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Andrew Mackinlay: On the hon. Gentleman's point that it is easier to get a conviction in a court martial, I understand the need for the swift administration of justice in operational battleground situations, but when an incident occurs in a home base, the case should be proven beyond reasonable doubt.
Mr. Brazier:
The hon. Gentleman has made his point well. The standard of proof is, of course, supposed to be the same, but the case is decided not by a jury, but by a group of military officers. All the evidence suggests that it is almost impossible to bring a jury case against soldiers in an active theatre, because most members of the jury would not be willing to take the risk of going out there. The system, which is designed to underpin the chain of command, is inquisitorial and makes it easier to get a conviction, but we have removed the safeguard of COs allowing such cases to proceed and introduced the 2001 Act, which means that a CO may become culpable
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when something, in which he may not have had a hand, takes place, merely because he has allegedly suppressed evidence.
The Bill goes against a basic, underlying principle in English life. Since the Magna Carta, one of the key principles of our jury system has been trial by one's peers. Who are the peers of a man or woman who has been sent into a combat zone, which may involve a hostile land, being outnumbered or, as the Secretary of State has said, the complicated situations created by modern asymmetric warfare? The answer must be, "Other members of the armed forces." The current system involves a random selection of members of the armed forces being put on to a panel, which provides a degree of independence that echoes a jury trial, albeit within an inquisitorial system. The Bill will introduce a standing court martial, which, bluntly, will consist of a group of case-hardened officers who conduct such cases all the time—it may be that such officers have not seen active service for some time, if they have done so at all. It will make it easier to get convictions.
In a statement about the failure of the case against seven members of the Parachute Regiment, the Minister of State, the right hon. Member for East Kilbride, Strathaven and Lesmahagow (Mr. Ingram), said:
"This case has shown our determination to ensure that justice is done irrespective of the difficulties."—[Official Report, 7 November 2005; Vol. 439, c. 22.]
I think that he meant that justice is being done in a way which will appease left-wing elements in the media, who seem to think that our armed forces are responsible for a chain of atrocities. It is true that there have been a small number of genuine incidents in which there has been genuine public concern, but it should not have led to a situation in which our forces feel under "legal siege"—not my words, but those of a former Chief of the Defence Staff speaking in another place in July.
The Bill includes many measures, some of which are welcome, but three major changes have occurred or are occurring to the balance of probability of a conviction: first, the Bill removes the safeguard of scrutiny by the CO, the man who really understands the situation; secondly, the 2001 Act specifies that if COs do not process the papers on a case, they may be done for war crimes; and thirdly, the Bill contains a ridiculous proposal to move away from a proper selection of officers for a court martial towards the ghastly idea of a kangaroo court, which a standing court martial could easily become, of officers who do nothing else over a long period.
The Government should have heeded the warnings that the six chiefs of staff gave us in July about the pressure that the armed forces feel under from the legal profession at a time when they are being worked extremely hard and facing considerable dangers in Iraq and Afghanistan. It is extraordinary that the Government should introduce a Bill that will increase those pressures and make it much easier for members of the armed forces doing their duty in Iraq to be convicted of offences that in some cases are not even recognised in any previous form of English law.
This is a bad Bill. I hope that we manage to achieve some changes in Committee, but if not, I sincerely hope that we will vote against it on Third Reading.
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8.29 pm
Andrew Mackinlay (Thurrock) (Lab): I congratulate the architects of the Bill, who have brought before Parliament a most interesting measure that is worthy of great study. It is highly appropriate to subject it to the innovative Select Committee procedure for examining legislation. Although the House has had that option for some time, it has not used it very often. I hope that this Bill will be pioneering in the sense that it becomes the usual practice, instead of the exception, in dealing with legislation.
Every speech by colleagues—I use that word deliberately because I want to include Members on both sides of the House—has contained some stimulating thoughts. I cannot recall a debate in which I have agreed substantially with so many aspects of the cases that Members have advanced. Their contributions have been not only cogent but fair and legitimate, and they will be good material for the Select Committee procedure that will follow this Second Reading.
I want to raise an issue that is new to this debate. Parliament is very conservative—in a non-partisan sense—about having a representative body for members of our armed forces. I am not suggesting a trade union or a body like the Police Federation, but a unique representative body that can do several things, including giving advice, counsel and support to individual members of our armed forces when they feel in some difficulty. There is a manifest need for that. I am as certain as night follows day that one day this House will enact such legislation, and that after a short space of time people will look back in amazement and wonder what the fuss was about. Of course, that Bill would have enshrined in it safeguards to protect the operational decisions of commanders in conflict situations. That would be writ large and understood. Such a measure would be modernising and sensible, and it will inevitably come. I regret that the main parties do not see it as an innovation that would put us in front of many other armed forces in ensuring that the interests of our servicemen and women are protected.
