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Mr. Deputy Speaker (Mr. Michael J. Martin): Order. The hon. Gentleman is giving us a detailed individual case, but the debate is on the Second Reading of a Bill. He may wish to come to the point. How does what he is saying relate to the Bill? I am aware that he is discussing the case of a man who was court martialled, but to go into such detail is, to put it no stronger, not usual.
Dr. Lewis: Thank you, Mr. Deputy Speaker.
My problem is that the Bill seems, on the face of it, to be a lawyer's measure, but its application to the armed forces will translate in reality into cases such as the one to which I have referred. Those who oppose the increasing intrusion of the European convention on human rights must show how something done with the best of intentions--the Bill--may translate into individual cases with fatal results. I shall bear your strictures in mind, Mr. Deputy Speaker, but I have almost finished the detail. I promise not to overburden the House.
- "The Assistant Judge Advocate General, who was asked to review the decision of the Court-Martial stated that although the sum of money involved was small (a total of £16)"--
- "there was not only a breach of trust involved, but also an abuse of a position of authority. He considered that the sentence reflected a proper balance between the mitigating and aggravating factors. He therefore declined to uphold Henry's petition against the sentence."
My hon. Friend the Member for Aldershot (Mr. Howarth) talked of the right of the services to be different. I entirely agree with him, and with my hon. Friend the Member for Ruislip-Northwood (Mr. Wilkinson), who pointed out the iniquities of the compensation culture that is creeping into society and transferring into the administration of discipline in the armed forces. When Labour Members ask why people in the armed forces should be denied the protection that others have at law in civil society, the answer must be that we must be concerned with how litigious a person is. There is no absolute principle; it is a question of how far litigiousness is allowed in our dealings.
We all know that what happens in America tends to be reflected in Britain a few months or years later. We have all heard of the case of the lady in America who drove into a takeaway McDonalds, purchased a mug of boiling coffee, placed it between her thighs as she drove away, scalded herself, and successfully sued the company for having served a beverage that was dangerously hot. Most people would say that that was something she was entitled to do at law, but that the law was an ass in upholding her claim.
We all know that it is possible to apply the law literally or with common sense; there are no absolutes. The danger of bringing the ECHR directly to bear on individual cases is that it will give perverse results. If I had time to go into the matter more fully, it would be seen that the application of the ECHR in 1996 led to a top-heavy procedure. If the soldier, whose sad circumstances I related, had received summary punishment from his CO--or had he chosen to do so rather than opting for a court martial--his case might have had a happier outcome. Although it seemed that the court martial presented a greater opportunity--an extra right--it turned out to be a fatal disadvantage.
One of the reasons for my absence from part of the debate was because I was discussing defence developments in the Royal Navy with a recently retired senior officer. I asked him for his views on the case that I have just outlined. He said that in the armed forces one had to allow for different levels of trial and punishment, according to different circumstances--war or peace, deployment on operations or in society back home. He pointed out that a court martial was the last thing that one should have considered in such an offence--or rather 14 offences of £1.14 multiplied.
I appeal to the Government not to regard the measure as purely technical. It is a mistake to discount tried and tested methods of discipline. They may seem to be less just than the whole panoply of law--national law and international law--but they can do more good, be more merciful and, in the long run, be more just for service men. They can be better than encouraging service men to go down the route of litigation and appeals--an endless process that can sometimes result in a fatal and unnecessary outcome.
5.57 pm
Sir Nicholas Lyell (North-East Bedfordshire): The Government introduced the Bill to satisfy their obligation to comply with the European convention on human rights. The debate has been interesting; I apologise for not having been able to attend for the opening speeches.
Among the points that struck me when I considered the Bill were the operational effects. They have caused real concern to senior officers, who have expressed their concern in another place. I have read the speeches of Lord Bramall, Lord Craig and Lord Carver. To some extent, their concerns have been satisfied, but not fully. They are right to point that out, as we are right to express our strong concern about the measure.
I want to analyse the causes of that concern. There are flaws in the 1951 ECHR. Britain played an enormous part in the introduction of that convention. It was drawn up to try to prevent the recurrence of the atrocities of the second world war. If we consider it as a broad-brushed document, produced with that objective, it is a fine piece of drafting. However, since countries have given right of individual petition--we gave that right as long ago as 1966--and as the court has been given increasingly wide powers, it has exercised those powers in an ever more detailed way, like any public body to which powers are given.
The Government's duty is to comply with the convention. When we were in government, we had a treaty obligation to comply with it and we always fulfilled that obligation. This Government have decided to incorporate the convention into our own law and that makes the obligation no greater, but it makes it more immediate. It makes the opportunity to take advantage of the convention's provisions in our domestic courts much more available.
