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

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Ms Joan Walley (Stoke-on-Trent, North): On a point of order, Mr. McWilliam. This may be a case in which whatever context the hon. Gentleman is raising the issue, he is at liberty to do so, but he should distinguish between whether he is talking about someone in a professional capacity or a personal capacity.

The Chairman: The hon. Gentleman is not out of order, although he is not in line with the best traditions of the House.

Mr. Howarth: Thank you, Mr. McWilliam.

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The quote appeared in a national newspaper—not one that I read frequently, but a copy of the article fell into my hands. The QC in question said:

    ''The impact of the US failure to support the ICC may be symbolically important—a high-profile rejection of a major initiative for the rule of law in international affairs.''

The comment from Ewen MacAskill, diplomatic editor of The Guardian, is:

    ''Mrs. Blair's speech in London last night was much more outspoken than the official government line. Both Downing Street and the Foreign Office, while regularly expressing disappointment at the absence of the US, tend to be muted in their criticism of Washington.''

We should know whether the speech made by Ms Cherie Booth QC represents Government policy. What is the Government's policy? We are perfectly entitled to ask that question.

Issues arising out of the International Criminal Court Act 2001 and the UK's ratification of the Rome treaty are coming home to roost. How does the Minister view the UK's position vis-a-vis that of the United States?

The issue of women on the front line touches on disciplinary issues only tangentially. I warmly welcome the Secretary of State's decision to refuse to allow women to operate on the front line in several units. We may have a greater opportunity to explore the matter in Westminster Hall on Thursday. Some of the arguments that he advanced in arriving at his decision seem to be undermined by the ruling of the European Court of Justice in October 1999 that there is a duty to assess periodically the activities involved in order to decide whether, in the light of social developments, the derogation from the general scheme of the directive may be maintained. There is no blanket exclusion of the armed forces from the European Community treaty.

It may not be appropriate for the Minister to do more than make a passing reference to the matter. The forces have welcomed the decision, as do we. However, will he comment on the implications of the 1999 ruling that there is a duty continually to keep the derogation under observation? Who determines whether social conditions have changed? Is it us, or the European Court of Justice?

We support the renewal of the principal Acts through the order. However, several issues are of concern and I hope that the Minister of State will address some of them.

5.4 pm

Mr. Ingram: I welcome the welcome of the hon. Member for Aldershot (Mr. Howarth) for the draft continuation order. He set out a range of issues; I can respond to some in detail but he will recognise that it will be difficult to respond to others given the minutiae and detail involved. I shall do my best not to stray off the subject, and I know that you will, as ever, ensure that I keep rigidly to order, Mr. McWilliam.

The hon. Gentleman is correct to say that we must get things right and take the necessary time. We are doing exactly that. We are making careful judgments

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and assessments and taking account of the concept of the single service ethos, which , as we have always said, underpins everything that we seek to do, even given the increasing interrelationship among the single services to work in a tri-service way. We have succeeded in doing that, and I am encouraged that those who deliver the services for us increasingly recognise that changes have proved to be for the better, although they might have been initially reluctant to accept that. Doubts did exist. It is right that we recognise sensitivities—legal and others—when considering the service discipline Acts.

The hon. Gentleman also mentioned what he called the obsession of the European Court of Human Rights to get involved in military affairs. The court may become involved only when matters are referred to it. It does not interfere unless it is ruling on matters of legality that are brought to its attention. It is interesting that the hon. Gentleman and the Conservative party argue that members of the armed forces should have a lesser protection than other citizens while simultaneously saying that members of the armed forces do more than other citizens. We must take those issues into consideration at all times.

Society changes and it is sometimes difficult to assess it when that happens. We are not social engineers in terms of the armed forces, but we must respond to changes in society. One question that we have to examine is that of unentitled partners, who are people in unmarried relationships. Those people form one of the expanding groups in society, and the services are not immune to that.

We must examine all the social changes that take place. We must also consider what all our citizens want. We seek at all times to encourage them to support the armed services and hope that they will encourage members of their families to join the armed services—or join themselves. Does the hon. Gentleman think if people felt that they would be treated more punitively and be less protected by justice, that that would cause a drag on recruitment and retention, or would it be a bonus?

We must consider those matters as we go forward. I was not Minister when judgments were made about including the armed forces in the human rights legislation and about the way in which that was implemented, but thoughts on the issues that we are discussing were considered then.

Mr. Howarth: I understand that. When I said that British Governments responded to rulings by the European Court of Human Rights, I wanted to make it clear that not only the Labour Government, but the last Conservative Government were in that position.

The Minister asked whether I thought that we should have lower protection for our service men. I tried to make the point that the military should be different. There is a difference of emphasis between us. If systems of discipline in our armed forces are to operate efficiently, it might be necessary for the military to be different and for the protection to be different from that that applies in civilian courts.

