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3.53 pm

Mr. Peter Viggers (Gosport): The Government do not really care about defence, and their Defence Ministers have no experience in the armed forces. The result is this ill-considered, expensive and damaging Bill. I shall justify that accusation. There was a long delay before the Government introduced the strategic defence review, and there was a lack of urgency in its implementation. A number of important items identified in that review, such as the need to introduce heavy-lift capacity, were defined as high priority, but nothing has happened with them.

There is a shortfall in Army personnel of 5.3 per cent. and there is a crisis in the Defence Medical Services. For the first time, defence expenditure has fallen below 3 per cent. of gross domestic product, and the empty Labour Benches show how much the Government care about defence.

The Bill is untimely. The correct timing would have been to introduce it next year, in the Select Committee's quinquennial review of the Armed Forces Bills procedure. People outside the House may not know how that procedure works. Many years ago, it was proposed that a Bill that was essentially uncontroversial should go through a Select Committee stage. That meant that, after Second Reading, instead of going into the confrontational arena of a Standing Committee, it would go upstairs to a

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Select Committee. The members of that Select Committee--usually 11 of them--would consider the Bill and would have powers to take evidence

That has been the procedure since 1961, during which time there have been eight Armed Forces Bills. I chaired the Select Committee twice, in 1986 and 1996. We took our responsibilities very seriously: the Select Committee on the Armed Forces Bill in 1996, for example, met 11 times. We were anxious that the changes being made to military discipline should be correct and acceptable to the armed forces and to those civilians--such as those serving with the armed forces in Germany--who in some circumstances were affected by military law. We took evidence in this country and in Germany, and we heard from civilian representatives and from people, such as probation officers, who might be affected by the implementation of the Bill.

Such scrutiny is the best way to deal with Bills relating to armed forces discipline. It is a mistake for the Government to introduce this Bill now, in this manner, rather than waiting for 2001. It would have been so easy to delay its introduction for 11 months, as the Select Committee to consider the next Armed Forces Bill will be appointed in January 2001. That Committee would then have been able to scrutinise this Bill in as much detail as the 1996 Committee scrutinised the Armed Forces Act 1996.

Mr. Hancock: Does not the hon. Gentleman appreciate that the inevitable consequence of the delay that he has recommended to the House would be that more challenges to our military discipline would be mounted in the European courts? That would cause more expense to the Ministry of Defence and greater problems throughout the armed forces.

Mr. Viggers: That is a fair question. I shall deal with it when I come to the second paragraph of my notes, whose heading uses the phrase "ill-considered" in connection with the Bill.

Baroness Symons said:

"The main provisions of the Human Rights Act will come into force in October 2000. The proposals in this Bill are intended to address concerns about compliance with the European Convention on Human Rights before that date."--[Official Report, House of Lords, 29 November 1999; Vol. 607, c. 668.]

I have looked into the Human Rights Act 1998 to discover why it was decided to implement its provisions from 2 October 2000. I am convinced that the Ministers who took the 1998 Act through Parliament did not realise that it would have implications for the armed forces. They did not understand that the deadline that they gave the 1998 Act would require the Ministry of Defence to introduce provisions for changes in armed forces discipline before that date.

That was a major blunder. The Human Rights Act 1998 should not have specified that date; the deadline should have been left open, or delayed. Alternatively, provision should have been made to cover the armed forces. We are here today because the Home Office--I presume that was the Department responsible--failed to realise the implications for the Ministry of Defence of setting the 2 October 2000 deadline.

Other hon. Members have mentioned the matter of consolidation. The Select Committee considering the Armed Forces Act 1996 made much of that question, and

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I think it appropriate to cover that point also in connection with this Bill. The 1996 special report stated at paragraph 36 on page xiv:

"It was undertaken by a senior draftsman from the Parliamentary Counsel Office on secondment to the Law Commission . . . This draftsman returned to the Parliamentary Counsel Office in summer 1993 when the consolidation was at 'an advanced stage'. Since then, he has not had the time needed to complete the work."

Clearly that is not a party political point because that was during a Conservative Administration. We concluded, at paragraph 37:

"This is unacceptable. To allow the two years' work by a highly skilled Parliamentary draftsman to be abandoned is a disturbing indictment of resource management in the Law Commission . . . We recommend that the Government ensures that the necessary resources and Parliamentary time are made available to allow for the consolidation of Service law before the passage of the next Armed Forces Bill."

That will be in 2001.

I will quote one section of the Bill at random, to show the mess without consolidation. Schedule 1(4)(1) states:

"Section 209(3) of each of the 1955 Acts (application of Act to civilians) is amended as follows.


