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Mr. David S. Borrow (South Ribble) (Lab): I am grateful for being called to contribute to this debate. I apologise to the Secretary of State and the hon. Member for Woodspring (Dr. Fox) for missing most of their contributions as a result of parliamentary business. The two statements affected my timetable this afternoon.

I welcome the Bill and the mechanism for scrutinising and eventually debating it. Several Parliaments use a similar mechanism—Select Committee scrutiny takes place first, then the people involved in that process engage in detailed clause-by-clause scrutiny. If we used that mechanism for more legislation, we would achieve more informed debate in Standing Committee than is traditionally the case. I welcome the way in which the Bill brings together the disciplinary activities of all three services. I was interested to see how the three chains of command have been brought together and to learn what will be dealt with by summary action and what by court martial. Different charges will be dovetailed together.

The right hon. Member for North-East Hampshire (Mr. Arbuthnot) pointed out the effect on naval discipline of the introduction of many more courts martial and the subsequent increase in work load. In Committee, we must look in detail at individual offences and how they will be brought together across the services. I do not wish to judge at this stage whether the Bill, as a result of the consultation with the three services, has got it right. Detailed scrutiny will be required in Committee to ensure that punishments and the way in which each offence is dealt are appropriate. One of our major tasks in Committee will be to ensure that the work behind the scenes to pull the three codes together has been done correctly.

The Bill, together with my eight and a half years' experience as an MP, convinces me about the extent to which the armed forces are separate from the rest of us. We accept that they have a different code of discipline and are subject to different mechanisms in the treatment of complaints and grievances. Both concerns are at the heart of the Bill and we must consider whether we are moving from the traditional procedures of the armed forces towards what is acceptable in civvy street. I have spent two periods with the Army as part of the armed forces parliamentary scheme and I have dealt with a great deal of case work that involved the Ministry of Defence. Throughout, I found it incredibly difficult to persuade the armed forces to accept that a complaint is legitimate. My office tells me that the most difficult Department to deal with is the MOD. It is hard to secure any movement at all from it whenever we make a complaint on behalf of a constituent. That ties in with my off-the-cuff chats with service personnel in previous years, so I am worried about whether we have achieved the right balance of independence for the complaints and grievance system.
 
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It is not simply the main issues—the Deepcut inquiry, bullying and so on—that have concerned Members over the past few years, as the problem extends all the way down the line. Service personnel cannot join a trade union, so we cannot expect them to use the normal grievance procedures used by people who go to the office at 9 am and leave it at 5 pm. In civvy street, we can go and have a grumble, and there are ways of dealing with such problems. There is a chain of command for service personnel that means that we cannot expect complaints to be dealt with in the same way. Sometimes, the military go too far the other way, and it is easy for them to ignore legitimate complaints because of the sanctity of the chain of command.

On the major issues, I was not a member of the Select Committee that considered the previous Armed Forces Bill, but its views on the insufficiency of the mechanism that has been put in place for the independent consideration of complaints were reaffirmed by the current Select Committee. We should seriously consider expanding and enlarging that mechanism, but we must not lose sight of the larger issue so that those young men and women who join the services and believe that they are treated unfairly have a mechanism that will ensure that their complaints, even if relatively trivial, are dealt with legitimately. I often have the impression that it is easy to ignore such complaints and hide behind the chain of command.

The same problems that make it difficult to approach the civilian model when dealing with grievances and complaints apply to disciplinary and judicial procedures. It is a different world for someone who is on operations in Iraq or Afghanistan having to make split-second decisions under pressure and being scrutinised after the event for decisions made in stressful situations. Traditionally, people in the armed forces who know those pressures have made the decision about whether to prosecute and what are the appropriate procedures to use. In the past few years, however, military personnel have moved towards civilian standards regarding the acceptability of conduct. The hon. Member for Woodspring referred to that development when he asked whether we should pursue an idealistic or pragmatic approach to discipline.

A couple of incidents involving my local regiment, the Queen's Lancashire Regiment, are of concern. I am not questioning whether the right decisions were made, but in the Mackenzie case, the newspaper publication of fraudulent photographs put our armed forces at risk. The case has been dropped, but it is not clear whether or not anyone else will be pursued. At the same time, Colonel Mendonca of that regiment is being pursued, not under traditional military regulations, but under the International Criminal Court Act 2001. The case will be decided three years after the initial incident. Both cases, together with several others have affected morale in the services and whether service personnel believe that they are treated properly and are subject to a duty of care.