I declare an interest as a barrister who, among other things, advises on human rights matters. We know that chambers have been set up simply to concentrate on such matters. One of them is headed by no less a person than the Prime Minister's wife--I congratulate her on that. That is not wrong. They are matters for our law, and it is right that people should be able to obtain advice.
The Bill focuses our attention on the flaws in the convention and on this country's failure to adopt ourselves to its requirements. I wish to focus on two points. The first is the derogation and the other is the reservation, such as that expressed by France and Spain when they adopted the convention.
Mr. Gerald Bermingham (St. Helens, South): I also declare an interest along the same lines as the right hon. and learned Gentleman. Does he not agree that the interesting thing about European Court decisions is that they do not set precedent and that they involve the passage of time? We see that particularly in article 6, which is on the right to a fair trial. Therefore, there is not the danger that he and other Conservatives Members have suggested.
Sir Nicholas Lyell: I hope that the hon. Gentleman will forgive me but, if he listens for a moment, he will spot the genuine dangers that need to be addressed.
The primary reason for the Bill is to deal with the case of Hood v. UK. Hood was a young soldier who regrettably went repeatedly absent without leave. Eventually, he was arrested and, because it was the commanding officer's duty at that time to remand him in custody, he was remanded in custody. That fact was not a problem. When the matter came before the High Court under a habeas corpus application, it properly confirmed that point. The man had repeatedly absconded and the only way to bring him to trial was to lock him up. Otherwise, he would have absconded again. He was locked up and the European Court on Human Rights did not object to that aspect of the proceedings. It objected to the fact that he was originally locked up by the colonel and not an impartial tribunal and that he did not have a right of appeal.
The Bill will introduce not only a right of appeal against the order of a commanding officer, but, by way of belts and braces, a right for a member of the armed forces to go straight to court martial--bypassing the colonel--if he chooses to do so. We are doing that because a court martial, which has a legally qualified president, is regarded as more likely to be accepted as an independent judicial authority within the meaning of article 6 of the convention.
We need to worry about the proposal at two levels. The first is the non-operational level, and I note that the senior officers who have debated the point said that, in this
respect, the provision might be all right, subject to questions of cost in places such as Colchester and Aldershot.It is at the operational level that the flaws in the European convention become starkly evident. It does not provide adequately for the operational requirements of the armed forces among the convention's members. That matter relates not only to the United Kingdom, but to all 40 or so members. It does not cover what in modern terms are described as dangerous armed operations. I was going to use the word "war" but of course one does not declare war nowadays. I do not think that war was declared in the cases of the Falklands, Iraq, Bosnia or Kosovo. There are perfectly good technical legal reasons for not declaring war.
Article 15 of the convention, however, allows derogation only in circumstances of war or a public emergency affecting the safety of the nation. One could not say that Kosovo was a public emergency affecting the safety of the United Kingdom. We were sending armed forces, as were the United States and other countries who took part, to try to uphold the human rights of citizens in a sphere of influence where we thought it practical and possible to do so. We now find that the European convention on human rights causes a significant muddle for military discipline in those circumstances, and that is the point that I want to address.
Where does the Minister regard derogation possible? It is my understanding--I am pretty certain that I am correct--that we still have a derogation in relation to Northern Ireland. I personally argued before the European Court of Human Rights the Brogan case, which raised the question of how long somebody could be held in custody other than at the behest of a court. In that case, it was decided that the maximum was 96 hours.
On receiving that judgment, my noble Friend Lord Hurd of Westwell immediately decided to advise this country to derogate; we did so and our derogation was upheld in the Brannigan case. That is right because, as everybody would agree, the situation in Northern Ireland provides a public emergency that affects the safety of the nation. There is no doubt about that, but the derogation does not apply to other areas where we send our armed forces.
It has been suggested by some hon. Members that it is fanciful to think that one would ever have to arrest and lock up anybody in a military situation, but unfortunately it is not. I am happy to think that it is rare and to join with all hon. Members who express the highest regard for our armed forces, their courage and their exemplary discipline. None the less, that discipline sometimes breaks down and, as Ministers will certainly acknowledge, members of the armed forces sometimes behave in ways that require them to be arrested and put into custody.
We are tending to assume that it is terribly easy to do that and to find a military or naval lawyer who will confirm those practices in a way that will justify the convention. However, in many circumstances, it may be deeply impractical to justify the convention. How far does the Minister think that operational exigencies modify our obligations under the convention? I have read the debates in the other place and I have not yet found--I may have missed it--a satisfactory answer. The Government simply must tackle that question.
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