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Sir Nicholas Lyell (North-East Bedfordshire): I am grateful to the Minister for giving way, although I did not mean to stop him mid-sentence. I was not a member of the Committee, but I took an interest on Second Reading and have attempted to read significant portions of the Committee proceedings. Practicability comes to mind.
In a battle or semi-battle situation, what would be the practicability of using video equipment? Has that been discussed with the judge advocate general? Can he summarise how he expects it to be used? Does the qualification "as soon as practicable", which one finds in various passages, provide a let-out or not?
Dr. Moonie: I can confirm that it does. That is why those words have been used. Again, we covered the matter at length in Committee. Clearly the right hon. and learned Gentleman has not had the advantage of reading those debates, but the point is to recognise that there are operational situations in which, with the best will in the world, we cannot always apply the conditions that we should like to. He is quite right: I should not have stopped mid-sentence because I have forgotten where I was and am unable to complete my remark.
Sir Nicholas Lyell: Of course the Minister knows exactly what happened in Committee. If he gives me a day and a Hansard column number to refer to I shall be most grateful.
Dr. Moonie: I am afraid that the right hon. and learned Gentleman's gratitude will have to wait, because I have no idea of the day on which we discussed this matter. However, I assure him that I gave the Committee reassurance on the flexibility that we intend to build in to cover the operational situations he has described.
To deal with the substance of the amendment, in Committee, my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department conveyed my regret that the rules to be made under the clause were not ready for publication. However, I undertook to have the instruments available in May and my officials are diligently working to that timetable. I understand hon. Members' desire to see the rules in draft. A great deal of detail will go into them and I accept that their content is vital to the efficient working of the system, but I do not believe that subjecting them to the affirmative procedure is the answer.
A key purpose of rules made under secondary legislation is flexibility. That flexibility is essential in this case to ensure that we are able to adapt the rules to reflect changes in circumstances, procedures and best practice. The amendment would mean that any, even minor, changes in our rules over the years ahead would have to be subject to further debate in both Houses. I would think a lot more of Conservative Members' opposition to the negative procedure if they had expressed it a bit more often when they were in power. I do not recall any of the Conservative Members sitting over there voicing such opposition at any time while I have been a Member of the House, other than in opposition. The negative procedure is convenient and well established in practice.
Mr. Quentin Davies (Grantham and Stamford):
I must correct the Minister. I frequently lobbied for reform of that procedure and shortly before the end of the previous Parliament put my name to a measure that proposed an initiative for such reform, although I cannot quote the date of the Hansard concerned. I agree that reform is needed
Mr. Deputy Speaker:
Order. I can excuse the Minister from answering that wider question.
Dr. Moonie:
Thank you for your ruling, Mr. Deputy Speaker. Although I accept what the hon. Gentleman says, it is interesting that his disloyalty in government has been rewarded with a post in opposition. [Interruption.] I would very properly be ruled out of order if I mentioned the single currency.
Mr. Sayeed:
The Minister's comment about reform was also directed at me. I assure him that if he goes back far enough--probably to 1986 or 1987--he will find that I was one of those who supported my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) when he said that he strongly deprecated all secondary legislation.
Dr. Moonie:
I disagree completely. Secondary legislation is very useful, particularly when the negative procedure is involved, and can be dealt with reasonably quickly.
This matter has been examined by the Delegated Powers and Deregulation Committee of the House of Lords, which gave its usual careful consideration to the rule-making powers sought by the Bill, including those under the clause. Its report accepts the proposed use of the negative procedure and states that the Committee has
Mr. Key:
My goodness, is not Parliament a menace when it gets between the Executive and its clients? I am sorry that the Minister is being so scratchy, but his scratchiness makes the point that we have won the argument hands down, and I am grateful for the support of my hon. Friends. He failed to address the point about video links, both now and in Committee, and the Government have failed to make the case. We are discussing the affirmative procedure as a principle. It is no good banging on about what might or might not have happened under previous Governments--he is in charge now--and if he thinks that reform is a good idea, and if he thought that it was a good idea then, why does not he do something about it, as my hon. Friend the Member for Grantham and Stamford (Mr. Davies) suggests?
There is another important point here. The Minister quotes the judge advocate general and says that he is satisfied, but he does not happen to be a Member of the House of Commons who has to decide what is in the interests of justice for our armed forces. We have to take that decision and we are not satisfied. That is what the
Minister has to realise. The matter is not a simple one of him stitching something up with some important part of the Ministry of Defence without consulting the House.
Having won the argument hands down and in view of the time pressure that we face with protected business to follow, it would not be responsible to take a quarter of an hour out of these brief proceedings to put the amendment to the vote, knowing that some 300 absent Members of the House will flood in to support the Government.
Mr. Blunt:
The number of absent Members is not 300, but about 400.
Mr. Key:
My hon. Friend is right. It is significant that the other 400 are waiting outside, even though only six or seven Labour Members are present.
We had better put the Minister on probation and we shall be watching extremely carefully. No amendments have been made, which is most peculiar.
Sir Nicholas Lyell:
We were focusing on the practicability of the use of video links and the delay that might be permitted in a battlefield situation. My hon. Friend was present throughout in Committee. Was he satisfied with the Minister's answers? In a sentence, can he tell us what he said about flexibility and practicability? What is my hon. Friend's opinion?
Mr. Key:
My right hon. and learned Friend is right, and I was wholly dissatisfied with the Minister's responses in Committee. He said that it was unlikely that such circumstances would arise in a battlefield situation and said the same on the issue of discipline. We were also told that, should they arise, the accused person would be withdrawn from the battlefield. He and the Government are on probation. We shall no doubt return to these matters, either when we consider the Armed Forces Bill or at a later stage. Bearing in mind all that and the moral victory that we have scored in the argument, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Key:
I beg to move amendment No. 6, in page 32, line 10, at end insert--
The purpose of the amendment is to ensure--[Interruption.] Oh, I wonder whether we should pause at this point in order to call back some Members who seem to have decided to leave the Chamber. No; we are back to our usual small team.
The purpose is to ensure that, either before or after the accused has made his or her decision to be tried by court martial, no person will be able to force the accused to change his or her mind, and opt to have the matter dealt with summarily.
2.45 pm
considered carefully whether it is appropriate that a power wide enough to regulate the admissibility of evidence and the immunities of witnesses should not be subject to affirmative procedure. The rules will be part of a framework consisting of existing legislation and subordinate legislation made under it. The whole will have to be compatible with Convention rights under the Human Rights Act 1998. Against that background the Committee can accept that it is appropriate that the rules should be subject to negative procedure . . .
Because of that, and for the other reasons that I have outlined, I am afraid that I cannot support the amendment.
'(1A) The Defence Council may by regulations make provision designating those persons who, either before or after the accused has elected for trial by court-martial, may counsel him on that decision.'.
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