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 listening.

Dr. Lewis: Let us suppose that a commanding officer authorises a raid because he reasonably believes that there may be stolen material from Her Majesty's stores, illegally held weapons or drugs. He mounts a raid, and the forbidden material is found. However, the reviewing officer may then decide that, for one reason or another, the commanding officer has exceeded his powers, because it was not as reasonable as he thought to mount the raid without a warrant. Would that mean that the case against the people who had the illegal materials would collapse? I

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think that it would and that the order is a rather serious development in terms of the morale of law-abiding members of the armed forces. They may believe that a commanding officer no longer has the right to detect forbidden materials and to take appropriate action on his own initiative, because a reviewing officer may feel that the more should have been done to obtain a warrant or to find a policeman. The whole case may then collapse. If that is the implication of the legislation, there is cause for concern.

I appreciate that we are not reviewing the Act that laid down many of these provisions. However, we are examining the conditions under which a judicial officer can review the commanding officer's actions, and many matters relating to reasonableness are spelt out in the legislation. It is therefore legitimate for us to consider the point.

Mr. Swire: We seem to be driving towards circumstances in which the commanding officer has the relevant people at his disposal to instigate or back up a search, which suggests that the armed forces will be in a base-type situation—either in a barracks or on a ship. What are the operational implications of the legislation? I suggest that they are significant, because a commanding officer might be obliged to make a quick decision without any back-up. Bearing in mind that the law is based on case law, what is the precedent? If successive commanding officers are undermined retrospectively, what incentive do they have to carry out their duties?

Dr. Lewis: That last point touches on an issue that I raised earlier—the failure to discipline the two men who were sent home. They have apparently been told that they can carry on soldiering, with no blemish on their records. The problem is that the incorporation of bodies of rules and laws in the way that is proposed will lead to a policy of inaction and of turning a blind eye. I mean that not in the Nelsonian sense, but in the sense that steps that are necessary to maintain good order and discipline may not be taken.

I promised to make one more reference to a section of the Act. Not wishing to break that promise, and by way of illustrating my general point, I refer to section 5. The order alludes to it, which is why I have picked it out. It is entitled:

    ''Power of judicial officer to authorise entry and search of certain premises''.

To give a flavour of it, I shall refer to subsection (1):

    ''If, on application made by a service policeman, a judicial officer is satisfied that there are reasonable grounds for believing . . . there is on relevant residential premises specified in the application material which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence,''

the officer ''may issue a warrant''. The provision therefore seems to require a reasonable belief that one might find material that is likely to be relevant. If that is not a lawyer's paradise, I do not know what is. My hon. Friend the Member for East Devon shakes his head again in dismay, if not disgust. If such things do not illustrate the essential problem—that the balance between the necessities of the military ethos and the rights of individuals, which I outlined in my opening remarks, has been tipping too far in the wrong

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direction—I do not know what does. That is surely the purpose of the annual reaffirmation of such orders and the opportunity to introduce more fundamental legislation every five years.

I hope that the Minister will address my more general points. I also hope that he will write to me about the specific case that I mentioned and that the letter will be cleared by appropriate professional civil servants, rather than by political advisors, or what used to be called information officers. I look forward to his response. I thank hon. Members for their indulgence in listening to what I have had to say.

3.21 pm

Mr. Colin Breed (South-East Cornwall): I also welcome you to the Chair, Miss Begg. I also welcome the Minister, who I am sure is delighted to have received such a gentle initiation on his first appearance before this Committee.

I listened closely to the hon. Member for New Forest, East (Dr. Lewis), who raised many extremely important matters relating to the issue of balance. I want briefly to explore that issue and to explain some of the terminology in the orders. I shall do so not because of newspaper articles about recent cases but because of an important case that affected a constituent a few years ago.

My constituent was subjected to the most unbelievable action by the military police and the MOD. Martin Bell and I secured several debates in the House about that case. In the two years during which that young, high-flying officer was subjected to that treatment, his life was ruined. He left the armed forces and suffered serious health problems because of the stress involved. Much of that occurred because of what turned out to be entirely false allegations, which American officers had made against him while he was serving in Bosnia.

On that basis, I have a few questions about the issues that arise in the orders. The first relates to living accommodation. The orders suggest that living accommodation means service accommodation and deal with such things as soldiers lockers. Does that also include the private dwellings of personnel, including the marital home, whether it is close by or, indeed, anywhere in the world? I would like a full explanation of what living accommodation includes.

