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Mr. Spellar: Could the hon. Gentleman tell us why his noble Friend did not divide the House?

Mr. Key: Yes, absolutely--because of the traditions of another place. There are still some traditions in the other place, despite the Labour Government's attempt to change them. Unlike the Labour party, the Conservative party does not interfere in the workings of the other place. That is why the decision was taken by the Front Bench in the other place.

Mr. Michael Colvin (Romsey): Even if the chiefs of the services will have to make do with the Bill if it is enacted, does my hon. Friend agree that the opportunity to consolidate the three single service discipline Acts has been missed?

Mr. Key: My hon. Friend is right. He will recall the many years spent on the Select Committee trying to move that process forward. I shall deal with that in detail later.

A substantial part of the Armed Forces Bill 1996 was taken up with amendments to the Army, Navy and Air Force discipline Acts in order to make them compliant with the European convention. In taking evidence from the Ministry of Defence on 27 February 1996, the Armed Forces Bill Committee interrogated a distinguished list, including civil servants, the judge advocate general, the

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chief naval judge advocate, the deputy director of legal services, RAF, and others, including the legal adviser to the Ministry of Defence.

The hon. Member for Walsall, South, now Chairman of the Select Committee on Defence, asked the legal adviser:

"Are you satisfied that these proposed reforms will go far enough to satisfy the European Court of Human Rights particularly given the views expressed by the European Commission on Human Rights?"

He went on to ask:

"Can you give me something rather more than a belief or perception? Upon which evidence is your perception based?"

The legal adviser replied:

"None of the criticisms made in the Commission's Report made any suggestion that the military system of justice should be dismantled so I do not think we have got any fears on that score. We do believe it is appropriate to have a military tribunal and we have had no indication that there is anything wrong with that."

What has happened between 1996 and now? Not a lot of preparation for this rushed Bill, for sure. If the Government are to make fundamental changes to the system of military discipline--no one seriously believes that this is just a little tidying-up matter--Parliament might expect that a great deal of preparation had been undertaken, and that there could be no doubt about the facts of the matters that would be reformed. Some hope!

Over recent weeks, as the Minister suggested, I have asked a number of straightforward factual questions. I am still waiting for some of the answers--I make no complaint about that. However, many of the answers give us no grounds to suspect that Ministers have the facts at their fingertips. If it is proposed to change the system in favour of the client, I should have thought it not unreasonable that basic information about the client base should be available.

It was truly astonishing that the Minister for Defence Procurement told my noble Friend Lord Attlee that, over the past six years, no records have been kept that show how many soldiers elected trial by court martial. I am relieved to hear that work is in hand to assure that better records will be kept in future.

Back to the Trenchard lines: morale arises from conviction in what one is doing and confidence in one's leaders. Conviction and confidence are held together with the glue of discipline. Where is the real conviction on the part of the Government that the Bill is necessary?

It has been illuminating to hear the Minister today, and some weeks ago the Minister for Defence Procurement in another place, setting out the reasons why the Bill is being introduced, but not a single example has been given of service men and women's rights being abused through the current system of military discipline. In truth, the Bill has little to do with the fairness of military discipline. The system works. The argument that the Bill protects against abuses is weak.

We are considering a Bill that will not improve our military discipline system. We contend that it will only make matters worse. It is, perhaps, a little ironic that, at the same time as the Government are introducing legislation to gold-plate our armed forces discipline system against a possible action in the European Court of Human Rights, they are seeking to curb a defendant's automatic right to trial by jury in the Criminal Justice (Modes of Trial) Bill.

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We hold the view that serious questions remain about the need for the Bill. During the passage of the Human Rights Bill in February 1998, assurances were given by the Lord Chancellor about its provisions applying to the armed forces. He said that

"the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces. I have given an indication about willingness to consider designating military courts as the appropriate forum for the consideration of complaints of convention grounds by Armed Forces personnel."--[Official Report, House of Lords, 5 February 1998; Vol. 585, c. 768.]