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Mr. Ingram: Yes, the services are different—and that which applies is different. However, my point—which I hope the hon. Gentleman takes as a moot point—is that we must ensure that they are not so different that such issues cause a drag on recruitment and retention because people find that they are out of phase with normal life. We have to address such matters if we are going to succeed in encouraging people to do what many of our citizens are never asked to do, which is make the ultimate sacrifice in defence of the nation or of other people. We must always be aware of social trends. To ignore them because of anti-European prejudice would be a flawed basis upon which to look after the interests of those who serve in our armed forces.

The hon. Gentleman raised issues about the increasing civilianisation of the processes that we are discussing. However, Army and RAF judge advocates have been civilians for many years, in advance of the current procedures, and they wear judicial uniform rather than military uniform. He might think that the wearing of weapons such as swords and the display of other paraphernalia that relate to the military presence has a particular effect on people, but that effect might well be detrimental. Perhaps that is why a change took place many years ago—well in advance of the current debate.

The hon. Gentleman also made the point that court martial members are drawn from a different chain of command than that of the accused. That change took place in 1996, in advance of the Labour Government entering office—his research has not been sufficiently detailed. He should ask those of his colleagues who considered the matter why they did that. I suspect that the reason goes back to my earlier point about the need to ensure that those who serve in the armed forces are not so different from the rest of society.

Exemption from the European convention on human rights is not easy to deliver, and it was never advocated by the Opposition when they were in government. They have alighted on the matter now, but they did not do so when they had the opportunity to pursue it—as is the case with so many things. They implemented that in the way in which they usually implemented things—they said one thing, and acted differently.

Mr. Howarth: The Minister has made a fair point. The only response that I can give is that we have now seen a succession of decisions from the European Court of Human Rights. Perhaps it was sensible in the early days to give it the benefit of the doubt, although I take the view that we should have exempted our forces from the outset. That did not happen under the last Conservative Government, but the current Conservative Opposition have made it clear that we now feel that it should happen. There have been so many cases that have led us to feel that way. How many more such cases must there be before the Minister feels the same way as us?

Mr. Ingram: The hon. Gentleman has not said how many such cases there have been—he merely says ''so many''. I do not have the figures in front of me, but I will write to him and other Committee members with detailed figures, so that we can see whether there are

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''so many'', or just the impact of one. The percentage of cases is small: we set a target of 5 per cent. of cases being subject to appeal, not to the European court, but within our own processes. In fact, it is much lower than that.

The hon. Gentleman also mentioned the Morris case and asked for some clarification. The Strasbourg court approved in principle the concept of military courts. It did not argue against military courts—perhaps he should read its judgment in detail. The court's observations related to two points of detail of our court martial systems. One of them has been corrected: we suspended the relevant proceedings in the Army and the Air Force and we corrected that element—and he is right to say that the backlog is now being dealt with. The other element impinges on matters that are currently being considered by the Appellate Committee in the other place, about which I do not wish to go into detail. He is right to say that we were looking at the matter in advance of that hearing. It is only right that we give consideration to how to deal with that other element of possible non-compliance.

The Courts-Martial Appeal Court has always consisted solely of senior civilian judges. There has been an ethos of civilian presence in the courts for a considerable time and in many ways. The hon. Gentleman referred to the International Criminal Court, but that does not affect discipline matters. I well understand why he raised it, but our service law and obligations under international law already require us to meet high standards, and that is clearly part of the ethos.

As for what could be termed ''politically motivated prosecutions'', no state may join the ICC convention unless it accepts the court's jurisdiction. Each court remains primarily responsibility for dealing with allegations. The hon. Gentleman also said that the United States of America has a particular point of view. So do other countries. I do not know whether he is saying that the USA should dictate our actions in respect of our international obligations. The nature of our international relationship is that we hold to what we believe to be best judgment in our assessment at the time.

It is not unusual for us to have a different point of view from the United States or other countries. They take a particular approach. We have analysed our situation and have reached a well-rehearsed, well-argued conclusion. We can base effective judgment only on that which happens. We believe that we have got it right and that we have assessed the matter properly in terms of our international obligations.

The USA and other countries hold a different view, as can individual QCs. They have the right to express a point of view and I am sure that the person who has been quoted will have expressed it from a legal perspective, not in relation to whom she is married—a matter on which the hon. Gentleman unfortunately tried to draw. It was a low form of attack on someone who cannot answer back in this place, irrespective of to whom she is married.

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As I said to the hon. Gentleman when he raised the matter yesterday in Defence questions, if I criticised his wife or the wife of any other hon. Member—certainly any Opposition Member—he would be anxious. You, Mr. McWilliam, have expressed your view on such matters. While it is in order to discuss them, it sets a much lower standard for the conduct of debate.

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