When the Bill is enacted, we should aim to ensure that military personnel have confidence in the process whereby they are judged and in how prosecutions are conducted. Bringing the prosecution services of the three services together, perhaps with additional resources, may result in a better quality process. The morale of the armed forces has taken a knock in recent years because of the confusion about whether they should be subject to civilian or military procedure. We
 
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should be clear about which approach we are taking. If we expect discipline to reflect the fact that service personnel are members of the military their complaints and grievance procedure should run parallel to that expectation. In the Bill, we need to achieve a balance between both those tracks, so that both are accepted as being fair and reasonable and adequately reflect the fact that servicemen and women operating in a 21st-century military service may have different standards and expectations from those of a 19th or mid-20th-century military.

If the Bill is supposed to update military disciplinary and grievance procedures from half a century ago, we need to reflect the modern aspirations and expectations of young men and women who serve in our military today. If we can do that, we can do a good job. That is what I hope will come out of the process. I am not an expert and do not know what that will properly involve, but I ask myself whether, at the end of the process, I will be able to sit in front of young servicemen and women and be sure that we have an updated, modern disciplinary, grievance and complaints procedure in which they can have confidence. If we can do that, the House will have done a good job.

My final brief comment is about whether the legislation should be renewed annually. I remain to be convinced—nothing that I have read or heard or that has been said in the Chamber so far this evening has convinced me—that there is any case to move away from annual renewals. I look forward with interest to the debates and contributions from Ministers in the weeks ahead.

8.11 pm

Mr. Julian Brazier (Canterbury) (Con): In reply to the Secretary of State's justified remark about my absence, may I make it clear that I left the House because I was summoned to the office of my new party leader? There is no announcement resulting from that; I am staying in the same position. I wish to make it clear that no disrespect to the Secretary of State was intended by my leaving a few minutes after an intervention on him.

I take a gloomier view of the Bill than the last few speakers, including two distinguished colleagues of mine. As we debate service discipline, it is important to remember that the grinding overstretch resulting from the four major entanglements into which the Government have taken our armed forces and from cuts in their manpower has led to an exodus of experienced people from the armed services, as well as a rise in the services divorce rate. The men and women who will be subject to the measure that we are debating have seen their pensions attacked when the whole of the rest of the public sector have seen their pensions protected. They have seen the burden of proof raised for compensation claims for injuries incurred on service. They have been infuriated by the Saville inquiry and the Northern Ireland (Offences) Bill.

Behind the Armed Forces Bill lies an ugly trend towards civilianising the military world. Military life, with its risks, hardships and requirements for stern discipline simply is not comparable to that of civilians. I listened with interest to the hon. Member for South Ribble (Mr. Borrow). He will not mind my saying that he ended on the fence. I share many of the concerns that he expressed. The military world is not the same as the civilian world.
 
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It would be wrong to disparage the entire Bill. I understand why we are not opposing Second Reading and there are a number of welcome elements. The service complaints panel strikes the right balance in dealing with issues such as Deepcut. We must not have another Deepcut. I agree with my colleagues' comments on the tri-service aspect as servicemen increasingly operate in joint units, although there is a question about some of the special requirements of some naval commanding officers, particularly submarine commanders.

I welcome the modest expansion of powers for the CO in the Army and Air Force regarding summary hearings for lesser offences. It is that aspect that makes other parts of the Bill so hard to understand. Evidently the Government comprehend, at least in part, the importance of the CO and such powers for maintaining not only discipline, but a sense of continuity and community. There is a unique bond between a commanding officer and his men. The strength of that bond underpins the remarkable feats that the House has come to expect of our servicemen and women. As Lord Boyce said on 14 July in the Lords debate on the legality of the chain of command,

Why limit that trust now by removing all the powers relating to more serious crimes? We all know why. The Secretary of State made it clear in his speech—the case of Trooper Williams. It is important to remember that that was at a time when there had been a small number of allegations concerning prisoners. It related to something that had happened not in a prison or in a camp, but at a checkpoint in a dangerous area and involved a member of the enemy who was found to be carrying ammunition. The case was initially dismissed by the CO on advice from the Army legal service because of a lack of evidence. The director of the Army legal service then referred it to the Attorney-General for possible trial in the civil courts. After protracted wrangling, the case was dropped by the Crown Prosecution Service following a long delay because of a lack of evidence.

