welcome some explanation from the Minister.

My third concern is that I strongly disagree with Clause 116, which cuts the commanding officer out of the process of considering a serious charge against one of his personnel. All personnel under his command look to him for leadership. To bypass him on a critical matter affecting one of their comrades implies to his personnel that their CO may not be trusted. If he is not trusted on that, his trustworthiness may be undermined in his other areas of responsibility for his personnel. I noted the Minister's assurance that a statutory instrument will be introduced to address this concern. We need to see it soon.

My fourth concern is with Clause 358. Tucked away in paragraph 731 of the Explanatory Notes is the statement:

"There is no requirement that the DSP be a member of HM Forces".

The noble and learned Lord, Lord Mayhew of Twysden, and other noble Lords spoke strongly about this. The three services have had uniformed legal branches for many years. The RAF legal branch was introduced in the 1920s. All three services have been expanding their number of uniformed legal officers—a growth area in stark contrast to the major reduction in overall numbers in the three services. There is a well mapped-out career pattern, and people in those branches would be less than human if they did not aspire to advancement in their chosen service and profession. To suggest that it might not be possible to identify and bring on suitable candidates for the post of DSP is a proper turn-off. Is it realistic to consider head-hunting an outsider for DSP who has had little or no experience of any of the three services? It would be as ridiculous as headhunting for a commander-in-chief. This post must be retained in uniform to give confidence to those being charged by him that he knows the services well.

My fifth concern is the new arrangement for redress of grievance. The Bill introduces a service complaints panel that will have powers under Clause 333 to act on behalf of the Defence Council. I note from the debate in the other place yesterday on Deepcut that there is interest in the independent commissioner who is mentioned in Clause 334. I was pleased to note that Mr Ingram stated, more than once, the importance of upholding the chain of command. For the fighting services, that is essential. The government amendments mentioned by the Minister must not undermine it.

It has been suggested that the service boards have been overloaded and that that has led to delay in complaints being resolved. I do not know what
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comparisons have been made with previous experience to support such an assertion. Service boards' membership has not been reduced that much, but the size of the three services and thus the likely number of complaints to be dealt with most surely has; if not, it indicates a level of dissatisfaction which must have grown alarmingly. My experience was that such matters deserved and had high priority.

Paragraph 663 of the Explanatory Notes points out the importance of the statutory redress system. The case for changing a right that,

"dates back to at least the 19th century"

seems far too weak to me so far. I am also wary of the catch-all provision, Clause 332(2), which could, it appears, give the Secretary of State unbridled power to bar types of complaints.

The Minister and other noble Lords mentioned the problems of delay; that is, a long time between a charge being made and it being heard. There is abundant evidence that the complexities of the law today are a major factor in delays. For the military system, it must make sense to deal expeditiously with charges and even to accept an element of rough justice as a result. Unresolved issues can have only an adverse impact on morale.

I welcome the Bill and commend those who have brought it together, but there are a number of important points that should be further examined and debated.

7.16 pm

Lord Boyce: I thank the Minister for introducing this important Bill, and I welcome his intention to table an amendment to introduce a slip rule. My only ancillary comment on that is to ask him if he will confirm—I am not quite sure whether he did so in his opening speech—that lay members, in other words, service members, are involved in any reconsideration of sentence. Even if there is only a technical error, while that is a trigger to reconsider sentence it is vital that there is service input to the re-sentencing exercise.

By and large, I welcome the Armed Forces Bill. It does much to modernise the single service Acts and to bring them together. However, we should not be seduced by the line that is sometimes paraded that the so-called "joint environment" is a sufficient basis for the Bill. I am glad that the Minister avoided saying that. We need to remind ourselves that the vast majority of our soldiers, sailors and airmen—more than 80 per cent—will serve their entire career in their own single service environments, whether on peacetime or wartime operations. That seems to be lost on a lot of people and on some Members of this House.

I have some regret about the powers that Royal Navy commanding officers will lose as a result of the Bill, but as the Minister implied, that can be lived with, particularly in view of the fact that the powers being taken away have been used only rarely in recent years.

On a more positive note, I welcome one particular aspect of the Bill mentioned by the Minister other noble Lords: the efforts to deal with delay. The totally
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unsatisfactory delays in bringing people to trial that we have seen, such as in recently well publicised cases, are dehumanising, demoralising and bad for operational effectiveness. They must be eliminated.

Moving from the general, I want to concentrate on two particular areas on which the Bill bears: the chain of command and service ethos. I make no apologies for knocking these particular nails out of sight. The maintenance of both of them is essential to the fighting effectiveness of our Armed Forces, who, contrary to some who would aver otherwise, are different from the rest of society. As such, and as the Bill broadly provides, they must have a unique system of military justice separate and distinct from the civilian system. My noble friend Lord Ramsbotham read out the four issues that the Judge Advocate General articulated to support the point, and I shall not repeat them. I am very glad to see those four points laid out in the Short Guide to Sentencing in Courts Martial that was published by the Judge Advocate General at the beginning of this month.

However, having implied that I am broadly content with how the Bill sits with all these points, I have residual concerns. I shall deal first with the chain of command. As I said in this House 11 months ago, the commanding officer, who has total responsibility for command of his ship or unit, must in turn be responsible for, and implement, its discipline. It is impossible to achieve and maintain the necessary level of discipline unless those who are under his or her command are in no doubt that their commanding officer has authority over them. In this context, I worry about the authority that the Bill provides for the service police to approach directly the Service Prosecuting Authority for Schedule 2 offences, in theory with the right to bypass the commanding officer.

I do not hold out much hope of persuading the Minister to change the Bill to satisfy my concerns in this matter. However, providing such an authority could undermine the commanding officer's authority, and I welcome the Minister's explicit reassurance on this matter. Will he ensure that the "prescribed matters" to which Clause 127(3)(e) refers, when defined in the regulations, make it clear—the noble Baroness, Lady Dean, alluded to it—that, in all cases instigated by anyone other than the commanding officer, there is a duty on the service police to notify the commanding officer of any investigation under way, of the progress of that investigation and, if they extend the scope of the investigation and the case is passed to the Director of Service Prosecutions, of the progress of the case? The regulations should explicitly require the Director of Service Prosecutions to be notified of relevant information such as the operational context within which the alleged incident occurred. I recognise that the Minister mentioned this, but I was not quite sure from his introduction that the point would be driven hard in the supporting regulations.

On the single-service ethos, I raise two points relating to courts martial that need to be addressed. First, the Judge Advocate General told the Armed Forces Bill Select Committee that it would be illogical
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for the panel of a court martial to be retained from the single service of the accused and that the default should be a mixed panel with just a senior lay member from the same service as that of the accused. I have real difficulty with this and believe most strongly in the importance of ensuring that the regulations governing the composition of courts martial stipulate that lay members be drawn from the same service as the accused. I am afraid that I have some difficulty with the line taken by the noble Lord, Lord Thomas of Gresford. If co-accused from different services are before the same court, at least one member from each service should be represented in the dock. I think that I was reassured by the Minister saying in his introduction that he supported this view.

My second point arises from the suggestion that the bulk of courts martial in the United Kingdom might take place in one of the three new Army centres—Bulford, Colchester and Catterick. This is short-sighted for two reasons. First, it is extremely important that justice is seen to be done in the local community where the offence occurred—by "local community", I mean service community as well as geographical community. Secondly, the court martial system is designed as a deployable system of justice and should therefore be focused on key areas of service activity, which must include Scotland and the south-west.

The next issue that I want to raise has been well aired this afternoon. It relates to the qualifications of the Director of Service Prosecutions. It is not enough, as the Minister said it would be, for the director to have a sufficient understanding of the services. The Director of Service Prosecutions must have relevant uniformed service background. This is not stated in Clause 358 and an amendment might be appropriate. I would be grateful if the Minister would elucidate what other criteria would be applied in the selection of the DSP. Who will be involved in that selection? What role will the Attorney-General play in it? My noble and gallant friend Lord Vincent voiced similar queries.

