Draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2002

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The Chairman: Order. The hon. Gentleman is perilously close to matters that are sub judice.

Mr. Howarth: I was merely responding to the Minister's suggestion that the Government were looking at the effect of a judgment that has already been made—in the Morris case—and that he was considering whether it was necessary, in the light of that case, to change the law. The Hastie case, as I believe it is called, is the case that has put that matter on hold. I do not refer at all to that case.

David Burnside (South Antrim): Has the hon. Gentleman any experience of the demilitarisation of symbols, uniforms and medals in the implementation of army discipline in some of our neighbour states—France, Spain and Germany, for example? Is what is happening in the United Kingdom, and that which is planned to happen here, happening in those neighbouring states?

The Chairman: Order. The order that we are dealing with applies only to the United Kingdom.

Mr. Howarth: I have to tell my hon. Friend the Member for South Antrim (David Burnside) that I am unfamiliar with practices overseas. As the Committee

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will know, I start from the premise that we should be the judges of what goes on in this country. We might take examples from elsewhere but, ultimately, we decide for ourselves.

I return to the general principle arising out of the Morris case. In five years, British Governments have introduced three new laws to bring service law in line with the seemingly insatiable demands of the ECHR—a court that appears to be hostile to our tradition of military justice, which is fundamental to the fighting ability of our armed forces.

During the passage of the Bill to incorporate the European convention on human rights into United Kingdom law, we urged the Government to follow the example of other European countries and seek a reservation for our armed forces. The Government ignored our warnings. Indeed, the Lord Chancellor even assured the House of Lords that the Human Rights Bill

    ''poses no threat to the effectiveness of the Armed Forces.''—[Official Report, House of Lords, 5 February 1998; Vol. 585, c. 768.]

To preserve the integrity of our system of service discipline, we believe that the Government should seek a derogation or exemption for the armed forces from the European convention on human rights or an exemption by an unambiguous statutory provision by subsequent legislation.

These matters are complicated, and I do not expect the Minister to be able to answer today, but I would like to know how much longer we will go on being the victim of judgments by the European Court of Human Rights about how we run the discipline of our armed forces. That must be a matter for the United Kingdom Parliament. Will the Government ever come to the conclusion that the decisions of that Court, which in principle are only advisory, may be faced down and rejected?

I do not mind if the Government elected by this country decide that we need a different disciplinary arrangement for our armed forces; if that is their view, it is fine, because the people of this country elect the Government and we can boot them out if we want to, but we cannot do anything to the European Court of Human Rights. These are fundamental issues of principle, and the Opposition urge the Government to consider how we may ensure the exemption of our armed forces from the impact of the European convention on human rights and the court.

I refer to the issues at stake in the Hastie case, which involves the question whether there should be any military personnel on the Courts-Martial Appeal Court. The Minister will correct me if I am wrong, but I understand that the issue involved is whether there should be any military involvement in the appeal system.

The Chairman: Order. That is sub judice, and the Minister cannot answer it.

Mr. Howarth: That is lucky for the Minister. At any rate, I have put the question on the record and perhaps the Minister will deal with it when he is able to do so.

Another point that we have made about the European Court of Human Rights and the

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civilianisation of the courts martial process is that it threatens to strike at the integrity of the chain of command. We would all acknowledge that, in the field of battle, the idea that warrant officer and non-commissioned officers should not be able to dispense summary justice would be absurd and deeply damaging to combat effectiveness. However, that is the route that we are taking in respect of the administration of the disciplinary system that operates when we are not engaged in hostilities.

The next issue that I want to raise is that of the International Criminal Court, aspects of which threaten to impinge on disciplinary procedures in our armed forces. This is the one occasion of the year when we have the opportunity to hold the Government to account on these matters. Even before the war against terrorism was begun on 11 September, considerable disquiet was expressed about the implications of the new International Criminal Court for our and US service men involved in hostilities.