The provenance of the case is disturbing, to say the least. In his statement on 7 April, the Attorney-General referred to the fact that

and continued:

That is in the context of recent remarks by the Under-Secretary of State for Defence, who I see in his place. He stated:


 
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In a sense, that is platitudinous. We would all agree with that statement. Did the Minister feel that he had to say it? Does he believe that British troops are less disciplined than other armies in any of the theatres in which they have recently operated? There are indeed a very small number of disturbing incidents involving prisoners in Iraq, but overall I believe our forces are the best disciplined in the world. Yet today they face a brutal enemy and an unprecedented blizzard of investigations and prosecutions—prosecutions brought about by Government policy and in which, in a number of cases, the Attorney-General has played a crucial role from the safety of his office in Whitehall.

The Williams case was a protracted, distressing and shameful assault on the reputation of a gallant soldier. It did not happen because his CO had the power to pursue the case but did not do so. It happened because the opinion of the CO was brushed aside in what many in the Army believe—rightly—was a political desire to charge and convict someone amidst all the allegations of human rights abuses in Iraq. Now the Government want to remove the authoritative opinion of the commanding officer, the man on the spot who shares the risks with his soldiers, the man who got it right in the Williams case, and hand that power to the Army legal service.

The Government have learned the wrong lesson. They are keeping the bath water and throwing the baby to the wolves. On 24 March—I quoted this in an intervention on the Secretary of State—the Adjutant-General wrote to the Chief of the General Staff and CIC Land, copying his letter to the brigadier, to inform them that he intended to write to the director of Army legal services to ask him to draw the case to the attention of the Attorney-General for the purpose of having resort to his jurisdiction. In that letter, the reason given was:

I have no intention of attacking a senior serving officer, but if I were a serving soldier, my blood would run cold if I heard that remark, which was first unearthed by Lord Campbell in July in another place.

The situation is being compounded by the International Criminal Court Act 2001, which my party rightly voted against. All hon. Members oppose war crimes, but the wording of the 2001 Act is so vague that senior officers can be held accountable for actions of which they had no knowledge, simply on the ground that they might have taken steps to prevent them. I do not intend to try your patience, Mr. Deputy Speaker, by repeating my recent speech on the workings of the 2001 Act in relation to the case of Colonel Mendonca, which is now sub judice.

I ask the courts to take into account the point that the 2001 Act works against the chain of command. The long-standing leadership principle in the British Army is that commanders delegate authority to their sub-commanders, let them get on with the job, trust them whenever they can and support them if things go wrong and they believe that their sub-commanders have behaved reasonably, which takes considerable moral courage. The ghastly news that General Peter Wall, who is a fine soldier by any standards, is being investigated
 
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for supporting one of his subordinates in such a situation under very difficult circumstances underlines the ghastliness of the 2001 Act.

Turning to the recent case against paratroopers from the 3rd Battalion of the Parachute Regiment, the case against seven members and ex-members was dropped, because the judge had concerns about the adequacy of the evidence and the integrity of the Iraqi witnesses—reportedly, the case cost £10 million of taxpayers' money. In the Lords debate on the legality of the chain of command, Lord Inge highlighted the fact that British lawyers were hawking no-win, no-fee arrangements around Iraq, promising taxpayers' money to those who would bear witness against British soldiers. So much for the deal, which the hon. Member for South Ribble has rightly emphasised, on the duty of care that we owe to our soldiers.

Why would the Government want to create a new legal apparatus and remove the power of responsible commanding officers at the same time as they are putting the Compensation Bill through the House of Lords? The Compensation Bill is a modest response to public concern about the pernicious and corrosive compensation culture, which often originates in the pursuit of money by a small number of lawyers and which destroys risk taking, personal responsibility and community spirit. It suggests to judges that they can—many of us want it to "require" judges to do this—consider the social harm of awards made against those who take responsibility.

The Armed Forces Bill, however, has the power to compromise the ability or willingness of our armed forces to take necessary action in theatres of action by removing their most important safeguard—the role of the commanding officer. For an individual soldier, the CO represents a trusted bulwark of understanding and common sense who takes account of the differences inherent in active service. Instead of being allowed to intervene, he is now threatened with committing a war crime under the 2001 Act, if he does not actively pursue a prosecution.

The Government have lost sight of the fact that a court martial system is an inquisitorial system, not an adversarial system like the civil courts. When a matter goes to court martial, it is easier to get a conviction than would be the case in a civilian court.


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