I wish to raise one further area of concern which is separate from ethos and the command chain, but which affects both: the readiness of the Armed Forces to implement this Bill in 2008. A significant number of references are made in the Bill to regulations. Although most of them, I expect, will be non-contentious, a number are extremely important; for example, what exactly is to be included in the "prescribed circumstances" in Clause 127(2)(c), which relates to the duty on commanding officers to inform the service police in Clause 114? This is particularly relevant, not least given my and others' concerns about the important role of the commanding officer.

Due to the scale of change which the Armed Forces are being asked to absorb, it is important that all regulations are made sufficiently early to ensure that commanding officers, service police and others can be properly trained in their application. Given the scale of change represented in this Bill, I fear that the 2008 implementation date may already be too challenging, and there are strong arguments for a staged approach in some areas in advance of full
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implementation of the Act to ease the process for commanding officers, service police and disciplinary staff. When will we see these regulations?

As I have said, I greatly support the Bill, but I ask the Minister to take on board the points that I have raised to give confidence to our sailors, soldiers and airmen that the importance of the command chain and service ethos is recognised in full.

7.27 pm

Lord Borrie: My Lords, just over 10 years ago, the European Court of Human Rights ruled that this country's court martial system did not comply with Article 6 of the European Convention on Human Rights, which guarantees anyone charged with a criminal offence the right to a hearing before an impartial tribunal. The matter was soon remedied by the Armed Forces Act 1996, which, among other things, provided for a legally qualified prosecuting authority and made the legally qualified Judge Advocate General a member of the court. That Bill was enacted by a Conservative Government, so it is a little surprising to note that, on Second Reading in another place, the Conservative Member of Parliament for Canterbury referred to this Bill as continuing,

"an ugly trend towards civilianising the military world".—[Official Report, Commons, 12/12/05; col. 1176.]

I follow the noble Lord, Lord Astor of Hever, the Conservative spokesman, and the noble and gallant Lord, Lord Boyce, the previous speaker, in saying that we need a separate system of service law. That view is perhaps common to us all in this House. However, this Bill continues what I will call the desirable trend, through a number of Governments of different political colours, of making the separate system of service law fairer, more independent and, as time goes by, more appropriate for the service men and women of the 21st century. I am sure that the noble Earl, Lord Attlee, will agree with me in tracing that trend to the last year of his grandfather's Government in 1951, when, for the first time, an appeal system was introduced against the findings of courts martial.

I do not think that I have heard it said today that the Bill gives a remarkable universal right to anyone who is charged with a criminal offence to elect trial by court martial instead of being tried summarily by their commanding officer. It also creates a more professional, single-standing court martial composed of three persons, five persons or possibly more, which is to be determined by regulation. I would welcome any information and clarification that my noble friend can give on the criteria for saying that the court martial will be of any particular size.

My interest in the court martial system dates back more than 50 years to the Korean War when, as a newly qualified barrister, I found myself attached to the Directorate of Army Legal Services for Japan and Korea. I must admit—I hope that none of the noble and gallant Lords who have spoken today will disagree too much—that there was what I would gently call an "amateurish" approach to the appointments to
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individual courts martial, which this Bill seeks to change. What I remember observing all those years ago was really not worthy of a modern Army.

Like the noble Lord, Lord Thomas of Gresford, I note the most interesting advice and views given by the present Judge Advocate General, Judge Blackett, to the Constitutional Affairs Select Committee of another place. He was critical of the military members of the court martial having any role in sentencing. Perhaps unusually, I found myself in agreeable accord with the noble Lord, Lord Thomas of Gresford, on Judge Blackett's suggestion that the members of the court, other than the Judge Advocate General, should be treated like a jury in a civil court, which has no role in sentencing. If there are particular military or Ministry of Defence considerations that affect or perhaps ought to affect sentence in their view, these should be put to the Judge Advocate General in open court, who should be left with the sole responsibility of determining sentence.

I wonder whether the Minister would comment on the point also made by the noble Lord, Lord Thomas of Gresford, with very recent experience of courts martial, that whereas a civilian jury has to vote at least 10:2 to get a guilty verdict—that is only after it has been persuaded to try to reach a unanimous verdict—a court martial may privately come to its view by a simple majority of the three, five or seven members.

Of course, there have always been differences of many kinds in the procedure of a court martial compared with a civil court, but the issue may be more important now. This point has not so far been mentioned, but I hope that the noble Lord, Lord Thomas, will agree with me on it, as I have agreed with him, because it logically follows from what he said. The matter of majority has become more important because the Clause 50 will extend the jurisdiction of a court martial to include even the most serious offences committed in the United Kingdom. Those offences will no longer be within the exclusive jurisdiction of the civil courts.

I do not object to this extension of the service jurisdiction, because the facts and so on of the manslaughter or whatever may solely affect military people. I am happy that the normal primacy of the civilian system over offences committed in the UK should give way where the offence has an entirely service-related context. As we know, the noble and learned Lord the Attorney-General has a superintendence—I think that that is the proper word—of the services' prosecuting authority, as well as a supervision over the civilian Crown Prosecution Service, and so is the appropriate person to determine in what kind of court borderline cases should be heard.

Lord Campbell of Alloway: My Lords, I have listened to the noble Lord with great attention. Perhaps I may ask with respect whether he could help the House on a point made by the noble and gallant Lord, Lord Bramall. What is his view on the qualifications of those who sit on a court martial in
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judgment for murder, manslaughter and serious breaches? Will the noble Lord give us the advantage of his opinion?

Lord Borrie: My Lords, I do not think that I can give an answer to the noble Lord, Lord Campbell of Alloway. If he is talking about members of the court martial, I have no doubt that those who are concerned with appointments will ensure that the most experienced people will sit on the court dealing with the more serious charges as opposed to the less serious offences, if I have understood the noble Lord correctly. I am afraid that I shall have to leave it to my noble friend to reply more fully.

The noble Lord, Lord Astor of Hever, referred to the article in the Daily Telegraph on Monday by the noble and learned Lord the Attorney-General. It was excellent that the Daily Telegraph should give him that opportunity because it was one of the papers most critical of the case of the three guardsmen, which has been referred to by many noble Lords. I am glad that the Attorney-General had the opportunity in the Daily Telegraph to specify that, although the court martial of the three guardsmen charged with manslaughter had resulted in an acquittal, the military prosecutor, two senior civilian Queen's Counsel and the Judge Advocate General in the case all took the view that there was—I deliberately use the Attorney-General's phrase—"credible evidence" to justify the prosecution. To add my own words, I fear that too many people have asserted, because there was an acquittal, that there could not have been adequate evidence to start with, which I think was quite wrong.

I believe that there has been very justifiable criticism of the delays in that and other cases. The maxim of Magna Carta that "justice delayed is justice denied" applies across the board to the service system as well as to the civilian system. But of course I also wish to follow my noble and learned friend the Attorney-General in emphasising—I do not think that anyone in this House would disagree—that no soldier is above the law. I accept the Attorney-General's reasoning for saying that, given the credible evidence point, the weight of Queen's Counsel and the military authorities involved, the prosecution was fully justified.

7.38 pm

Lord De Mauley: My Lords, I declare an interest as a recent commanding officer of a Territorial Army regiment. Before going further, perhaps I may say how pleased I am at the recent acquittal of the soldiers of the Irish Guards in their court martial. The fact that two of them have indicated their wish to cease serving as a result of the way in which they have been treated ought to give a strong message to the Government. If we continue in the direction that we are going, more will follow.

It would be logical for me to focus my contribution in this debate on the powers of the commanding officer in the Army and on his centrality to everything that the Army does. It is difficult for anyone who has not served in the Army to understand fully the role of the commanding officer. It is helpful that several of the
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noble and gallant Lords who have spoken so eloquently today have, despite ending their military careers at least five ranks above that of a commanding officer, emphasised the significance of that position.