Deep reservations were expressed in another place, not least by the noble Lord Shore of Stepney, who made some trenchant speeches expressing his concern. During the debate on 8 March 2001, Lord Howell quoted from an article—it was in The Guardian, so it must have been true—that referred to a senior military source saying:

    '''Given wrong rules of engagement [British commanders] could find themselves liable to prosecution as war criminals'.''

My right hon. Friend the Member for Horsham (Mr. Maude) sought an amendment to exempt the armed forces from the jurisdiction of the ICC for seven years, which was blocked by Government and Liberal Democrat Members. In a press release, he said:

    ''How can soldiers be expected to carry out their duties on active service when they know that their own Government will expose them to vexatious prosecution from rogue states? Article 124 of the Rome Statute allows countries to opt out for a period of seven years from the jurisdiction of the International Criminal Court. France will give its Armed Forces protection. Why can't Labour?''

That was said before 11 September. We are now engaged in hostilities.

My right hon. Friend cited the Canadian example, whereby an officer in charge of troops who have committed offences is held responsible only if he

    ''knows, or is criminally negligent in failing to know, that the person is about to commit, or is committing, such an offence.''

Proving ''criminal negligence'' in Canadian criminal law requires a much more rigorous test than the minimal protection offered to British military commanders. Clause 65 of the International Criminal Court Act 2001 states:

    ''A military commander . . . is responsible for offences committed by forces under his effective command and control''.

Lord Howell said:

    ''I . . . do not . . . understand why the Canadians, who are . . . at least equally as strongly . . . in favour of this than the present Government, can manage to finesse this matter. Why is it that they can change the words and we cannot?''—[Official Report, House of Lords, 8 March 2001; Vol. 623, c. 435.]

My right hon. Friend the Leader of the Opposition, when he was shadow Secretary of State for Defence, said:

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    ''The Government has so far ignored all adverse comments about the International Criminal Court Bill. We have consistently argued that the Bill is flawed and could lead to difficulties for commanders in the field in future. The Government should stop denying there are problems and listen to the military.''

That was last year, but as recently as last month, the United States Defence Secretary, Mr. Donald Rumsfeld, who is known to the Minister, repeated those concerns. He said:

    ''The United States has a number of serious objections to the ICC—among them, the lack of adequate checks and balances on the powers of the ICC prosecutor and judges; the dilution of the U.N. Security Council's authority over international criminal prosecutions; and the lack of any effective mechanism to prevent politicised prosecutions of American servicemembers and officials.

    These flaws would be of concern at any time, but they are particularly troubling in the midst of a difficult, dangerous war on terrorism. There is the risk that the ICC could attempt to assert jurisdiction over U.S. servicemembers, as well as civilians, involved in counter-terrorist and other military operations—something we cannot allow.''

I mention those concerns because they were expressed not only by the US Government last year, but by us on the Conservative Benches in the House before 11 September. The concerns apply in the same measure to us as they do to the US. Our forces operate in the spotlight of 24-hour news coverage, as we have all seen. I dare say that there are times when the Minister has seen on television, on CNN or BBC News 24, intelligence even from Afghanistan that has not yet filtered back to him through the military system. We would be expecting an awful lot of our armed forces if they had to operate in a wholly new goldfish-bowl scenario and be accountable to the ICC.

Again, the US has expressed concern on the subject. There was a report today in The Washington Times that the Bush Administration plan to ask the UN Security Council to exempt US peacekeepers from the ICC. I gather that the draft document has been shown informally to Security Council allies, including France and the United Kingdom. Has the Minister seen that document? What is the British Government's reaction? We know the reaction of the Prime Minister's wife, as she is quoted in last Thursday's edition of The Guardian as saying:

    ''The impact of the US failure''—

Mr. Jim Murphy (Eastwood) indicated dissent.

Mr. Howarth: The hon. Gentleman complains. Forgive me. Am I allowed to quote any other Queen's Counsel save the Prime Minister's wife? She is a QC.

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