Such a body would benefit the Government by being a champion of our armed forces in terms of promoting their function, role, ethos and doctrines within the United Kingdom while helping to project them around the world in the positive way that, mercifully, they have always largely maintained. I wish we could begin to contemplate a representative body in addition to an independent complaints body. Indeed, the former could make representations to the latter.
An area that has been omitted from the Bill and has not been discussed, but which we cannot long avoid discussing in the context of military discipline, is the increasing interface of our armed forces with large numbers of people working for private military companies. Only a few years ago, they were relatively few in number and it would have been considered extraordinary that Her Majesty's Government were hiring private military companies.
When the Labour Government took office, the issue first came up in the context of our support for the Government of Sierra Leone. There was an interface with Sandline and other related companies that had the potential to cause embarrassment not only to the Government but to our armed forces, especially when
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the Royal Navy helped to repair a Sandline helicopter. The ground rules need to be clearly set out for commanders and those who have to make decisions, especially when they are being coaxed, encouraged or given a nod and a wink by the Ministry of Defence or the Foreign and Commonwealth Office to work alongside—and, I fear, collaborate with—private military companies. I am uncomfortable with that.
A few years ago, the Government produced a Green Paper on private military companies. The Foreign Affairs Committee said that such matters should be regulated and that there should be an equivalent of end-use certificates for private military companies. We expressed our concern about rules of engagement and circumstances in which private military companies work alongside or with our regular armed forces.
The other great fear is that Governments—including our Government, albeit unintentionally—are attracted by private military companies because they give an opportunity of denial if things go wrong, or in the case of what would otherwise be perceived as a military offence, such as bad conduct. Those companies also have a capacity to dissolve themselves so that it is difficult to call anybody to account subsequently.
Newspapers reported in the past month how the United Kingdom Government hire and have contracts with enormous numbers of private military companies—I call them mercenary soldiers but I do not want to be provocative—and the costs involved. As sure as night turns into day, some commanders will soon be greatly embarrassed by the fact that, because it is the will of Her Majesty's Government—namely the Ministry of Defence and the Foreign and Commonwealth Office—they have had to work alongside those people.
Unless and until we start to draw up strict ground rules, there are all the ingredients for at least embarrassment and for decent people facing charges and falling foul of the International Criminal Court Act 2001, with which I shall deal shortly. I did not agree with much that the hon. Member for Canterbury (Mr. Brazier) said about it, but there is a danger of people being embarrassed by those whom they have to work alongside, who are unaccountable and not subject to military discipline. That is a matter of grave concern. Perhaps those who serve on the Select Committee that considers the Bill will at least scratch the surface of the subject in their deliberations.
Many hon. Members referred to various clauses. I was interested in clause 25. It is worth drawing the attention of the House—and the royal household—to it. It states:
"A person subject to service law commits an offence if he misapplies or wastes any public or service property."
That provision sets out all the punishments that would apply if there were an abuse of military material and equipment. That sanction and warning, which is on the face of the Bill, applies to all military personnel from the humblest to those of royal rank.
I listened carefully to the welcome from hon. Members of all parties for bringing together the military law of the three services. It occurs to me that, if and when the Bill is enacted, there will be a compelling case
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for our reviewing the service police. I am very much a traditionalist. Indeed, I am displaying tonight a small memento of the Essex Regiment. I had to leave the Chamber briefly when the antique badge was presented to me by Mr. Blake Perkins from the United States earlier this evening. I said that I would be proud to wear it during this debate. That regiment is important to me, as I know it is to you, Mr. Deputy Speaker. I tell the House this story only to emphasise that I am a traditionalist.
I want to maintain the Royal Military Police and the police services of the Royal Air Force and the Navy. However, there are some parallels with the three nursing services of the armed forces, in that the police forces are badged separately but should, operationally, increasingly work together. There would be obvious benefits from economies of scale and from the use of new technologies and the need for specialisms in any police investigatory service. Logically, we should be thinking in terms of an integrated service police force. The police forces should be separately badged, and continue to enjoy the traditions that have endured over the centuries, which should be preserved, but we should bring the separate forces together in much the same way as we have with the nursing services.
I listened carefully to the hon. Member for Canterbury, and I think that his concerns about the International Criminal Court are wrong. He seems to be genuinely confused about the court—an institution that is ever so important—which is embryonic and fragile but which will prove, over the years, to be a great force for good and a sanction against people who are not subject to military law. In relation to our own armed forces, I would remind him that, because we have codified law, both civil and military, it does not apply to us. It provides a catch-all jurisdiction to ensure that some of the bandits around the world, who are not subject to a military code of law, do not get away.
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