Draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2003 and Draft Armed Forces (Review of Search and Seizure) Order 2003

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Mr. Caplin: I am happy to respect the hon. Gentleman's views, as he has served in the armed forces and I have not. However, I should point out that the House passed the Armed Forces Act prior to the 2001 general election, at which he was elected. We had many such debates in the run-up to the enactment of the legislation, and the order is before us under the affirmative procedure, to which the Government committed themselves. The legislation—the 2001 Act—already exists.

Section 8 of the 2001 Act enables the Secretary of State to make orders prescribing the judicial officers' powers and duties in conducting reviews. The order prescribes those powers and duties, particularly the criteria for decisions on the retention or the return of seized property. At the review, the judicial officer shall adopt such procedures as he sees fit, although he shall take into account representations by certain people, including the officer who authorised the search and the occupier of the premises that were searched. The order details when seized property should be returned. Special provision is made for when the judicial officer is satisfied that it would be in the interests of justice to permit the retention of property. Part 2 of the Act responds to the need for the services to have a clear structure and definition of their powers to search and seize property. Commencement is planned for 30 September, subject to the approval of both Houses.

I commend both orders to the Committee; I hope that they both receive all-party support.

2.44 pm

Dr. Julian Lewis (New Forest, East): I begin by echoing the Under-Secretary's words: it is a great privilege and pleasure to serve under your chairmanship, Miss Begg. Notwithstanding the bit of debate that we have already had, I do not anticipate this being the most controversial matter with which

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you will have to deal in the course of what I hope will be a long and successful career as a Committee Chairman. I also welcome the Under-Secretary to what must be his first Front-Bench outing on a statutory instrument in his new role as a Defence Minister. It is also my first outing on a statutory instrument on the subject, and I will seek to do the issue justice.

I warmly endorse what the Minister said about the work of our troops in the Iraqi campaign and about the sincere sorrow that is felt in every part of the House at the terrible events of the past 24 hours. Her Majesty's Opposition remain absolutely determined to continue to give the Government and their armed forces total support. We realise the need to respond to such an atrocity not with weakness and withdrawal but by redoubling our efforts to ensure that the sacrifices made in the initial campaign and in the current peacekeeping and rebuilding work are not in vain but lead eventually to the emergence of a democratic heartland in the middle east. Such efforts would do much to unpick the consequences of the many terrible events that have take place over such a long period in that benighted area.

Neither the Under-Secretary nor I is a lawyer, although I am a sometime historian. I hope therefore that I may be permitted a brief look back at some of the events that have taken place on 25 June in recent history, because they are instructive. On 25 June 1950, North Korea was invading South Korea. On 25 June 1970, the United States was unveiling a new plan for lasting peace in the middle east. On 25 June 1985, 13 terrorists were arrested in London as a plot to plant bombs in a series of London hotels was thwarted. It all sounds terribly familiar and extreme.

The strangeness of professional service life is that it has to prepare regulars and reservists during peacetime for extreme wartime environments. The fact that our servicemen can successfully carry out their functions and duties in such extreme circumstances is in no small part due to the codes, ethos, training and discipline that they receive in the armed services before going into battle. It is in that context that the service discipline Acts are so important. It is absolutely correct—not only for the ancient historical reason that we in this country do not want to have a standing Army—that we should have an opportunity every year to check how well the application of those Acts strikes a balance in that paradoxical situation. They must strike a balance between service ethos and individual rights, service discipline in battle and individual initiative, and the authority of command and the diktats of conscience or creed. The situation is, of course, not absolutely rigid; it is evolving, and I wish to briefly dwell on that evolution.

First, and most notably—and we have seen this in the Minister's opening remarks—the situation is evolving with the impact of human rights legislation. Secondly, it is evolving with the development of joint expeditionary operations. Thirdly, it is evolving because the main adversary that the United Kingdom forces face has changed from the Godless

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rationality of Marxists to the uncompromising mania of fundamentalists.

Some aspects of the legislation are uncontentious. It is common ground that the move from three service discipline Acts to one tri-service Act will be beneficial. However, I was a little disconcerted to hear the Minister say that the policy development stage had been taking ''a little longer than anticipated''. I say that because the policy development stage team that is attempting to bring together the separate Acts began work in September 2001. I know that that was a particularly pregnant month, but as recently as June 2002, when the draft orders were being considered, the team was reported to be halfway through that process. It was also stated at that time that the team aimed to complete the development stage by spring 2003. Will the Minister confirm whether we are on course for that? I am not aware of any announcement that that stage had been completed. I would like him to be more precise about what slippage that he anticipates during conclusion of the policy development stage.