But let me add my voice to theirs. An army is an organisation which exists to exert the will of its government by the controlled use of force. I emphasise the word "controlled". Those who are the instruments of that army—the individual soldiers—must, of course, be capable of aggression, but, equally, they must be controlled very carefully indeed. This means that they must have a respect for authority quite unlike modern civilians. Inevitably, there is a hierarchical structure, but one person, one appointment, has to be the pivotal point in that hierarchy, and in the British Army that person is the commanding officer.

A regiment or a battalion—I use the words interchangeably—is commanded almost always by a lieutenant colonel. He will have at least 15 to 20 years' experience of commanding soldiers. A regular commanding officer will inevitably have operational experience and he will have been through the Army's rigorous command and staff training procedure.

I said a moment ago that in the British Army it is the commanding officer who is the pivotal point in the hierarchy. This arises for several reasons. The first of these is what we call the regimental system, under which the regiment is central to a soldier's existence—he normally wears its badge throughout his career—so the man or woman at its head is naturally the key person to his career. The second reason is because, operationally, the commanding officer is at the highest position at which it is possible to know each soldier personally, as well as the operational situation he finds himself in, and is the most senior person to maintain responsibility for him beyond just the operation on which they are both currently engaged. A regiment may move from one brigade to another, but a squadron or company—even if detached for a phase of an operation—remains always part of its original regiment and always returns to it.

The regimental system may have arisen for historical reasons, but it has been retained because it works very well indeed. Accordingly, the ethos of command within the Army is designed to foster it and everything flows from it. The powers and centrality of the commanding officer are therefore something which we tamper with at our peril.

Perhaps I may turn now to a couple of specific areas where I see the Bill at risk of detracting from those powers and to which I hope we will return in Committee. Where the Special Investigations Branch of the Royal Military Police is tasked to carry out an investigation of a serious case, such as a murder, rape or a breach of the Official Secrets Act, the Bill proposes that the report of the SIB should go to the Army Prosecuting Authority, whereas currently that report goes to the commanding officer. If this change is made, even should there be a requirement that the commanding officer is kept informed of the progress of the investigation, it still represents a chipping away at his authority. It would be vastly better to avoid this
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tinkering and maintain the status quo. A list of offences means that the commanding officer could be obliged to refer to the APA those of a certain level of seriousness.

We are assured by the Minister that regulations will set out that the commanding officer will be informed but the main channel of communication is to be between the SIB and the APA. So one can envisage a situation where a sergeant investigates a case and reports on it to a captain prosecutor, but there is a risk that the commanding officer, a lieutenant colonel, is missed out of the chain. This must be wrong. The commanding officer must be able to put the operational and command perspective and his experience—which will in almost every case be considerably greater than that of either the investigator or the prosecutor—into the equation.

For the Government to say that the issue of informing the commanding officer will be dealt with in secondary legislation misses the point entirely. I reiterate that the centrality of the commanding officer is crucial. I understand that the drafters have resisted change because they say that the matter is of no consequence. But that is wrong. It is absolutely critical to the position of the commanding officer, whose authority will be undermined if the Bill proceeds as it stands.

We are told that the concern is that if it is on the face of the Bill that the commanding officer is to be informed and the investigator then fails to inform him, that would risk the whole case. But this is a fundamental point—it should risk the case. It would be an injustice to the soldier and, indeed, to the victim of an alleged murder or rape, for the commanding officer not to be informed, because if he had been informed he may have been able—because of his greater experience and specific knowledge of the context of the alleged offence—to have highlighted facts that would otherwise not have come out until much later in the case, thereby avoiding delay in the achievement of justice and unnecessary cost.

It might be argued that currently if a commanding officer receives a report on one of his soldiers in which it appears that that soldier has committed a serious offence, he has a conflict of interest between his duty of care to his soldier and his obligation to enforce justice. However, under the status quo before enactment of the Bill, he has had to bring a balance to the situation. If the Bill is enacted as it stands, the danger is that, being relieved of his responsibility to see justice done impartially, he will feel forced by the fact that his only duty is that of care to the accused soldier and to take the side of that soldier to the detriment of justice.

There is a modern assumption that conflicts of interest are always bad and to be avoided at all costs. But we face conflicts of interests every day of our lives. Any of your Lordships who served in the other place as a constituency MP, merely by accepting a party Whip also accepted the potential for a conflict of interest. Your duty was to vote with your party when required to do so by your Whip; equally your duty was to your constituents. Sometimes—rarely, one hopes—
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those interests could be in conflict. You could not avoid that conflict; you had to accept responsibility for your actions. It is similar in this situation. To remove this part of the commanding officer's responsibility will remove a key element of his authority.

I turn now to another area in the Bill where I see the commanding officer being undermined—that is, in the creation of a military complaints commissioner. The problem, of course, is that young soldiers do not make complaints. The argument of those behind the concept of a complaints commissioner is that the reason young soldiers historically have not complained is because complaints have had to go up the chain of command, and if your complaint is about your corporal—your immediate boss—you naturally fear that he will suppress it and, worse still, make your life hell. But the Army has done something about this. It has, for instance, set up a text line for soldiers to make complaints which go direct to the commanding officer. But no one has complained. Do we suppose that they will complain to a military complaints commissioner either? Of course they will not.

What is needed is to make the chain of command work better, rather than to change the system. The commanding officer is there to be complained to. Soldiers need to be encouraged to direct their complaints to him. The Army agrees that there does need to be transparency, so it has set up an independent reviewer to look at processes and propose improvements. To jump the gun by introducing a new appointment will achieve little, if anything, but it will further undermine the centrality of the commanding officer.

There are other areas in the Bill on which I would like to have commented, particularly on the need for the Director of Service Prosecutions and prosecutors to have military experience and on the process of review, but in view of time constraints, I will leave them on one side today and reserve the right, if I may, to comment in Committee.

7.48 pm

Viscount Slim: My Lords, like other noble Lords, I start by thanking the noble Lord, Lord Drayson, for all the great help and assistance he has given us over this Bill. None of us, I think, pretends to be lawyers and we have different experience. We have considerable military legal experience, but we like the way in which we were briefed and the way in which the Minister listens. It is rather refreshing to find a Minister who listens and I commend him for it.

We also owe a debt of thanks to the other place. I think the committee there did a good job. There were disagreements, as there are in any committee, but what has emerged is pretty good. I think it was not always given the full picture—one seldom gets a full picture—and I also get a little worried when the Minister says that we can perhaps put some of that right by regulation. As has been said, quite a lot more is required on the face of the Bill.
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I shall talk gently to the noble Lords, Lord Thomas and Lord Borrie. I am sorry that I did not meet the noble Lord, Lord Borrie, in Korea, although it is probably just as well that I did not because it would probably not have been to my advantage. In my day—I cannot speak for today—military law was a subject that an officer had to grapple with. Military law was an exam—a pretty stiff one—with a 60 per cent or 70 per cent pass rate that you had to pass to get into a staff college. Military sentencing was part of that. The difference from the 12 men good and true on a jury picked from everywhere—marvellous as those men and women are—is that an officer is legally trained better.

Sitting on a court martial, as most of us in your Lordships' Chamber today have, one was the prosecutor, the defender, a member of the court martial, speaking about someone's character or in mitigation. I have to confess that I served on one for murder. In those days one could hang. That brings you up with quite a jump and you have to be really serious. To those who pooh-pooh the military legal system, as civilian barristers and solicitors sometimes like to do, I would say, "Have a care". We officers have a rough idea. We have had people in front of us for sentencing, so if you do not mind, that is it.

An Attorney-General worth his salt—and all whom I know are—who had no military experience, would certainly want his director of prosecutions, over whom he has superintendence, to have military experience. Otherwise, where will he get military advice? As one of the noble and gallant Lords said, the judgment is often a military judgment. Military advice is needed for fighting wars, operational experience or whatever. Again, I think that that is a dangerous part of the Bill at the moment—to just list a set of legal requirements of what you want in your director of prosecution. I hope that the Minister will take that on board.

