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Mr. Hoyle : What is the hon. Gentleman's view on the George Mendonca case?

Dr. Fox: I shall come to that issue later, when it is appropriate for me to do so.

Perhaps the most graphic example of the situation was described in an article in The Sunday Times on 6 November, which reported a senior Royal Army Medical Corps doctor saying that in Basra he and his colleagues had been counselling young soldiers who

Even more alarming is the assertion that

The reality of that would undoubtedly be contested but the perception exists, and perception affects behaviour. We must take that into account in our debate.

One corporal said that troops arriving in Basra were confronted with warnings from the Royal Military Police that every incident would be investigated and that, if they shot someone, they would face an inquiry that could take up to a year. Hon. Members of all parties accept that to achieve the goal of maximum operational effectiveness, discipline must be maintained and that, therefore, an effective system of military justice must be in place. The system must support commanding officers and the rights of those serving at every level. That is a difficult balance, but it must be struck.

No hon. Member believes that members of the armed forces should be above the law. Indeed, according to the manual of military law, those in our armed forces are not only subject to the law of the land, but the disciplinary environment is maintained by supplementing the ordinary criminal law and judicial system with a special code of discipline and a special system for enforcing it.

For all our servicemen and women, it is essential that justice is done and seen to be done. That is important not only for the standing of our armed forces at home and abroad, but for their morale. Discipline must be clear, coherent, transparent, efficient and fair. Perhaps above all, there must be a clear link between discipline and command, as several of my hon. Friends have said. If the link is broken, it means that those who have to make life or death decisions on the spur of the moment may worry as much about the legal consequence of their actions as about the actions. That is potentially
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catastrophic for our operational capabilities. What a tragedy if our serving men and women were to become as afraid of lawyers as of insurgents.

We must always remember that the armed forces are different and need to be different. They are asked, in the name of our national security, to take lives and, at times, to give lives in a way that ordinary civilians are never required to do. The system of discipline that is applied to them and the considerations around it need to take fully into account that those involved are in potentially lethal situations. The position is unique and must be tackled as such.

Ministers have often stated that servicemen and women should reflect or be representative of British society. Although I agree that our forces should reflect the make-up of society at large, I put it to the House that the outstanding success of our armed forces derives from their adherence to a set of values which is, all too often, in short supply in society. Furthermore, when soldiers undertake operations, they operate under a different set of circumstances, which must be acknowledged by the law, and for which the wholesale adoption of civilian legal procedures is not appropriate. The Secretary of State made that point in his opening speech.

Chris Bryant (Rhondda) (Lab): I am grateful to the hon. Gentleman for giving way, not least because I have not been present for the whole debate, for which I apologise.

The hon. Gentleman said that servicemen and women operate in different circumstances. Today, in marked contrast to 30 or 40 years ago, those circumstances include the fact that they nearly always work alongside nationals of other countries and with armed forces of other nationalities. Sometimes, when there is a difference in perception of the disciplinary structure and systems of different nationalities, it may cause distress and further complications. How does he believe that we can reconcile that?

Dr. Fox: Far be it from me to attempt to put words into the Secretary of State's mouth, but it is difficult enough to reconcile the disciplinary position between the three services in this country without trying to reconcile it with the disciplinary procedures for other forces serving abroad. In any case, in some details, for example, in the Falklands and Iraq, our soldiers often operate by themselves and have to be subject to a British disciplinary code that is based on British law. Surely that is the correct position for British armed forces.

The correspondence between the Attorney-General and the Secretary of State's predecessor, which was discovered during a recent legal action, is extremely revealing. An article in The Observer on 27 February reported that the Attorney-General wanted to replace the Army prosecuting authority with criminal lawyers from outside the Army, an intervention about which, I am pleased to say, the former Secretary of State said that it

Such a move would be a grave mistake.

Ministers need to understand that, in many parts of the services, there is a general anxiety about the increasing threat to the disciplinary traditions of the
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armed forces. Perhaps it was best put by the former Chief of the Defence Staff, Lord Boyce, when he spoke in a debate in the other place on 14 July. He said:

There will undoubtedly be a debate on how true that perception is. However, its existence is debilitating. There is a particular anxiety about the operation of the European convention on human rights and the Human Rights Act 1998 and its impact on service law, of which we had several recent examples. The basic problem is that no set-aside was made for the military. When debating the jurisdiction of the International Criminal Court, my right hon. Friend the Member for Horsham (Mr. Maude), who was then shadow Foreign Secretary, called for us to do as the French had done and exercise a seven-year opt-out. He also called for a watertight opt-out, which would enable Ministers who were confident that a case was vexatious to ensure that a warrant was not executed against a member of Her Majesty's armed forces. Neither proposal was heeded.

