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Dr. Moonie: I tell the hon. Member for Gosport (Mr. Viggers) that we are advised that the right of appeal will render us compatible with the convention only if the accused is not in jeopardy of a more severe sentence on appeal.
As much as I should like to satisfy the request of the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) for clarity in the law, I regret that that is not something that is at my disposal. If the law were a bit more clear generally, we would not need so many lawyers to explain it.
Sir Nicholas Lyell:
Will the Minister give way?
Dr. Moonie:
No, I do not intend to give way as there is no time. I am taking up time that we could spend on Third Reading.
Sir Nicholas Lyell:
It is on this point.
Dr. Moonie:
All right, I will give way as I referred to the right hon. and learned Gentleman.
Sir Nicholas Lyell:
I am grateful. I think that the Minister will appreciate that we are considering two different issues. The issue of whether on appeal from the
Dr. Moonie:
I shall be as clear and as brief as I can. My advice is that if the court to which a person elects his proceedings to be transferred is to be compliant, it must have no greater penalty than that of the court from which he elects to withdraw. That is the reason.
Sir Nicholas Lyell:
Will the Minister give way?
Dr. Moonie:
No, I cannot give way again.
Sir Nicholas Lyell:
I ask the Minister to give way. It is very important.
Dr. Moonie:
No; it is not important enough for me. I have given way once and that is quite enough. I am guided by convention, and I think that the right hon. and learned Gentleman should recognise that.
The change proposed in clause 12 is to ensure that an accused is not disadvantaged by electing for court martial trial. The rationale for that is to ensure that no one is dissuaded from exercising from the outset the right to be heard by a European court of human rights-compliant court solely because he or she is at risk of a more severe penalty. That is a fundamental point in the advice that we have received.
Article 6 of the convention provides the right to a fair trial, which, in convention terms, is not provided by a summary hearing. A summary hearing, for example, is not heard in public, and the defendant is not entitled to legal representation. Nevertheless, an accused may choose to accept such a hearing and decide to be dealt with summarily--as we believe that most accused still will, despite the Bill's provisions. If the accused does wish to exercise the right to a fair trial, it is wrong that, in doing so, he should run the risk of a greater penalty. Capping the sentencing power available to the court martial is the only possible way of securing article 6 rights for the individual.
I am sorry, but I cannot accept amendment No. 1.
Mr. Key:
Undoubtedly the Minister's words will be heeded in interpreting the law when, in future, matters are considered by the courts--that is how these things work now. However, I regret that he has decided that he must fall back on the legal advice that he has been given without giving way to my right hon. and learned and distinguished Friend the Member for North-East Bedfordshire (Sir N. Lyell), who has shed such light on dark corners of the law over so many years in the House. However, that is the position that the Minister has adopted--he is clearly in a take it or leave it mood today.
As I said, we have to make a judgment on the matter and decide whether to press the amendment to a Division--although my right hon. and learned Friend says
that he thinks that the current position is thoroughly illogical and inconsistent, and I entirely agree with him in that analysis; my hon. Friend the Member for Gosport (Mr. Viggers) has made a powerful case in speaking to his amendments; and the House has not been very well served in this debate. In view of the time, and the protected business that follows this debate, I must beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Order for Third Reading read.
The Minister for the Armed Forces (Mr. John Spellar):
I beg to move, That the Bill be now read the Third time.
As I am mindful that a number of hon. Members wish to speak in our limited time, I shall be brief. The Bill has a simple purpose: to ensure that, in two key spheres--summary discipline and pre-trial custody--our procedures are compatible with the European convention on human rights. That is not a casual concern, but one based on court rulings and subsequent legal advice.
The Bill deals with that concern. We believe that it safeguards our procedures from the likelihood of successful challenge, although, as we have acknowledged, it is impossible for any Government to provide an absolute guarantee that procedures may not fall foul of a court ruling at some stage in the future. However, we believe that the Bill does what is necessary to preserve critical spheres of the system of discipline, and that it does so in a manner that is proportionate to the convention's requirements.
The Government are fully aware of the imperatives of discipline and of the distinctive features of service life--although the Opposition may seek to give the impression that they have a monopoly on understanding those matters. We are not prepared to trifle with service discipline, and the Bill demonstrates that fact. The Bill also demonstrates what we have had to do because of court rulings and subsequent legal advice. It is difficult to imagine that any Government exercising those proper responsibilities would or could have acted otherwise.
The Bill preserves the authority of the system of discipline in the armed forces. In doing so, it achieves the Government's and the services' objectives. That is a tribute to the excellent work of our Bill team and legal advisers. I hope that, even at this late stage, the Bill might command the support of the whole House. I commend it on that basis.
Sir Nicholas Lyell:
Will the Minister give way?
Mr. Deputy Speaker:
Order. I think that the Minister has completed his speech.
Mr. Key:
It was revealing, last week, to see the newspapers reporting the warning given by the Home Secretary for public bodies not to "panic" over introduction of new laws guaranteeing human rights. When one hears the phrase "don't panic" in the context of the armed forces, one is reminded of the catch phrase of
Perhaps we could liken Defence Ministers to Corporal Jones, who was by trade a butcher, as they have certainly made enough choice cuts to the armed forces. Like Corporal Jones, they also seem to have been running around in a panic, by introducing this flawed and unnecessary Bill without thinking of its consequences.
