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Mr. Keetch: I am curious about the view taken by the hon. Gentleman and other Conservative Members that British soldiers are so terrible that they will, in the midst of battle--even at Port Stanley or Tumbledown--commit a crime for which they must be detained or sent back. It is total nonsense. Of how many occasions on which that has happened at the height of battle is the hon. Gentleman aware? He and his colleagues seem to be suggesting that it is a regular event. I think not.
Mr. Viggers: Of course it is not a regular occurrence. I have not yet paid tribute to our armed forces, who are absolutely superb. Having served for seven years in the Royal Air Force and the Army, I pay tribute to the standards of discipline and self-discipline that the forces maintain.
However, we are legislating to cover every eventuality. That is why the Bill should have been scrutinised by the Select Committee rather than coming before us. We have the Defence Committee's extremely valuable report, but the Committee met for only a day, not having the chance to go into the field to find out what circumstances might arise in which it would be inconvenient for the armed forces to apply the Bill's provisions. I urge further scrutiny.
Sir Nicholas Lyell (North-East Bedfordshire): My hon. Friend is making a serious point. These cases are extremely rare, and I agree with all that he has said about the armed forces, but my hon. Friend's point is not a fanciful one.
Mr. Viggers: Indeed it is not. I do not know how much service experience the hon. Member for Hereford (Mr. Keetch) has had, but the armed forces may face periods of intense strain. An out-of-context example is the number of individuals who deserted or committed crimes at the front during the first world war. Even individuals of the very highest quality, such as those in our own armed forces, may, when under extreme pressure of battle, behave as they would not normally behave. A further example is the case of Lance-Sergeant Findlay, a man of exemplary character who ran amok. It was necessary to change the law in 1996 to cover that situation. The example of Mount Tumbledown was not completely fanciful. Such a case could happen.
Mr. Hancock: May I draw the hon. Gentleman's attention to the evidence given to the Defence Committee by a highly decorated soldier, Brigadier Andrew Ritchie, who was wearing more medal ribbons than many senior service personnel whom we have questioned before? The brigadier had first-hand experience of commanding in the field, and, when questioned at length, he made it clear that he could not conceive of a situation in which a commanding officer would be required to act in the way that the hon. Gentleman suggests. The right hon. and learned Member
for North-East Bedfordshire (Sir N. Lyell) suggests that the examples given are not fanciful, but the evidence to the Defence Committee made it clear that no senior service men could come up with a scenario to match the case that the hon. Gentleman is making.
Mr. Viggers: That is reassuring. However, I cannot prove a negative. The procedure that the Government are adopting means that hon. Members will not be able to cross-examine senior personnel in the Select Committee. As a member of the Defence Committee, the hon. Gentleman has had his opportunity to do so, albeit at only one sitting, but those of us who do not serve on the Select Committee have not had that opportunity. The Government's precipitate introduction of the Bill is what leaves me unreassured.
Mr. Gerald Howarth: It would be a brave brigadier who gainsaid the Minister sitting alongside him in a Select Committee.
Mr. Viggers: Indeed. One of the great advantages held by Select Committees is their development of expertise over years of talking to individual service men and their families. The hon. Member for Walsall, South (Mr. George), who chairs the Defence Committee, is a notable exponent of that. The Committee gains extended knowledge of how matters work on the ground. As a representative of a garrison town, I know that if senior officers--colonels, majors or admirals--go round asking, "Is everything all right?", the men will say yes. They are tasked to do so. The programme "Yes, Minister" was correctly titled because Ministers receive that answer when they ask if all is well. Our duty to probe legislation requires us to go further.
The new right to appeal is also damaging. An individual may be heard by his commanding officer or go to court martial. If he does not like his CO's decision, he has a right of appeal. The hon. Member for Greenock and Inverclyde (Dr. Godman), who is not in his place, made the valid point that, in his experience, most service men accept the judgment of their commanding officer. They stand up straight, are told their punishment, say, "Yes, sir," salute, walk out, and that is that. They accept that that is how the system works.