The Under-Secretary said that the Government still intended to introduce the tri-service Bill with the quinquennial Bill in the 2005–06 Session, and I hope that that happens. Is he satisfied with the work that the policy development committee has done thus far, and that the ethos of each service is being adequately catered for? I am sure that he will appreciate that we do not want the pendulum to swing too far in the direction of jointery, given that the different functions of the Army, the Royal Navy and the Royal Air Force mean that men and women in those services will continue to have significantly different roles, functions and working conditions.

Mr. Swire: Will my hon. Friend acknowledge that those services differ not only from each other but from the special forces? Is it his understanding that the legislation would apply to the different circumstances enjoyed by the special forces?

Dr. Lewis: In all my revision of the previous occasions on which the concept of the tri-service Act has been promoted, I have not come across a Minister referring to the special forces. It will be interesting to see whether the Minister departs from that practice in his reply and gives us some information. I thank my hon. Friend for drawing the Committee's attention to that peculiarly important aspect.

Lord Vivian, the Opposition spokesman for defence in the House of Lords, raised an important point about the development of a tri-service Act when he spoke about the orders in that House on 19 June 2002. He asked whether there would be ''advance consultation with Parliament'' while the relevant Bill was drawn up. We are talking about a highly complex task, and the timetable slippage that we have seen is evidence of the fact that it is not easy to bring together three highly complex Acts dealing with services that retain significant differences despite working closely together. Therefore, it would be helpful to draw on the experience of my hon. Friends the Members for Bridgwater and for East Devon so that they may have some input into the complicated process that must be carried out successfully if we are to make progress on the proposed Act.

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When Lord Vivian was responding in the other place to the laying of these orders, he stated something that was very wise and that deserves to be quoted. He said:

    ''The new Act will be of such importance that we should try every way to retain the effectiveness of the military discipline system ensuring that commanding officers retain their full powers.''

He also said:

    ''Changes were made to existing military law and although they achieved the object of retaining summary powers of jurisdiction and custody before trial, they also undermined the authority and effectiveness of a commanding officer as did a number of other changes.''—[Official Report, House of Lords, 19 June 2002; Vol. 636, c. 836.]

It is very important that nothing we do further damages that authority.

Mr. Swire: Does my hon. Friend agree that elucidating where Lord Vivian came from and on what basis he made his informed judgment would be beneficial to members of the Committee who are not aware of his curriculum vitae?

Dr. Lewis: As my hon. Friend well knows, Lord Vivian was a brigadier in the Army. He has vast experience of the armed forces, as have so many Members of the upper House. Many have served in the highest positions in each of the armed forces. The contribution that they can make to the process cannot be overestimated.

I turn to some of the more contentious aspects, which were raised by my hon. Friend the Member for Aldershot (Mr. Howarth) when the orders were considered last year. He drew attention to what he described as the ''relentless obsession'' of the European Court of Human Rights with interfering with the armed forces; he expressed concern at the civilianisation of the ethos of the armed forces, which might throw out of kilter the difficult balances that the service discipline Acts are designed to strike; and he expressed concern about the International Criminal Court. I should like to touch on those three issues.

We have heard from the Minister about the difficulties that the Morris case has caused. He has more eloquently than I referred to the change that the incorporation of human rights legislation into United Kingdom law has wrought by wryly admitting that, even though the Law Lords have confirmed their belief that there is nothing wrong with the legislation that we have enacted, this is still not the end of the story. By saying that the passage of human rights legislation has in some way better prepared our courts to deal with the impact of the European Court of Human Rights, he put an element of spin on the presentation that is worthy of that great spin doctor who is attending another Committee this very afternoon—attracting, perhaps deservedly, a deal more media attention than our deliberations.

On the question of the civilianisation of the armed forces, I refer the Minister to a particular case. I do not expect him to comment on it in detail now, but I would like an undertaking that he will look into the matter and that he will write to me after carrying out investigations.

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I refer to three newspaper reports on the case of two dissident soldiers, as they are described, who were sent back from the Gulf after expressing concerns about the legality of the war in Iraq. I shall quote first from The Times of Friday 30 May:

    ''The soldiers, whose names have not been made public, were said to have been inspired by the resignation from the Cabinet of Robin Cook, the former Foreign Secretary, to question whether the conflict was justified. Their solicitor, Gilbert Blades, suggested that the Government was reluctant to allow the legality of the Iraq war to be put on trial by punishing the men.''

Is there any truth in the charge that the Government were reluctant to have those men face disciplinary procedures because of the political fallout of the issues that would be raised at any such disciplinary hearing? I am sure that the Committee would agree that that would be a very serious development.

However, curiously, the report in The Times then states:

    ''The Ministry of Defence denied that any soldier had been sent back from the Gulf after expressing concerns about the justification for war.''

There is therefore a contradiction between the account given by the lawyer for the two men—who, one would have thought, would have known the basis for their being sent back—and that of the Ministry of Defence, which issued a categorical denial. I would like that point cleared up. Were the men sent back for such a reason?

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