The noble and gallant Lord, Lord Inge, mentioned that the reviewing process—the review board—is no longer there. It is no longer there because, when this Bill of human rights emerged, unlike other countries such as France and America, we did not say no. I do not know what it is about this great European market, where Ministers go and kowtow and agree to everything; they sign everything and never say no. Other people do, but Great Britain does not. We are in a pickle because that review board was a critical piece of confidence to those being court-martialled.

The review board was also extremely good training for the senior officers on it who had to make heavy decisions and great considerations. What happens now is that we need to get round that. We have a thing called the slip rule—if I remember, it is on page 31 of the report. We are trying to put something similar in place. All that I would say to the Minister at this stage is that the slip rule is very important. Putting it as politely as I can, people seem to be going round in circles about it and I hope that the Minister will include it or get something firm.

On the next page, what slightly worried me was how we would deal with the civilian staff who work for the MoD—provision of the rules for civilian staff. I am
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rather amazed that the Government have spent so much time civilianising the Army, Navy and Air Force that they have not got their civilians in line. They talk about the rights of the civilian. I would rather talk a bit more about the duty and responsibility of civilians in operational areas. An operational area could be a Royal Air Force base in Cyprus or a logistics base somewhere for the military or the Navy, or a logistics ship—I do not know how many civilians they have on them these days—that does logistics for the Royal Navy. However, that is another thing that has not been looked into and I get the impression that civilians that we employ—whether local or British—are not put in a room and taught. They do not have lectures or seminars about their responsibilities and the rules of their engagement when war breaks out and they are in an operational area.

I am also worried about the rush to say that this is a marvellous thing, although I do think that it is good. I am very pro this Bill, but single service courts martial are necessary. I do not tell the noble Lord, Lord Garden, how to fly his Tornado. He does not tell me how to dig my slit trench and go on a fighting patrol at night. Both of us are far too scared to tell the noble and gallant Lord, Lord Boyce, how to handle his ship and what should happen on board. There are differences and civil lawyers had better understand that.

Finally, I want to say a little about the rules of engagement. I have warned the Minister that I have been hearing some rather funny stories: I do not know whether they are true. I was told about an incident in Iraq where one of our soldiers, groups, platoons, sections or whatever was fired on. We returned fire, but the moment that the chaps turned their backs and ran off, the soldiers were told to stop firing because these chaps were no longer a problem because they were not firing at them any more. I also heard that some fled on to a boat and it motored away and they were no longer a danger to our troops.

I find that very difficult to believe, because all we would succeed in doing is allow someone who had been shooting at you get away so that he could come back and shoot at you and probably kill you tomorrow. I simply cannot bear that sort of pathetic political correctness. I am glad that I am not involved because I would certainly shoot any enemy who had shot at me and then disappeared by running away. We had better be careful in Afghanistan—it is a different kettle of fish there. We will be a laughing stock if that sort of thing is applied.

If one was a wag—and I am just tweaking the Minister's leg a little—one could apply that to the killing of Abu Musab al-Zarqawi the other day. He was killed sitting in a house; he was not slitting anyone's throat at that particular moment. He was not hurting anybody and two five-pound bombs fell on his house. Jolly good, I say. But what logic are you working on in your rules of engagement? This is what I am asking the Minister.

This was a good report. There are 65 recommendations at the end of it from the House of Commons committee—very good ones, I thought. It is
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quite often a habit that when these reports come, they are put on a shelf and forgotten. I would like the Minister to say to us every so often, "We have done point 120, or recommendations 20 to 30 or we are working on half a dozen here and there and something is happening". I wish the noble Lord, Lord Ramsbotham, was here because there was a case in the prison service on which I was on the periphery, some years ago, where there were 93 points on a report and within 18 months, only two of them had been actioned. I am just jogging the Minister, who works hard, for nothing and I commend him greatly. But we are entitled to know how this progresses.

I look forward to the Committee and I welcome this Bill. When I first came to your Lordships' House, 35 years ago, I was told, "For a debate like this, 13 minutes and then sit down".

8.02 pm

Lord Garden: My Lords, this has been an excellent debate. We have ranged from the grand strategic down to the detailed implications of particular sub-sub-clauses of the Bill. I was grateful for and enjoyed the setting of the context for all of this made by the noble Lord, Lord Judd. The need for a fair, transparent military justice system which does not undermine the military leadership is an important part of the way we have to operate today and we need to see the Bill in that context.

The experience of all the speakers has been extraordinary. We have had experts such as my noble friend Lord Thomas of Gresford and the noble Lord, Lord Campbell of Alloway, who know the court-martial procedures from the lawyers' perspective. We have had all the noble and gallant Lords who have had to dispense military justice at every level of command. We have had the noble Lord, Lord De Mauley, with his experience as a commanding officer and we have even had the noble Earl, Lord Attlee, as the recipient of military justice, giving us his experiences.

I trust that the Minister is pleased by the general positive reaction that there has been from around the House. It is a complex Bill but it has had a generally good reception from all quarters today, and rightly so. The noble Lord, Lord Borrie, was right to tell us that it was part of a development of military justice. You can look back over the past and see how we have moved towards a fairer and more transparent system as time goes on; this is a part of that and I welcomed his speech.

The Bill is a significant milestone and moves towards bringing the practices of the three branches of the armed services together. While the Royal Navy, the Army and the RAF have got different histories, traditions and cultures, they do work seamlessly together on joint operations. However, I find myself disagreeing slightly with the noble and gallant Lord, Lord Boyce, about how often we find ourselves operating together. I remember 20 years ago as the commanding officer of a support helicopter base that I had both RAF and Army personnel serving together under me. Yet if a soldier and an airman ended up in
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some alleged offence which they were involved in together, it was impossible to deal with them under the same system, the acute—

Lord Boyce: My Lords, I did not say that soldiers and airmen do not operate together in joint environments such as the one the noble Lord mentioned. I said that the vast majority of sailors will never see a soldier in their lives in the single environments in which they operate

Lord Garden: My Lords, I am grateful to the noble and gallant Lord, but I still remain in slight disagreement with him. What happens when there are increasingly such situations is that justice is administered by two different commanding officers and it is not seen as fair to anybody involved in it or to those serving in the unit. I welcome the move towards a single system of military justice.

Many noble Lords have said that the Minister, the Ministry of Defence and the Bill team have been absolutely punctilious in keeping us aware of how the Bill has been developing over time. It is a substantial and complex Bill and I thank the Minister for involving us. I should just correct the assertion made by the noble Lord, Lord Ramsbotham, of 34 stars. We make it 35 from these Benches. They are in cahoots with the Conservative Front Bench and their researchers. I have to tell the Minister that three stars that sit on the Lib Dem Benches will be doing it independently. That may be a good thing or a bad thing.

We are going to have a lot of detailed work to do in Committee. An Armed Forces Bill presents an opportunity to consider some other aspects of modern military service. I do not remind your Lordships and many have already said it—we expect an enormous amount from the dedicated men and women who serve their country in the Armed Forces. We also expect them to operate under a much more stringent legal framework than those in civilian employment. That is understandable as the state authorises military personnel to use lethal force, and we must be certain that we have a disciplined body to deploy such force. At the same time, the state also owes a duty of care to its military given the sacrifices that they make, both in their freedoms and perhaps even their lives. We have talked about the sorts of ways we should approach that, in terms of reducing delays of justice and putting time limits within the Bill. That is something that we will certainly want to look at in Committee.

The Army's formulation of the military covenant expresses very well the approach we need to have in this, in that soldiers—and I would extend this to other services—are expected to make personal sacrifices in the service of the nation. But the other half of that bargain is that British military personnel must always be able to expect fair treatment, to be valued and respected as individuals and they and their families will be sustained and rewarded by commensurate terms and conditions of service.

It is therefore against both sides of the covenant that we must judge the Bill. We have talked mainly about the effect on the chain of command and the
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commanding officer; we also need to be thinking in Committee about the individuals who are subject to this law. In that respect, the report by Nicholas Blake into Deepcut is a remarkably useful document in one aspect—that is the training of young servicemen. But it does read across into other parts of the Bill. It was unfortunate that your Lordships did not have a chance yesterday as they did in another place, to debate the Statement that was made about the Ministry of Defence's response. That would have cleared some of the issues that we will have to talk about in Committee.