However, and I do not believe that this serious point is fanciful, my experience in constituency surgeries and from talking to members of the armed forces suggests that a service man may accept summary jurisdiction and justice, but his wife may think it unfair. He will go home and tell her that he was fined £100, and she will ask why that should be, feeling that it is terrible and that he should appeal. There will be marital disharmony, and the man will look strange if he does not appeal. If he does, it will cost more money.
The Parliamentary Under-Secretary of State for Defence (Dr. Lewis Moonie) indicated dissent.
Mr. Viggers: The Minister's body language suggests that he does not really agree with me. However, I put it to him seriously that if the right of appeal is available and if the man does not want to appeal, the wife will quite often wish to do so.
Mr. Blunt: My hon. Friend's point touches on one of the many weaknesses of the Bill. He has mentioned the
wives of young soldiers, sailors and airmen, but he should remember that unmarried personnel may live in block accommodation or on a ship. There will be 14 days in which the barrack-room lawyers who live with them may ask whether they intend to accept the commanding officer's decision and lie down and take it when there is a chance to appeal. There will be a vast increase in the number of appeals--far more than Ministers expect--because of the influence of colleagues on soldiers, sailors and airmen during those 14 days.
Mr. Viggers: I am grateful to my hon. Friend, whose service experience enables him to make wise judgments on these matters. I am sure that he is absolutely right.
One might seek a derogation from the European convention on human rights under article 15, but it is specified that derogation may be sought only
- "in time of war or other public emergency threatening the life of the nation."
- "a public emergency threatening the life of the nation".
For all those reasons, the Bill is untimely, ill-considered, expensive and damaging. I shall vote against it with relish.
4.21 pm
Mr. Crispin Blunt (Reigate): Perhaps it is appropriate that I should follow my hon. Friend the Member for Gosport (Mr. Viggers) on the day that the Order Paper includes a motion that discharges me from the Defence Committee and appoints him in my place.
The Chairman of the Committee, the hon. Member for Walsall, South (Mr. George), has already spoken in the debate; we enjoyed a rumbustious relationship. One line of questioning that he cut off ruthlessly when we were under pressure was what would happen, under the measure, when one tried to put soldiers, sailors and airmen in custody. Many lines of questioning on that matter were robustly interrupted by the hon. Gentleman. I hope that a more pleasant fate awaits me on the Select Committee on the Environment, Transport and Regional Affairs, whither I am bound.
I declare an interest--indeed, experience--I was a regular soldier for 12 years. I served as assistant prosecuting officer and assistant defending officer on district and general courts martial. I administered the summary justice process as an officer commanding--squadron leader of A squadron, 13th/18th Hussars. I was also on the receiving end of the procedure as an officer cadet at Sandhurst. I have some experience to contribute to the debate.
We need to set the Bill in the context of the debate between individual rights and the rights of state and society. Historically, both the state and the Church have asked, encouraged or forced individuals to subordinate and surrender their individual rights for the greater good of the organisation. An example is offered by Government Members. The Government Benches are hardly packed at the moment; new Labour Members appear to have surrendered their individual interest to the corporate good. We do not hear a squeak of the individual views or beliefs of Labour Members who support the Government, if those views and beliefs dissent from the corporate, new Labour view. Individual rights have been surrendered to the rights of the party in government.
The armed services offer the ultimate example of individuals who surrender their rights to the organisation. In 1994, Captain Harry Shapland was killed in an American air force helicopter which was shot down by an American fixed-wing aircraft; it was a tragic accident. His commanding officer said:
- "Every soldier signs a blank cheque on his life and he never knows when it will be cashed."
- "the ability of a Commanding Officer to maintain good order and military discipline is fundamental to his ability to command his troops. Maintaining the system of summary discipline is our vital ground."
The problem was made clear by the Minister. The whole summary justice system is not compliant with the European Court of Human Rights and with the European convention on human rights. Article 6 of the convention makes that clear. It states:
- "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
We cannot take out of context the examination of individual rights by the European Court and the development of jurisprudence and the notion of individual rights in the minds of soldiers, sailors and airmen and in the society from which they come. In 1951, no one expected the armed forces to be affected by the UK's accession to the European convention.