I would also like some indication of what is meant by time scales? My constituent was deprived of his personal property for more than two years and was not even allowed access to it to obtain evidence for his defence. From what point will property be deemed to have been formally retained? Must the authorities decide within a certain time whether such property is to be the basis for proper charges? If not, will it be immediately returned? In that respect, can the Minister give us an idea of the time scale within which an officer must investigate and report back? We do not want investigations to drag on literally for months and years, because that can have a huge effect on individual personnel.

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I also want to explore the storage and retention of such articles. Small items in a locker may be easy to store, but they may also be extremely valuable. An item stored in a garage, however, it could well be a vehicle. Initially, the costs of retention and storage were to be charged to the officer. Therefore, his possessions would have been seized and retained for a considerable period—much against his wishes, of course—and he would, at least at one stage, have been presented with the bill. That would only have added insult to considerable injury.

To conclude, there are issues relating to the balance of the orders. We recognise that there must be discipline, but there must also be a bit of fairness. All the allegations against the person in the armed forces may prove to be entirely unfounded or vexations. However, material and personal possessions may have been seized and retained for a considerable time, and that person's life may have been wrecked. It therefore behoves the legislation to provide such people with at least some protection. I do not have in mind those who are clearly guilty, in which case material can provide good evidence and can be presented in proper judicial surroundings—that is as it should be. However, legislation should protect those who are entirely innocent—those who are subjected to allegations that are proven to be totally unfounded, but whose lives have been turned upside down. We must ensure that such people are protected, and I hope that the Minister will explain how the provisions will work in that regard.

3.28 pm

Mr. Liddell-Grainger: Will the Minister spend a couple of seconds on the Territorial Army? It is part of the TA's ethos that a commanding officer who wants to find out something about his men cannot use the military system, because his men are civilians who put on a uniform at weekends and act as regular soldiers. At the moment, there are many TA personnel, including a Member of this House, who is serving in Iraq. Under the present provisions, the discipline that such personnel encounter might include the commanding officer of a TA unit asking to have a soldier's house—a civilian premises in a civilian location—searched. To follow the point made by the hon. Member for South-East Cornwall, if someone returns from deployment with the regulars, they immediately revert to being a territorial soldier. Has the Minister thought of the ramifications for the Territorial Army in such a case?

3.29 pm

Mr. Caplin: I thank the hon. Members for New Forest, East and for South-East Cornwall for welcoming me to the Front Bench. They are both absolutely correct that it is the first time that I have had the honour of piloting a statutory instrument on behalf of the Ministry of Defence. However, a few weeks ago, with the agreement of the Conservative and Liberal parties, I moved a Foreign Office statutory instrument.

This has been a useful and excellent debate. I am particularly grateful to the hon. Member for New Forest, East for the considerable support that he has

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given the Government during recent months. I know that that and the support of the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) has been acknowledged elsewhere. I rather mischievously intervened on the hon. Gentleman during his reference to the newspaper articles, but I will of course look at them and write to him in due course.

As far as I and the Government are concerned, there is no question about the legality of the operations in Iraq. That is the published view of the Attorney-General—the first time that the Attorney-General's view has been published prior to the House making its decisions. I have no doubt, therefore, that the military operations were legal; the Attorney-General approved them. I also have no doubt that our current operations are approved under United Nations Security Council resolution 1483 and therefore supported by the international community.

I shall try to address as many of the questions that have been raised as I can, but if I miss any out, I will be happy to write to hon. Members. Having just left my post in the Whips Office, I find myself under pressure from it, as there will apparently be a Division at 4 o'clock.

The hon. Member for New Forest, East began by asking about the policy development issue that I raised in my opening remarks. I reassure him that considerable, continuing progress is being made in developing harmonised procedures that will better meet the future needs of the armed forces. Some important factors remain undecided, but we want to assess the package in the round rather than release information about individual proposals on a piecemeal basis. I hope that the hon. Gentleman will not object to my quoting the hon. Member for Aldershot, who said in last year's debate:

    ''determination to get it right rather than to be hasty and bring a Bill before the House that has not been properly considered.''—[Official Report, Sixth Standing Committee on Delegated Legislation, 18 June 2002; c. 5.]

That is the Government's position.

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