The principles that I will be looking for in the way that the Bill goes forward is whether we are putting the right conditions for young men and women in the forces that are appropriate to the 21st century, rather than just an amalgamation of practices, some of which had their genesis in Victorian times.

I turn now to the question of how the three Service Discipline Acts are to be merged as we have had some discussion on that. The Army and RAF elements are fairly closely aligned at the moment. We have heard why historically the Royal Navy gave its commanders greater powers and I add my congratulations to the Bill team for managing to get a good measure of agreement so that the three services can operate with a common list of offences. Those at Part 2 of Schedule 1, which require permission from the commanding officer are a good way to introduce the flexibility that we have talked about to meet different operational circumstances.

We will need to consider in Committee maximum punishments and the detail of the offences which my noble friend Lord Thomas of Gresford addressed in his opening remarks. The noble Lord, Lord Judd, dealt in particular with Clause 8 on desertion, as did the noble Baroness, Lady Dean. That will need to be looked at, mainly because the punishment now is so disproportionate to the way people think that very few people are charged with desertion. It is also a question of making the Bill useful so that the various levels have practical utility. At the same time, the noble and gallant Lord, Lord Craig, raised important issues about the definition of active service in respect of Clause 8.

The main discussion, not unexpectedly, has been about the role of the commanding officer and whether the Bill diminishes it in some way. There is particular concern among a number of noble Lords about the inability of the CO to dismiss a charge for a Schedule 2 offence. I am not inclined to believe that the Bill diminishes the standing of the CO; it seems appropriate that if he cannot handle a particular offence, he ought not to be able to dismiss it.

We have also discussed the new arrangement for having a director of service prosecutions instead of the individual service prosecuting authority. Again, in the context of the Bill that seems a reasonable way forward, but we will want to have deep discussions in Committee about how to define the experience level that is needed for the holder of this post. The arguments made by the Chiefs of the General Staff to the Select Committee on the Bill about the need for
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military experience supported by all noble and gallant Lords and noble Lords throughout the House seemed totally persuasive. We will need to look at how we can define that job specification to get the right person there.

With regard to what the Bill does for the rights of individual service personnel, I shall want to look at a number of issues in Committee. On the key area of complaints and redress to which a number of noble Lords have referred, we have ample evidence—as the Minister confirmed in his opening remarks—that the system is flawed and not terribly well understood. Those who believe they have cause for complaint worry that complaining will have an adverse effect on their career, and their complaints are often not taken forward promptly by the chain of command. It is not new: Sir Michael Betts, in 1995, as well as Blake, recommended the need for an independent complaints system. My noble friend Lord Roper raised the issue, as did the noble Lord, Lord De Mauley. Such an independent commission, according to the Blake proposals, would be able to examine complaints of any nature from any member of the Armed Forces. Other nations, such as the United States and Australia, manage to operate a perfectly satisfactory military system with parallel independent systems.

As my noble friend Lord Thomas of Gresford said, the Bill is very timid in this area. It offers the prospect of an independent member of the service complaint panel if the Secretary of State decides it is appropriate. Despite this morning's headlines in the newspapers about military ombudsmen, the Government response to Blake, issued yesterday, offers only a minor modification. It is not enough; we will need to know how we are to meet recommendation 26 of the Deepcut review. Perhaps the Minister could say whether he has had a reaction yet from Mr Blake about whether he feels that his that recommendation has been met.

We will need to look at how to get a commissioner of military complaints who can look more closely at unresolved complaints concerning a wider field than just harassment and bullying. We will seek to amend the Bill to meet this need and will consider the government amendments.

There are many other aspects we will need to probe in Committee. The provisions relating to civilians has been mentioned by some; it is an area requiring consistent treatment. We have talked about the size of courts-martial panels; their service composition will be a matter for debate. I have less of a problem than many noble and gallant Lords and even my noble friend Lord Roper at the thought of having mixed services. If we are moving to a unified service discipline system, mixed courts-martial panels will have some advantages in terms of consistency of approach. We will doubtless discuss that in Committee.

A great deal of detail is left to regulation. The noble and gallant Lord, Lord Craig, the noble Baroness, Lady Dean, and my noble friend Lord Roper drew attention to the need for us to have some idea of what will be in the regulations. I have a suspicion that the Government have not yet thought that through, and
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we may have problems in getting enough of the information about the regulations in Committee. We need to see the context of the Bill, and someone in the MoD will have to burn the midnight oil for us to be able to do that.

Finally, I take this opportunity to say a few words about implementation. The noble and gallant Lord, Lord Boyce, spoke about the scale of the change. I know that the Ministry of Defence has thought about this, but it will nevertheless be a daunting task. Rather like the noble Viscount, Lord Slim, I built up my knowledge of Air Force law over many years—initial training, promotion exams, serving on courts martial and then various levels of command. That is the easy way, but it takes decades to do. Implementation in a couple of years will mean an extraordinarily steep learning curve for a large number of people, and a large training requirement for those who have to operate the new system. They must not make mistakes with it; we do not want that to happen because we have rushed this. I believe that a cautious approach should be taken. If it proves, as it may well do, more difficult than planned, sufficient time must be allowed.

8.16 pm

Lord Kingsland: My Lords, I know that the Minister will agree with me when I say how lucky we are as a nation to have a House of Parliament which boasts no fewer than six former Chiefs of the General Staff to contribute to a debate such as this. I hope that he will also agree that the signals that we have received from them have been remarkably similar in both content and tone.

Unlike most noble and gallant Lords and noble Lords, I have only just become involved in the Bill. Therefore, I have not been able to observe at first hand what all other noble Lords have observed: that is, how helpful the Minister has been in the run-up to this debate. I find the hearsay evidence very powerful, however, and on that basis, I, too, thank the noble Lord for such co-operation.

I was particularly interested in a paragraph that the Minister read in the early phases of his contribution this afternoon. It was about both investigations and tribunals. The noble Lord said, "Any decision to prosecute for a serious offence should be taken by an independent prosecutor with an understanding of the service context". I pause there to ask the Minister—he need only nod or otherwise—whether, in saying that, he was referring to the future Director of Service Prosecutions. He nods. I am most grateful to him. The noble Lord then went on to say, "and any trial of such an offence should be before an impartial tribunal, comprising serving members of the Armed Forces with an independent judge". There, I take it, as the Minister, in effect, says so in terms, that he is indicating the courts martial tribunal.

Many noble and noble and gallant Lords have emphasised how important it is for the services to have a distinct system of military justice because of the special factors that inform combat circumstances. I conclude from the Minister's statement that, in
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future, all operations issues that give rise to possible legal proceedings will be investigated solely by the military police and the director of service prosecutions; and if it is decided to prosecute, that prosecution will take place solely in front of a court martial. That seems to be the ineluctable logic of what the Minister has said.

I received the statement with great pleasure. It seems to relieve my noble friend Lord Campbell of Alloway of his task of promoting his amendment in Committee because his amendment refers to circumstances that appear now never likely, or, indeed, possible, to arise again: where the Attorney-General requires or asks for cases to be referred from the military prosecutor to the civilian prosecutor or from a military tribunal to a domestic tribunal. It appears that the Government have accepted the logic of the argument, which has been pursued from all parts of the House in a number of debates in the past 12 months, that it is wholly inappropriate, indeed, constitutionally improper, for a proceeding that begins in the military context to be shifted to the civilian context.

I was also struck by what the Minister said about delay. He said that, at worst, delay undermines operational effectiveness by damaging morale and unit cohesion. We must be rigorous in addressing it. We all wholly endorse that statement by the Minister. I recall particularly the words of the noble and gallant Lord, Lord Craig of Radley, when he said that unresolved issues have an adverse impact on morale. That is not just the morale of the individual serviceman but the morale of the unit in which the serviceman serves; because, to draw the kernel of the speech that my noble friend Lord De Mauley, made to your Lordships' House, if other members of that unit see that the soldier is being hung out to dry they will wonder what will happen to them if, by any chance, they are in a similar set of circumstances. If the situation is not addressed, we will see the crumbling of great regiments.