In a report, on 30 March 1999, The Daily Telegraph quoted various people, including a member of the human rights task force, whom it said had
Mr. Key:
The Ministry of Defence has been spared. How very interesting.
One of the characteristics of our debates has been the Government's steadfast reluctance to give any indication of the legal advice that they have received. I suspect that we have witnessed another shameful episode of the Government saying one thing and doing another. They have said that the Bill is necessary to protect the authority of commanding officers, but they have been kowtowing to the Home Office on human rights.
It has been a strange Bill to follow through the House. There has been a curious lack of Government amendments. The Government like to say that that is because of the quality of their drafting, but, with no disrespect to the Government's lawyers, I suspect that it is because they wanted to rush the Bill through in the shortest possible time. The 2 October deadline is fast approaching and all the stops must be pulled out.
Ministers have given commitments in both Houses to come up with a single Act to amalgamate the three service discipline Acts. That is a serious commitment, in view of the chequered history of the issue. Successive Governments have been seeking to achieve such amalgamation since 1991. There is no evidence that the Law Commission is in a position to provide parliamentary draftsmen to help in the work. Recent parliamentary questions have confirmed that. Despite the expressed good intentions of Ministers, there is no evidence that their aim can be achieved in a reasonable time scale. The latest ministerial estimate was that it would not be achieved in the next quinquennial Act, due next year, but in the one after. Give or take 10 years is a fairly safe time scale--after all, we have been trying for the past 10 years--but it is not good enough. We shall seek to return to that issue.
In most cases during the passage of the Bill, Ministers have just ignored what we have said. The Opposition are used to making arguments that are then voted down by the Government. The Government are often rightly
accused of high-handedness and arrogance. Ministers have not been able to justify their conclusions on the Bill and have gone into autopilot mode, parroting the briefing material.
I am sorry that the Under-Secretary has had to leave the Chamber, although I entirely understand why. I would prefer him to be sitting in front of me as I quote his words from Standing Committee, but I must draw the House's attention to an exchange on 2 March. My hon. Friend the Member for Reigate (Mr. Blunt) had asked a question and been told that the Minister would respond later. My hon. Friend said:
In the end, it is down to the forces. The Government have tried to make military law ECHR-compliant. I was delighted earlier this week when the Chief of the General Staff launched his excellent document, "The Values and Standards of the British Army". It was many years in the making. I congratulate him and all the staff at the adjutant-general's department. I draw the attention of the House to two sections of the document. The section on the core values of the Army, in paragraph 11 on page 7, says:
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been combing through the whole range of public policy to identify where problems were likely to occur.
One member of the task force was quoted as saying:
It's a litigant's charter. The lawyers will make a fortune.
What's new? The story continued:
Ministers and officials from each Department have been summoned by the Task Force led by Mike O'Brien, the Home Office Minister, to assess their readiness for the legislation.
Has the Ministry of Defence been summoned before the task force? Was it before or after the Bill was drafted?
That is a trifle unsatisfactory. We have to decide now whether clause 2 should stand part of the Bill.
My hon. Friend then asked whether the Committee could adjourn to allow the Under-Secretary to take advice. The Chairman rightly said:
It is a matter for the Under-Secretary how he chooses to respond and a matter for Committee how they vote.
The Minister then said:
Indeed it is, Mr. Malins. As my reasonable offer has been rejected, I shall not bother to enlighten the Committee at a later stage. The Bill is as it stands and I shall support it from start to finish.
My hon. Friend then rose to intervene, but the Under-Secretary carried on:
The hon. Gentleman will resume his seat or rise on a point of order. I am under no obligation to explain anything other than that which I choose to explain. The Bill is as it stands.--[Official Report, Standing Committee D, 2 March 2000; c. 75.]
I greatly regret that exchange. There are many other examples. In the Select Committee on Defence, my hon. Friend asked the Minister for the Armed Forces:
Can you guarantee that . . . the new system of military justice that it brings in would be proof against ECHR judgments?
The Minister replied:
I could no more guarantee that than the Member for Mid-Sussex could have guaranteed it when it was introduced in the 1996 legislation.
That is fair enough, but we have been told time and again in Standing Committee that the Bill would gold plate against the ECHR. We do not know where this unsatisfactory Bill will lead us.
Soldiers volunteering for the British Army accept that, by putting the needs of the Service before their own, they will forgo some of the rights enjoyed by those outside the Armed Forces. But in return they can at all times expect fair treatment, to be valued and respected as an individual, and to be rewarded by reasonable terms and conditions of service.
Paragraph 15 says:
Because discipline is so vital to success on operations, commanders must be able to enforce it when necessary. That requires clearly understood rules and a military legal system which can deal with offences such as absence, desertion or insubordination which are not found in civil law. And if it is to work in war, such a system must be in place in peace, for it cannot be turned on and
6 Apr 2000 : Column 1202off at will. Discipline must therefore be rigorously but fairly upheld by all those in positions of authority, and self-discipline must be deeply rooted.
No doubt the Bill will reach the statute book shortly, in spite of all our argument. We feel that it will undermine the system on which British military success has depended for generations. We are mindful of the fact that, in the end, discipline is self-discipline. It is in the hands of commanding officers and of every member of Her Majesty's forces in seeking to live up to the ethos and standards of British military life, which have served this nation so well down the ages.
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