By 1974, the debate had moved on. When France acceded to the convention, it was clear that its armed forces would be affected, so France put down a reservation when its National Assembly ratified the treaty accession. France is not alone. Several other countries have made a reservation about their armed forces--including some of our NATO allies, such as Spain and the Czech Republic.
By 1998, with the incorporation of the convention in UK law, there had been developments in jurisprudence--especially through the Findlay and Hood cases. The convention produced a fundamental effect on human rights--developed under case law, as my hon. Friend the Member for Gosport pointed out. Judges with little military experience have wholly undermined the summary justice system. They have made explicit that it does not comply with the convention that is being operated by the European Court.
If we do not examine what is happening generally before we consider the Bill, we will not be able to understand how damaging it is. The measure must be set into that context as well as in the context of the Armed Forces Act 1996. That was the means by which the armed forces tried to address the judgment in the Findlay case and to make the summary justice system compliant.
We need now to pay careful attention to what has happened to the court martial system since the 1996 Act came into force in 1997. A fairly limited change was made to the rights of defendants to elect for trial by court martial but, since 1997, the number of cases going to court martial appears to have doubled. However, as the Minister for the Armed Forces pointed out, that number is related to cases in which the findings appear on a individual's regimental conduct sheet. That suggests that commanding officers are becoming less willing to impose serious punishments through the summary justice system. They are more likely to push a case up the line to a court martial. That is a sign that their confidence in using the summary justice system has been undermined.
Of the main elements of the Bill, the first is the change to the custody rules. As far as I can determine, it is the only element of the Bill that is driven by the latest judgment of the European convention on human rights in the Hood case. The Select Committee had a lengthy discussion about the circumstances in which custody rules would be impossible to enforce, and it must be admitted that trying to identify such circumstances is difficult. It is unlikely that we shall ever find ourselves in them. However, it is not good enough to base the argument on that point. The armed forces should expect this place to be able to introduce legislation that will cover all the eventualities that they face.
The Ministry of Defence will face extreme difficulty in drafting a satisfactory statutory instrument--it has yet to be published even in draft form--about the use of video links, which will be a key element in the procedure. None the less, the provision for custody forms the strongest part of the Government's case for introducing the Bill. If it were limited only to the rules of custody and procedure, it would be tiresome, expensive and bureaucratic, but it would arguably not make too much difference to the system of custody before and after charge that we have today. If a Conservative Government were reconsidering
the matter, they would probably come to the same judgments that they came to when they introduced the 1996 Act to comply with the European convention on human rights.The other elements of the Bill are more damaging. I do not understand--I hope that the Minister will explain this when he winds up or at a later stage--what it was in the Hood judgment that has forced the change to trial by court martial. Why do we have to change the point at which a defendant in the Army or the Royal Air Force can elect for court martial, so that he can elect for trial by court martial at a beginning of a case rather than after a commanding officer has deemed that the charge against him is proven? My right hon. Friend the Member for Fareham (Sir P. Lloyd) said that there does not seem to be any reason for the change, and I found his arguments convincing.
The Bill's provisions for the summary appeal court are thoroughly damaging. After a commanding officer has reached his finding, there will be a 14-day period in which a defendant can decide to appeal. In that time, all sorts of forces--his mates, his wife and his wider family--may get to work on him. They may tell him that he has been unfairly treated, should not take his medicine and should explore the appeal process. What would he have to lose, particularly if the commanding officer had decided to hand down the maximum sentence? Any commanding officer who hands down a maximum sentence will find that it is appealed against, because the defendant will have absolutely nothing to lose.
The burden of the Bill on the internal administration of the armed forces becomes really apparent in those circumstances. One of the justifications for the extra 55 royal military policemen that the Government have proposed is that they will improve the quality of evidence collection for commanding officers' orders, so that their decisions will be less open to appeal.
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