It was, as the hon. Member for Greenock and Inverclyde (Dr. Godman) said, in 1951 that the United Kingdom acceded to the European convention. The noble Lord Renton told the other place on 29 November 1999:

"I am one of the few people still living who attended the European Council when the European Convention on Human Rights was being considered. Indeed, I was closeted with M. Rolin, the Belgian lawyer, who represented Dr Mossadek at The Hague in order to agree with him--and eventually it was agreed by all concerned--the powers of the European Court of Human Rights.


I feel obliged to mention that at that time--it was just a few years after the war--I do not believe that members of any party in this country gave a moment's thought to the effect of the convention on military discipline. But now we must consider it. I believe that the Government must review the convention and our acceptance of it in order to ensure that military discipline is maintained."--[Official Report, House of Lords, 29 November 1999; Vol. 607, c. 691.]

Last week, in answer to a question from my hon. Friend the Member for Reigate (Mr. Blunt), the Minister for the Armed Forces told the Defence Committee that it was "a theoretical possibility" that the Government might withdraw from the convention and immediately re-apply, asking for a derogation to protect our vital defence interests. When the Minister winds up the debate, will he tell us whether at any time the Government have considered that course of action?

Mr. Fabricant: Does my hon. Friend agree that at no time has any hon. Member accused the French of not being communautaire? Have not the French always supported the European convention on human rights, yet do they not have a derogation for the application of military discipline? Should we not be equally communautaire?

Mr. Key: I fear that, in 1951, we missed a trick but, as I was only six at the time, I am not prepared to accept responsibility. My hon. Friend is right. The French do not have such problems, because they have a derogation. Member states that have joined the convention in recent years have decided to opt out and to have that derogation in place.

There are others, as distinguished as Lord Renton, who believe that the Bill is not necessary. The noble Lord Alloway, a senior lawyer, told the other place on 18 January:

"This convention does not require any signatory state to enact legislation, such as proposed by this Bill, which would inhibit the maintenance of good order and discipline in its armed forces."

He went on to state his opinion that

"assuredly the convention does not require amendment to the service discipline Acts or the setting up of a summary appeal court, as proposed by the Bill. It is wholly implicit that convention rights and obligations imposed on civilians should suffer substantial erosion and limitation. The extent of such limitation has not, as yet, been examined by the Commission or the Court. The Court would not strike down the service discipline acts as such."--[Official Report, House of Lords, 18 January 2000; Vol. 608, c. 981.]

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The central problem with the Bill is that in it, the Government are bending over backwards to comply with the provisions of the European convention on human rights. They are doing the maximum necessary to comply, and they seem hell bent on doing so.

We do not consider that the current system is non-compliant with the convention. Indeed, it was argued convincingly in the other place that amendments made to the discipline system as a result of the Armed Forces Act 1996 made our courts martial convention compliant. The changes were made in response to a ruling by the European Court of Human Rights that a court martial convened and presided over by a higher military authority was not "independent and impartial".

In the other place, Lord Bramall, a former chief of the defence staff, reasoned that if

"a soldier can have free and direct access to a European Convention on Human Rights compliant court--that is, a court martial, with its own right of appeal--the right of appeal against the commanding officer's summary sentence to a special court would seem to be superfluous."--[Official Report, House of Lords, 16 December 1999; Vol. 608, c. 366.]

We are minded to agree with that view.

Irrespective of whether the Government consider the Bill to be absolutely necessary, we believe that it has fundamental flaws. Our main concern is that it undermines the integrity of those who command. It is an invitation to the barrack-room lawyer. The disciplinary system that we have at present clearly demonstrates that unit morale is supported and bolstered by the application of quick and firm justice.

The procedures set out in the Bill remove part of the control of a commanding officer, and the timing leads to delays in getting a problem dealt with and finished. It is also damaging to put in place a disciplinary process which allows soldiers to complain about their commanding officers, thereby reducing their authority.

No one can doubt that the upholding of a commanding officer's authority and trust is vital to the efficiency and morale of a unit. That is especially so in active and combat operations. The Bill, a so-called technical measure, strikes at the heart of operational effectiveness. Our fears were echoed by yesterday's Defence Committee report.

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