I was a little concerned that the Minister did not go on to consider the problem of delay in terms. One of the most serious aspects of delay is the conduct of military investigations. There is nothing in the Bill that seems to help. Why is there such delay in the investigations by the military police; is it that there are not enough of them? Is it some defect in their training? Is it that they lack the quality that the civilian police have? Or is it that they lack the authority within the army structure? Or is it a mixture of all of those? It seems to me that we will never get to grips with the problem of delay until we get to grips with the way in which the investigations are conducted. I wholly agree once more with the noble and gallant Lord, Lord Craig of Radley, that there must be an end to this sooner rather than later; because the Armed Services have to get on with the job that they are employed to do, which is defending the security of this country.

There is also another aspect of delay, which came out forcibly in the Trooper Williams case. During the long delays, in intolerable circumstances, that Trooper
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Williams suffered, he apparently received little support from the Ministry of Defence. I derive that information from a note written by General Sir Anthony Walker, a man under whom I had the honour to serve as a reserve officer when he commanded the Third Armoured Division in Germany. I have no reason to believe that the following statement that he has made in this note is anything other than absolutely true:

"At an early stage it became apparent that Trooper Williams was going to find no champion within the MoD and indeed there seemed to be a desire among senior officers to distance themselves from the case. There was a qualitative difference between the reactions to this case within the MoD and the reactions within the Metropolitan Police to the Stanley case".

This is the difficulty with taking a case out of the regimental context. Every solider knows that if a matter is within the power of his commanding officer, his commanding officer will look after him. But once the issue goes beyond the regiment, who is going to look after him? If it is not the Ministry of Defence, no one is going to look after him. It is absolutely crucial—and I hope that the Minister will address this point in his winding-up speech—that soldiers who are going to be prosecuted in front of the court martial in circumstances where the commanding officer appears to be being sidelined by the legislation are looked after properly by the Ministry of Defence during the whole of the proceedings. That is not only what he would expect but what all his regimental colleagues would expect. It goes to the heart of all the concerns that have been expressed by noble Lords and noble and gallant Lords about the way in which the commanding officer has been treated in the legislation.

We feel strongly that rules of engagement should take statutory form. The rules of engagement in effect are likely to determine whether a soldier has committed an offence. They therefore define the criminal law; they define the scope of the crime, the boundary between what one can and cannot do. The Human Rights Act, which has been much talked about today, makes reference to Article 7 of the human rights convention, which requires that, if someone is going to be prosecuted for a crime, the nature of that crime must be clear to them before they undertake the activity that leads to its breach. If I am right about the rules of engagement defining the scope of the crime, Article 7 of the convention on human rights requires that they are part of the criminal law. It must follow, therefore, that the rules of engagement must take statutory form. We will certainly be tabling such an amendment in Committee.

However, there is another ingredient in combat issues: the surrounding circumstances. One of the most important issues in surrounding circumstances is the orders that are given by both the commanding officer and the junior officers to the various men under their command. In specific situations, on a daily or even hourly basis, fresh orders are issued down the line. Those orders will have a bearing on the way in which the rules of engagement are applied in specific circumstances. If a soldier is going to be investigated, and perhaps prosecuted, for an operational offence, it is vital that the investigation authorities and the
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prosecuting authorities know everything that there is to know about the way in which the rules of engagement were interpreted by the commanders in that unit in those particular circumstances. If I am right about that, it would be deeply unfair to the soldiers who are under investigation not to have, freely available to their case, as accurate an account as possible about the way in which these orders were given. Who else but the commanding officer can provide that evidence—and his subordinate officers? So I entirely endorse everything that all noble and gallant Lords have said about the importance of engaging the commanding officer, intimately, in the whole process of investigation by the prosecution.

The noble and gallant Lord, Lord Boyce, went into this matter in more detail than any other noble and gallant Lord, but all noble and gallant Lords dealt with it impressively. The noble and gallant Lord, Lord Boyce, referred, in terms, to the operational context in which the offence occurred to underline how important the engagement of the commanding officer is in the whole prosecutorial process. I prefer the solution offered by my noble friend Lord De Mauley that the commanding officer should be fundamentally responsible for all prosecutions but that it should be recognised that those of a certain seriousness would be passed up the line by him. That is the best solution. But whichever solution we chose, it is vital that the commanding officer's role is factored in, I repeat, intimately, at every stage.

The noble Viscount, Lord Slim, said that if he were an Attorney-General he would want his DSP to have military experience. If I may respectfully say so, of the many ways in which the noble and gallant Lords and noble Lords have formulated their support for the DSP having military experience, the way in which the noble Viscount expressed it was the most penetrating. There are very few politicians nowadays in another place and sadly, even in your Lordships' House, apart from those who have spoken today, who have the kind of military experience that is required if a mature decision about prosecution is to be made. So, a fortiori, if the supervisor has no military experience, it is very important that the senior member of the prosecuting authority has. That is another amendment that we shall table in Committee.

The noble Lord, Lord Ramsbotham, is not it in his place, but I endorse two matters that he raised, among a number of others. First, he said that the Army needs to reinstate the position of director of Army publicity. It seems ludicrous to get rid of the role of military officers in this sphere and to fill it with civilians. It would certainly not cost more if the role were played by the military and it would also give those who serve more confidence; and, to use the words of the noble Lord, it would be the best way in which to protect and project the image of the Armed Forces. I also respectfully agree with his observation, which I think is shared by most noble and gallant Lords and noble Lords, that apart from the independent judge, the members of the court martial tribunal for army matters should all be from the Army.
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The noble Baroness, Lady Dean, made a very important point about secondary legislation when she said that we do not know enough about what will be in it. She was right in saying that we would like to see either in Committee or on Report drafts of the more important regulations, which will enable us to inform ourselves about the more important aspects of matters to which at the moment we are totally blind.

One issue that I had not thought about before today's debate, but which we should think about in Committee, concerns the composition of tribunals. I refer to the composition not in terms of from which branch of the services members come but of the number of members of the tribunal and who selects them. As I understand it at the moment, they are selected by the court administrative officer. The noble Lord, Lord Thomas of Gresford, will be particularly helpful when reflecting on this issue in Committee because he has great experience in this kind of litigation.

In particular, I believe that we should think about majority decisions. Is it right, given the fact that in a jury trial, if the majority is less than 10 to two, there is no conviction, that in a court martial a conviction can be obtained by four to three, three to two or five to four? That does not sound right to me. I should have thought that one should have a larger majority to meet the requirements of the human rights convention, to which the noble Lord, Lord Borrie, referred on so many occasions. It is appropriate that we should address the issue. The question of majorities in a jury trial goes to the root of what a jury trial is about. Should it not go to the root of court martial trials as well? I do not have any preconceptions about this, but I feel that this is an issue that your Lordships should confront. I should have thought that a majority of four to three or five to four was far too narrow; that you needed a much more convincing majority to convict in front of a military tribunal. That is a matter to which very few of us have given much thought, and we should think about it between now and Committee.

Having said all this, I congratulate the Minister on having delivered the Bill in the condition that he has delivered it to your Lordships' House. This immense document has obviously involved a huge amount of work and I am in absolutely no doubt that it has been informed by the Minister's sincerity.

8.37 pm

Lord Drayson: My Lords, we have had an excellent debate with contributions of the very highest quality. I have listened carefully to them and to all that has been said this afternoon. I will further reflect deeply on the contributions.

I am very grateful for the very constructive tone of the debate, reflecting as I think it does the intention of the whole House to create the best Bill we can, to provide the clarity and the fairness that have been described and that our Armed Forces deserve. I have heard this afternoon a number of interesting new ideas for improvement, which we will consider carefully. I will now attempt at high speed, if I may, to respond
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to the many points that have been made. I am grateful to my excellent Bill team for the support that they have given me in this.

