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Mr. Key: During his time in the Ministry of Defence, has the Minister had time to attend a court martial?
Dr. Moonie: No, the Minister has not, although I have been able to review the written proceedings of several. It would be quite a pleasant way of spending an afternoon--it would certainly be informative--but so far I have not had the time.
As for the Human Rights Act 1998, we have made many changes. We have brought procedures into line with the European convention on human rights. We have removed any apparent influence of the chain of command over the administration and conduct of courts martial. The European Court of Human Rights has recognised our actions, and, in the judgment on the Findlay case, noted the changes that we have made with satisfaction, saying that the United Kingdom authorities had made changes to the court martial system with a view to ensuring the observance of their convention commitments.
The Bill itself has been certified by my right hon. Friend the Secretary of State, on the basis of legal advice, as being compatible with convention rights. That means
not just that specific proposals in the Bill are compatible, but that the three service discipline Acts that will remain in force under it are as well. Ensuring that that happens has meant checking that all our procedures are compatible with the convention. Most of them already were: after all, we signed the convention nearly 50 years ago.We are not complacent; we are always prepared to review legislation. I think that my hon. Friend the Member for Leyton and Wanstead would be very surprised if I said that I agreed with the principle that he is trying to apply, but I certainly agree with his aim, which is to make the system as compatible as possible with the civil disciplinary system, and as fair, open and transparent as possible.
Mr. Gerald Howarth: The Government may think that the Bill is compatible with the European convention on human rights, but I wonder whether it has been subjected to scrutiny in connection with the charter of fundamental rights signed by the Government in Nice.
Dr. Moonie: I do not think that that was necessary. The Bill complies with the law as we have to observe it, and it will be a better Act as a result.
Clauses 23 to 26 ordered to stand part of the Bill.
Clause 27
Question proposed, That the clause stand part of the Bill.
Mr. Key: Clause 27 deals with costs awarded against legal representatives. It provides that, in any proceedings, one of the courts listed may disallow, or order the legal or other representative to meet, the whole of any wasted costs. It defines "wasted costs" as costs incurred by a party
- "as a result of any improper, unreasonable or negligent act or omission on the part of any representative or any employee of a representative".
That is why I am interested in a discussion of sins of omission in relation to clause 27. Such sins may be committed by military documents, such as the various provost manuals, which have a restricted classification. They prescribe, among other things, legal procedures for the exercise of constabulary power, or whether the Army Commissioning Regulations 1999--which derive from royal prerogative, as does much military law--should continue to be classified.
That was an interesting proposition, which led me to table a parliamentary question on 2 February asking the Secretary of State to place in the Library copies of the documents listed by Professor Rubin--the unit folder
entitled "Military Custody and Summary Dealing System", the provost manuals, the Army Commissioning Regulations 1999, the military secretary's guide to officers' confidential reports, Army form AF B9926 and the Army general and administrative instructions, volume 5, instruction No. 6.That seemed quite reasonable, and I had a very reasonable reply from the Minister for the Armed Forces, who said that copies would be placed in the Library.
When the Select Committee heard evidence from the Secretary of State on 7 March, I raised the matter with him. I pointed out that by that date, more than a month after the tabling of my question, the Library had three times requested the parliamentary branch of the Ministry of Defence to put the papers in the House, and that three times the request had been refused. The Secretary of State replied to my question--it is question 1131, on page 165 of the Select Committee report--by saying, "I will." I said, "Thank you."
In anticipation of tonight's proceedings, I returned to the Library. I asked what had happened to the manuals. On 28 March, I received a letter from the Library that told me:
- "I contacted the Parliamentary Clerk's office today and the official told me that these documents are classified. There will therefore be a delay of at least a couple of weeks while versions are approved for placing in the Library. As soon as we receive the manuals, we will contact you again. I hope that this is helpful."
Someone should get a grip of the Ministry of Defence. I hope that the Under-Secretary of State will be able to achieve more than either the Minister of State or the Secretary of State, and I should be grateful if he would do so now.
Mr. Blunt: It appears from clause 27(3)(b) that the regulations made by the Secretary of State under clause 26 can be made against prosecuting officers
- "appointed under section 83C of either of the 1955 Acts or under section 52J of the 1957 Act".
The prosecution was perfectly well prepared by the regiment, and the case seemed clear-cut, as it related to someone stealing a fellow soldier's bank card--he knew the number--and emptying his account on five separate occasions, but it was conducted so badly by the prosecuting officer that, halfway through the proceedings, the defence moved no case to answer, whereupon the young captain conducting the case for the Army legal corps burst into tears and had to be taken away to another room, with a rather aggressive judge advocate taking part.
8 pm
In such circumstances, with the case collapsing because of the incompetence of the prosecuting officer--in my experience, regrettably, not an uncommon occurrence--the defence could very properly have moved for costs. Regardless of whether the defence is funded privately or through legal aid, the prosecution could surely be liable for costs under this part of the Bill.
If the prosecution is found liable for costs, will a bill from the Ministry Defence, which funds the prosecution, go to the legal aid budget and/or the individual? What is the position of the poor, hapless officer at regimental duty, who is not a lawyer--this is what happened to me--but is the assistant prosecuting officer?
Mr. Hancock: If prosecution cases are not prepared properly and the officer presenting the case is incompetent, surely there should be redress and the defendant should be able to claim costs. That will surely prove an advantage to the court martial system, because people will have to be better prepared, and better able to conduct themselves, in future.
Mr. Blunt: I agree. It is perfectly proper to expect the Army legal corps and other armed forces legal services to operate to a proper standard, but they often have difficulty in recruiting lawyers of sufficient ability to make the system fly. The system is skewed in favour of the defence because of service lawyers' limited resources. At least, that was true in my time--I am prepared to accept that things may have changed in the past dozen years. Have the consequences in terms of the cost to the Ministry been thought about? Will the Ministry have to pay the legal aid fund, or individuals funding their own defence, out of MOD funds, as it properly should do?
Mr. Hancock: I see nothing wrong with what is being proposed. If the Ministry of Defence ends up having to pay a large sum because of the incompetence of prosecutions, so be it. That is one reason why it should get its legal services in good order. When evidence was given to the Defence Committee, of which I am proud to be a member, several questions were asked about the calibre of lawyers recruited to the armed forces and we were assured that it was no longer a problem, that young lawyers who wanted a future in the military were being recruited in sufficient numbers and that senior officers were content that they were in the process of developing sufficiently robust legal services.
We were told that proper advice would be given to commanding officers about how courts martial or other hearings should be conducted. I am sure that that confidence was based on sound information. We were assured that sufficient resources would be put into armed forces legal services. Unless the Minister is not prepared to repeat those undertakings, I see nothing wrong with the clause, but it is a bit rich for the Ministry of Defence to suggest that it has a backstop on the compensation that will be paid if we get it wrong. It should clearly start from the premise that it is not going to prosecute anyone unless there is a good chance of success and it is totally confident that the prosecution team is sufficiently robust to present the case properly. Whether the defence is up to the job is another matter.
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