(2) After paragraph (c) there is to be inserted--


'(ca) section 75J(2)(b) above shall have effect with the omission of the words from the beginning to "of this Act";


(cb) section 75K(6) above shall have effect with the omission of paragraph (a));'".

It is a jungle: for those who practise law to have referential law of that kind is extremely difficult. Earlier, it was said that commanding officers have been issued with the law drawn into one booklet, so that they will not have to make cross-references. We cannot allow the Bill to pass without another heartfelt plea or demand by right hon. and hon. Members in all parts of the House that armed forces disciplinary legislation be consolidated.

It has been said that the Bill is necessary because of various cases before the European Court of Human Rights, the leading case being Hood. The House may recall that Mr. Hood went absent without leave for the fourth time and maintained before the European Court that he did not, under article 6.1 of the convention, have

"a fair public trial before an independent impartial tribunal."

I am baffled by that claim. The word "impartial" does not appear in article 5--under which Mr. Hood brought his case. That article deals with liberty and security, whereas article 6 deals with the right to a fair trial. How can it conceivably be held that Mr. Hood did not have the right to a fair trial under article 5, when that deals not with trials but with custody and detention and does not contain the word "impartial"? That is beyond my comprehension and I cannot understand why that legal advice was given to Ministers.

Opening the debate, the Minister said that it was necessary to change the law and he was satisfied that the law would become compatible with the European convention. He did not use the word "compliant". Almost anything can be compatible. Is it fully compliant? We are changing the law to make it compatible when we should be sufficiently confident to say that it is compliant. In that sense, the legislation is ill-considered.

The measure will also be expensive. We enter a strange world, reminiscent of government accounting--full of smoke and mirrors. We were told that the cost would be £6.5 million a year. The Select Committee thought it

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curious that cost would remain consistent even though the original estimate of a modest number of appeals had greatly increased. The unconvincing reply from the Ministry of Defence spokesman was that the estimate had not increased because the original figure assumed that 50 additional Royal Military Police investigators would be needed to provide appropriate evidence to appeal courts. The revised view, said the spokesman, was that appeals would be more likely against sentences rather than the findings in summary proceedings, so significant additional investigative work would not be necessary.

That explanation is wholly and completely unpersuasive. Perhaps the Minister can provide a breakdown of that £6.5 million estimate and say how much is accounted for by salaries. The average industrial wage is £20,000 a year, and the accepted business criterion is that one doubles or trebles the wage to take account of the employee's full cost, including his accommodation and pension. The 80 individuals required to implement the measure would take up £3.2 million, assuming they receive only the average industrial wage. The former Attorney-General, my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell), is in his place and will know, as we all do, that it is most unusual to find even a modest lawyer such as myself on the average industrial wage. I suspect that many of those recruits will be paid several times that average wage. How will that budget be found within the figure of £6.5 million, with £1.75 million start-up costs? The Government may have been on a trip that I have seen before, during the two years when I was a Parliamentary Private Secretary at the Treasury--where the Government put forward an estimate that they think will be acceptable rather than one that completely and accurately reflects the costs.

My fourth charge was that the Bill would be damaging. Reference was made to undermining the morale and standing of commanding officers, who will be able to hold a person in custody for 12 hours--extending to 24 hours--after which a review by a judicial officer will be necessary. Only a judicial officer will allow an individual to be held in custody for longer.

I am reminded of a true story that illustrates the case. On their way by road between hospitals, two surgeons, a consultant anaesthetist and a senior nurse came across a road accident. They stopped their car and went to see if they could help the driver, who was seriously injured. While they were contemplating what to do, another driver stopped his car, rushed over and shouted, "Stand back! I am a blood donor."

My right hon. Friend the Member for Fareham (Sir P. Lloyd) asked about circumstances that might cause difficulties for the armed forces. Let us take the example of the fight at Mount Tumbledown, just above Port Stanley at the extreme western end of the Falklands--inaccessible except by yomping and, later, helicopter. One might have found it necessary to take a judicial officer to that location to see someone in custody, or to return the individual because it would not have been possible for the commanding officer to keep him in custody any longer.

British forces are deployed in places where the distance between the front and back lines are great. Travel may be inconvenient, with bad roads. In those circumstances, a commanding officer might find it quite difficult to have to ship a man from the front line, bring up a judicial

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officer, or implement video conferencing. Imagine the situation--"Stand back, we must bring up the judicial officer. We need space on the next helicopter up to the front for the judicial officer and the video conferencing kit."

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