Before I go into the detail, however, I should like to respond immediately to the points made by the noble Lord, Lord Kingsland, and in particular by the noble Lord, Lord De Mauley, about the absolutely central role of the commanding officer and the importance of ensuring that nothing we do in the Bill undermines the chain of command. That is central to what the team working on the Bill seeks to achieve. The noble Lord, Lord Kingsland, spoke of the commanding officer being "intimately involved" in this process—a useful phrase—and of the importance of the operational context being brought to bear throughout the process. We believe that we are bringing forward a Bill that significantly strengthens that process in a number of regards.

The noble Lord, Lord Thomas of Gresford, said that he felt that the independent complaints commissioner had insufficient powers. I do not agree. The commissioner would have statutory powers to receive a complaint or allegation from a service person. He would receive a report on the outcome. He reports and has direct access to Ministers and will publish an annual report on the outcome. Those are not insignificant powers. The noble Lord, Lord Garden, asked whether we have had a response from Nicholas Blake QC to our government response to his excellent review. We have, and he published it on his website last night. In it he particularly welcomes the decision to create a service complaints commissioner with powers of access to the Minister directly to raise issues of concern as well as to report annually, as I said. I think that he commented quite positively on the progress that the Government made in their response to his review.

The noble Lord, Lord Astor of Hever, asked why the commissioner is not embodied within the military system and why it is in the criminal justice Bill. I believe that the noble Lord has drawn together two separate points, the first on the inspection of the military justice system—the police and prosecution and so on. Where we propose to make arrangements with the new combined inspectorate proposed under the Police and Justice Bill, we will agree terms for those inspections with the new inspectorate and that will provide professional external assurance of our institutions. Secondly, on oversight of the military complaints system, we propose a service complaints commissioner who will be independent of the chain of command but report to defence Ministers. He will therefore be part of the military complaints system and have a statutory role to play within it.

The noble Lord, Lord Thomas of Gresford, raised the issue of courts martial not being involved in the prosecution of civilian offences. I do not agree with him on this. A criminal offence can have significant disciplinary implications. For example, a soldier who steals from a colleague is as much a disciplinary matter as a criminal matter. Moreover, if a serviceman commits a criminal offence overseas and cannot be
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tried by military court, he is at risk of prosecution in a local criminal justice system and that could be very objectionable to us. Or the offender could escape justice entirely, which would not be acceptable to us or to the Armed Forces.

Many noble Lords, and a number of noble and gallant Lords, have raised significant concerns about delays. That was the central part of my opening statement. We share that concern and have taken considerable trouble to consider how we can make improvements. I note the interesting suggestion made by the noble Lord, Lord Astor, on a time limit. I look forward to seeing the terms of the amendment. I make one point that I think we should reflect on. Experience shows us that, when there is pressure to bring a prosecution quickly, that can make it more likely that an unfair prosecution will result. We absolutely agree, however, that this system must be made as efficient as possible, and we have made important changes in the Bill to do that. I have specifically mentioned two changes, the first of which is the requirement for commanding officers to promptly bring in the service police in serious cases. Secondly and more importantly, the Bill allows the service police in serious cases to go directly to the prosecuting authority for a decision on the charge. At the moment, the police must go first to the commanding officer with a charge; then the commanding officer refers the case to the higher authority for further consideration; then it refers the case on. So we believe that this will provide a faster process, which is important.

A number of noble Lords have commented on the structure of courts martial and whether persons should be tried by members of their own service. I note in particular the deep experience of noble and gallant Lords on this matter. We have heard from a number of them—the noble and gallant Lord, Lord Boyce, in particular. I commented on this in my opening statement, but I am happy to give further reassurance and repeat that we expect that, in the main, service personnel will be tried by courts comprising members of their own service. The noble and gallant Lord, Lord Bramall, asked whether, where it was clear that a shooting was lawful, the Bill requires a police investigation. I hope that the Bill is clear on this point. In a case where a shooting is clearly lawful, there will be no requirement for a police investigation. That requirement will arise if allegations or circumstances would indicate to a reasonable person that one of the serious offences listed in the Bill may have been committed.

A central area of the debate this afternoon has been the role of the Director of Service Prosecutions. The noble and learned Lord, Lord Mayhew, raised this, and my noble friend Lady Dean reflected on the concerns that she had. A number of noble and gallant Lords also raised it, and I know that there is real concern about this area. Some noble Lords have asked for the Bill to require that the person appointed to be the DSP should have service experience, be a serving officer or have uniformed service experience. As many noble Lords are aware, one difficulty in putting this in the Bill is in defining what we mean by "service
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experience". Nevertheless, my right honourable friend the Secretary of State, in commenting on this, has expressed our view of the deep importance of service experience in this area. Overarching that is the need to make sure that we get absolutely the best person for the job. We believe that the qualifications of candidates would be a much better way of narrowing down what sort of experience we are talking about. We feel that this would be achieved most effectively through the selection process rather than in primary legislation. The Select Committee in the other place recognised that it would be difficult to put this in the Bill.

To reflect a little longer on the question of whether the individual should have uniformed service experience, while we believe that a long and distinguished uniformed and legal career might provide an ideal Director of Service Prosecutions, we would not want a short career in uniform, perhaps at a junior level and with no operational experience, to give a candidate an advantage over someone better qualified in other respects, which could prevent us from getting the best man for the job. The noble and learned Lord, Lord Mayhew, raised the point relating to legal officers—

Lord Campbell of Alloway: My Lords, will the noble Lord explain the parameters? Are we in a position rather like the one in which the Prime Minister can say that anyone is to be Lord Chancellor, unless we elect our own? There are no parameters. Is that what we are dealing with here? Or are there to be some parameters?

Lord Drayson: My Lords, I am grateful to the noble Lord. There absolutely are parameters. Our difficulty is in finding the best way to define this and to give comfort to people that a service context will be provided to the prosecuting authority. We will listen to the points that have been made this afternoon, because this is a difficult area. All our Army Legal Services officers have operational experience. All Army Legal Services officers undergo at least three months' attachment with a "teeth arms" unit, and many serve with those units on operations in Afghanistan and Iraq. Serving lawyers may indeed fill the post of the Director of Service Prosecutions; they are not excluded. We want simply to ensure that the director is the best person for the job. That could be, for example, a recently retired officer, or it could be a barrister who has served in the Territorial Army.

The noble Lord, Lord Thomas of Gresford, raised further points relating to the prosecution of civilians under the Bill—in particular, the Martin case. Service jurisdiction operates over two main groups of civilians outside the United Kingdom: first, over members of service families; and, secondly, over civil servants and contractors working with the services, especially on operations. That is an important aspect of the way in which we work in the current environment. Having a service jurisdiction does two things: first, it ensures that crimes committed by such civilians, whether against service personnel or local people, are dealt with; and, secondly, it ensures that they are dealt with by an ECHR-compliant system. We must bear in mind
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the fact that such systems are not always available in countries where our forces are operating. At the same time, the Bill facilitates the wider use abroad of the service civilian court, which has powers equivalent to those of magistrates' courts in England and Wales.

The noble Lord, Lord Roper, and the noble and gallant Lord, Lord Boyce, spoke of the challenge posed by the implementation timetable of the Bill. That is a good point, of which we are very much aware. We aim to implement the Bill by the end of 2008; it is a large undertaking and we want to avoid the two extremes of trickling change over two years and making a single change so great that it is unmanageable. We are looking carefully at planning the implementation process and the matter is at the front and centre of our concerns.

The noble and gallant Lord, Lord Vincent, asked who assesses the performance of the prosecuting authority. The service prosecuting authorities are independent of the chain of command and MoD Ministers. Regarding the new prosecuting authority, we announced yesterday that we will look to the extension of the role of the inspectorate that is under consideration in the Police and Justice Bill before your Lordships' House.

My noble friend Lady Dean asked how commanding officers will be kept in the loop. The regulations under the Bill will require the service police to keep the commanding officer informed at specific times. That already happens. They will inform the commanding officer when a case is passed to the Director of Service Prosecutions, but, crucially, the commanding officer will be able to pass any information that he or she thinks is relevant to the offence, including any operational context, to the director before any charge is considered. This is a new and important improvement.