Several cases that involve the Human Rights Act or the ICC are causing considerable anxiety, for example, that involving Colonel Mendonca and six other members of the Queen's Lancashire Regiment and the Intelligence Corps—the first brought against British personnel under the ICC. We heard today about the case of Trooper Williams. That raises suspicions in some quarters that the prosecuting authority behaved in a way more compatible with political than judicial priorities.

John Reid: I want to make a small technical, but important point. As the hon. Gentleman knows, I do not make decisions about how to prosecute. I have neither authority nor accountability for them. Nevertheless, we should be accurate. The charges have not been brought against the soldiers whom the hon. Gentleman named or referred to under the ICC. The two pre-existing charges in English law have been brought under the International Criminal Court Act 2001, which is different. The two charges, which are inhumane treatment and manslaughter, already existed. They are English law charges that have merely been incorporated in the ICC Act as the latest relevant measure under which they could be brought.

Mr. Deputy Speaker (Sir Michael Lord): Order. I am sure that hon. Members are well aware of the position with regard to some cases. Some of them are under consideration and I am sure that both hon. Gentlemen appreciate that it would not do to be too precise in those matters.

Dr. Fox: Indeed, Mr. Deputy Speaker. Before you took the Chair, I was careful to say that I would answer a question that a Labour Member asked me but within the scope that I would be allowed in the Chamber.
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Perhaps the clash between the legal and judicial purists and the pragmatists is at its clearest in the abolition of the reviewing authority. There, the purist interpretation of judicial function comes into conflict with the traditional way in which service discipline has been upheld. On the one hand, it could be clearly understood that involving the reviewing authority in a purely judicial process could be perceived as anomalous. Indeed, that view has been presented on several occasions—certainly, the European Court holds it.

On the other hand, the Select Committee drew attention to the fact that the reviewing process contributes to the efficient running of service disciplinary procedures, and acts in the interests of promoting justice. There is certainly no case for believing that the reviewing authority is detrimental to the interests of service personnel; it can reduce sentences but not increase them, so there is no concept of double jeopardy. The Government must decide whether to pander to the judicial purists or to maintain a system that has worked particularly effectively in the past.

I shall now come to other aspects of the Bill. The fact that there has been an increase in the number of joint units commends itself to a unified disciplinary code and a tri-service Act. This is the greatest justification for the Bill. Frankly, the alternative—the appointment of separate commanding officers for the different services—could lead to inconsistency and disparity in the treatment of individuals, although it is also worth pointing out that when that happened in the Falklands, for example, commanders in the field were able to work in a constructive and practical way to resolve the issues.

On commanding officers' powers, there clearly has to be a compromise between the Army and the RAF on the one hand and the Royal Navy on the other. That will mean a change in the operational conditions for all concerned. As the Secretary of State pointed out, it will mean a reduction in the summary powers of naval commanding officers, and a concomitant increase in those powers for commanding officers in the Army and the RAF. We are concerned, as was the Select Committee, to ensure that those commanding officers are given the appropriate training to ensure that they make responsible use of their new powers. A system of revision must be undertaken to ensure that discrepancies do not arise in the execution of the new powers.

It is important that, as far as is possible, the commanding officer has ultimate authority over the unit, and sufficient latitude to enable him to deliver operational effectiveness. The commanding officer is at the centre of the system of discipline and is responsible for the behaviour of those under his or her command. It is the knowledge that the CO has the power to dispense summary justice that helps to mould a unit, as well as the leadership to which the Secretary of State referred. The CO's dispensation of justice is a key means of commanding respect, which is part of that leadership. Given the increased number of cases facing the Royal Navy, it is also important, in a practical sense, that expeditious processes result in minimal disruption as a result of the increased number of courts martial that will inevitably happen, especially when witnesses are required who are currently serving on one of Her Majesty's ships. I hope that the Minister will be able to deal with that point in his reply this evening.
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The introduction of a single prosecuting authority is a sensible move in the interests of efficiency, as it will bring the structures of authority in line with the changes in tri-services rules. Likewise, a unified courts martial system is appropriate, with the support authorities also being brought into alignment. We have one concern, however, about the unified courts martial system, and perhaps the Secretary of State could deal with it now. It relates to the Government's almost baffling refusal to allow randomly selected panels.

Most of us in this country believe that randomly selected juries underpin our judicial system and guarantee independence in the operation of the court system. The panel for a court martial being chosen rather than selected on a random basis will create an unnecessary hostage to fortune for those who wish to portray military discipline as having the potential to be influenced by other interests. A randomly selected panel would be a strong bulwark against that false charge being made by those who want to see further interference in military disciplinary procedures. I hope that the Government will consider this matter constructively, and an early answer would be greatly appreciated.

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