Further, what other proposals are there with regard to notifying commanding officers of the conduct of investigations in ensuring that the commanding officer can provide that relevant information? We need to recognise that, if there are allegations that a soldier has acted outside the law, the service police and prosecuting authorities will seek to take into account the operational context in which the incident occurred. The commanding officer will be central to that; he needs to be an intimate part of the process.

The noble Lord, Lord Astor of Hever, said that he believed that some of our service personnel are afraid to open fire, and he referred to a survey conducted among the 7th Armoured Brigade. That is not a view that is shared by operational commanders and the Land Warfare Centre, which is responsible for rules of engagement training. I can do no better than to quote Brigadier Lorimer, who ordered the successful rescue of two soldiers held in an Iraqi police station. He said that his men knew that they could,

"take a life to save a life".

The shooting investigation policy now in place in Iraq allows commanding officers to decide when their soldiers should be investigated by service police and
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has their strong support. The provisions in the Bill are consistent with that. Perhaps the most important point is that no prosecutions have arisen from firefights.

The noble Viscount, Lord Slim, very effectively described his concerns regarding the rules of engagement. I assure him that mission-specific training for personnel deployed on operations takes full account of their mission and the threat that they face. That is kept under review to ensure that the personnel have the confidence to use legal force when required. I would be happy to provide a separate briefing to those Members of the House who would be interested in spending more time getting to understand the modern process for rules of engagement.

The noble Lord, Lord Campbell of Alloway, raised the issues of the maintenance of discipline being the priority in sentencing and of sentencing taking into account operational stress factors. A number of matters would be relevant to sentencing and these have been set out in Clause 236, which includes the maintenance of discipline, as well as the punishment of offenders, the protection of the public etc. The military context generally, including operational stresses, will be a matter that can be raised in mitigation. Where relevant, they will be taken into account by courts.

The concern about the role of commanding officers and, in detail, the position of the commanding officer when police investigate Schedule 2 and prescribed offences has been raised by a number of noble Lords. We will provide in the regulations that the police must inform the commanding officer of the investigations—in a moment, I will come on to the process of sharing with the House regulations in draft. These regulations will also provide that the commanding officer may provide information to the police and the prosecuting authority before any decision is taken on whether to charge. It is important that we have an opportunity for the House to review these regulations as part of the progress of the Bill. We recognise the central importance of that.

My noble friend Lord Dubs raised the difficult issue of pardons for First World War soldiers. I remember this being raised by my noble friend as an oral Question and I appreciate the strong feeling in the House on this matter, which I have communicated to the department and to my right honourable friend the Secretary of State. In the light of the case of Private Harry Farr and the important issues that arise from this area of policy, my right honourable friend the Secretary of State is considering the subject as a matter of priority. He has asked officials to make the history of past policy decisions available to him. There is clearly a link between our response to the Irish Government's report and the outcome of the case of Private Farr. Until the outcome of the case is known, and has been considered and discussed with the Irish Government, no final response will be made to the Irish Government on their report. However, my right honourable friend has asked me to inform the House that he is considering all the options and is aware of the strong feelings of the House on this matter.
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The noble and gallant Lord, Lord Inge, the noble Viscount, Lord Slim, and the noble and gallant Lord, Lord Boyce, raised the issue of the abolition of review, and particularly the point that the Army were not happy about that. I hope that I dealt with this in my opening speech. I know that some in the services regret the abolition of the review, but we must recognise that the courts martial are compliant courts. We do not need and should not have non-judicial interference in their decisions. The review involves no hearing and no opportunity for the victim—who could be a serviceman or servicewoman—to be heard.

Lord Boyce: My Lords, I apologise for interrupting. My reference was to the slip rule, the investigation of the slip rule and the resentencing, rather than to the review of the court martial.

Lord Drayson: My Lords, I am grateful to the noble and gallant Lord. We have accepted that we should not abolish the review without providing for a slip rule, enabling us to respond to sentencing errors. This approach has the full support of the Judge Advocate General. The noble and gallant Lord asked whether service court members would be involved. The answer is that they will be.

The noble and gallant Lord also referred to the location of court centres. He felt that they should not be restricted to three new centres, and I have considerable sympathy with his concern. The military criminal justice system must be transportable so as to operate near where the service is required. That must include locations where there are significant concentrations of service personnel—for example, at naval bases. There is a strong service case, in particular, for Scotland and the south-west.

My noble friend Lord Borrie and the noble Lord, Lord Thomas of Gresford, said that courts martial should not be decided by a simple majority. This is a difficult area, in which we have considered a number of views. We certainly agree with the view of the Judge Advocate General that, if possible, courts martial should decide cases unanimously. Directions are already given by judge advocates to that effect, but if the possibility of a decision by a simple majority is precluded, it will mean that in such cases, whether the majority is for acquittal or conviction, there will have to be a new trial. This was an important consideration in our conclusions. The approach should be to seek unanimity, although a decision can be made by simple majority. I might add that magistrates' courts, Scottish juries and a number of European civilian and military jurisdictions work on the basis of a simple majority.

A number of noble Lords raised concerns about desertion. There may be some confusion about two changes that we are making to this offence. First, we are reducing the circumstances in which a person can be guilty of the offence of desertion, and, secondly, we are reducing the maximum punishment for desertion in certain circumstances. My noble friend Lady Dean asked why, under the Bill, we are keeping the life sentence for desertion. We need to recognise that if a serviceman or woman were to desert from their unit in
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an operational situation and, through that person's absence, the unit lost an essential skill, that could lead to the unit being far more vulnerable, which, in turn, could lead to a significant loss of life. In those extreme circumstances, a court should have an unfettered discretion to apply the required sentence. Indeed, we believe that a maximum sentence in those circumstances acts as an effective deterrent to prevent such people from deserting their post.

My noble friend Lord Judd raised a concern about a possible increase in the number of deserters in Iraq. I am not aware of the figures to which he referred. The information that I have suggests that there have been no reports of soldiers on operational tour in Iraq or Afghanistan going absent without leave from January 2003 to May 2006. However, that excludes individuals who may have gone absent without leave part-way through their tour. I have recently written to the noble Lord, Lord Garden, stating that in the Royal Navy no one has been charged with the offence of desertion since 1998. Figures for the Royal Air Force show that one person was charged with the offence in 2002 and a further person in 2005. In the Army, the numbers of personnel charged with the offence were: in 2001, three; in 2002, six; in 2003, three; in 2004; three; and, in 2005, five.

We believe that the definition of "desertion" is very clear. It is closely based on the definition of "active service" in the existing legislation. But the existing definition includes a number of complexities, such as the ability of local commanders to declare that active service exists.

The noble and gallant Lord, Lord Boyce, asked what role the Attorney-General would play in the appointment of the Director of Service Prosecutions. My honourable friend, the then Under-Secretary of State in another place, said during the Select Committee that,

"it is inconceivable that the Secretary of State might recommend an appointment",

to Her Majesty,

"without consulting the Attorney-General".

I do not believe that I can add anything to that.

My noble friend Lord Borrie asked what the prescribed circumstances in Clause 114 were, where the offence must be notified to the service police and referred direct to the Director of Service Prosecutions. Examples are systematic bullying and an apparently minor offence that appears to have been committed as part of a pattern of domestic violence.

The noble Viscount, Lord Slim, commented on the report of the Select Committee. We welcomed the report of the Select Committee and the support that it gives to the Bill in a large number of areas. There is absolutely no question of the report being consigned to a shelf, and I shall be happy to respond to the individual points as we continue our deliberations on the Bill and to provide an update on the implementation of those points as we progress with this project.
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As I said earlier, this is a good Bill. Above all, it will bring greater fairness and clarity and, I believe, operational effectiveness to our Armed Forces. I am greatly encouraged by the welcome that it has had today in your Lordships' House. I look forward to the next stage, and to the exchanges that Committee stage will undoubtedly bring. I beg to move.

On Question, Bill read a second time, and committed to a Committee of the Whole House