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Clause 36

Inaccurate certification

Question proposed, That the clause stand part of the Bill.

Mr. Gerald Howarth: The clause deals with the inaccurate certification of equipment. We are concerned that the Government have not looked adequately at the discrepancy in the application of the offence between the Navy and the RAF on the one hand and the Army on the other. The Bill makes it an offence to certify inaccurately naval and air force equipment but not Army equipment.

My hon. Friend the Member for Salisbury (Robert Key), who raised that point in the Select Committee, apologises for not being at the debate. He is not in the Chamber for good and bad reasons; the good reason is that he has had the operation that he has wanted for many months. I am sure that all Members will wish him a speedy recovery and highly increased mobility. I suspect that he may be watching our proceedings, so we can convey those good wishes instantly.

In the Select Committee, the hon. Member for Islwyn (Mr. Touhig), then the Under-Secretary of State
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for Defence, said that my hon. Friend had made an important point. The hon. Gentleman said:

He clearly wanted to hand that task to the Under-Secretary of State for Defence, the hon. Member for West Bromwich, East (Mr. Watson) as an opening coup, so that he could deliver some satisfaction to the Opposition. I hope that the Minister will consider that point.

If we do not encompass Army equipment as well, someone who fails to certify an air-to-ground missile accurately could be put on a charge, but someone who fails to certify a ground-to-air missile adequately would not have committed an offence. It is a small point; but, none the less, as we are reviewing all the legislation in this respect, we ought to take the opportunity to try to sort it out if that is necessary.

Mr. Watson: Yes, I read the transcript of that debate, and it is something of an ankle pass. Let me describe the clause. It will preserve the offence that is contained in the service discipline Acts. The offence is committed where a person who is subject to service law makes or signs a relevant certificate without ensuring its accuracy. It is not necessary that the certificate contains a mistake; it is sufficient that a person makes or signs it without ensuring its accuracy. The purpose of the offence is to promote a systematic and thorough approach to safety checks. A relevant certificate is one that relates to any matter that affects the seagoing or fighting efficiency of any of Her Majesty’s ships or one that relates to any of Her Majesty’s aircraft or any aircraft material.

In relation to aircraft and aircraft material, there is no equivalent to the seagoing or fighting efficiency test that is applied to ships, because ships fulfil a wider role than aircraft, such as providing domestic accommodation for naval personnel. As a result, many checks connected with a ship are the subject of certification but are not safety-related. It would not be appropriate to catch such wider, non-vital checks under this offence, which is intended to promote and ensure safety. Given the particular role played by aircraft, all certificates produced in relation to them and their material fulfil a safety function.

To turn to the point about land-based vehicles that was made by the hon. Member for Aldershot (Mr. Howarth), the clause will not extend to other land-based types of equipment. Safety, promoted by a system of regular checks, is clearly very important in relation to such equipment. However, the implications of inaccurate certification in respect of ships, aircraft and aircraft material are viewed by all three services as being so crucial that a specific and separate offence continues to be merited.

Mr. Howarth: There is a hint of complacency in that answer, especially as I raised the issue of missile technology. Let us take, for example, a Rapier battery or a multiple-launch rocket system. Those are very complex bits of kit, and they can do just as much damage as a missile launched from an aircraft. As an
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aviator, I understand the importance of accurate certification of aircraft and their components and, to a certain extent, naval vessels, but there is a clear case that some of the equipment that the Army has in its arsenal today is of equal sophistication and equal lethality, and the result of the inadequate or negligent maintenance of that equipment can be just as devastating as negligence in respect of naval and RAF equipment. So I should like to ask the Minister to look at that again. Given that we are reviewing the whole law that relates to military discipline, I can see no case to leave out the Army. I am afraid that I am not persuaded by what the Minister has said. I do not intend to press the clause to a vote, but I am not really convinced at the moment.

6.45 pm

Mr. Watson: I take on board what has been said by the hon. Member for Aldershot. I read the transcript of the debate in the Select Committee, and as my predecessor undertook, I took the issue back to the Department, which felt that the consequences of incorrectly maintaining an aeroplane part could be catastrophic, so it merited an extra offence. However, I understand the point that he makes; I will take it back and talk to the three services.

Mr. Howarth: I am grateful to the Minister for doing that, and on that basis, I am happy not to push the clause to a vote.

Question put and agreed to.

Clause 36 ordered to stand part of the Bill.

Clauses 37 to 53 ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 54

Charges which may be heard summarily only with permission or by senior officer

Question proposed, That the clause stand part of the Bill.

Harry Cohen: Clause 54 relates to some of the other clauses that we have dealt with, but it gives me the opportunity to ask about children in the armed forces, by which I mean those under the age of 18 and how they will be dealt with under the Bill. We have just considered offences that may be dealt with at summary hearing. Indeed, clause 50 deals with the jurisdiction of a court martial. Clause 54 deals with charges that may be heard summarily only with permission or by a senior officer, and some of those charges will apply to the category that I have referred to—children.

International law—in particular, article 1 of the convention on the rights of the child, which entered into force in 1990, states:

We are one of the 192 countries that have signed that treaty, which came into force in May 2000, and we ratified the protocol on 24 June 2003. That protocol sets 18 as the minimum age for direct participation in hostilities, and my first question is whether that is the
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case with under-18s in our armed forces. Can they be involved hostilities? [Hon. Members: “No.”] I want to get a clear answer on that, because it has an important impact not just on an earlier debate but on the way that under-18s are treated. Presumably, if the hon. Members who shouted no are right, under-18s will not be subject to clause 54, which is all about being dealt with summarily by a senior officer. However, I should like to hear an explanation of that.

Before under-18s come into the armed forces, parental consent is supposed to be obtained from parents or legal guardians. Consent must be given freely by the youth and the parent or legal guardian, but are there any special arrangements for orphans or those who have been in care, or are they not accepted into the armed forces? I should like an answer in that respect.

My next point—I want to make four points in all, and this is my third—is whether there is complete equivalence between the way that under-18s are dealt with under court martial arrangements and in civilian criminal courts. I should like to get an explanation of that, because it is important that there should be a degree of equivalence. I note that there can be a period of detention and training followed by a period of supervision and I welcome that. That should be under the auspices of the armed forces. However, there is a quirky bit in the law. The Library tells me that if an offender breaches his or her supervision requirements upon release from custody, that can be dealt with only by a civil court, not a service court. I wonder why that quirky element exists. If the supervision is laid down by a court martial, it should be undertaken by the same people. They seem the obvious people to undertake that supervision. The Library also tells me that there are arrangements for those under the age of 15 who are persistent offenders. That is an interesting point. How do the armed forces deal with persistent offenders? Will they be subject to clause 54 and will a senior officer become involved in those cases?

My last point relates to the most serious offences, such as murder. In a civilian context, a judge would have a say, but we have a funny arrangement whereby the Secretary of State also has a say on terms of imprisonment and how those people are dealt with. That seems to apply to youths who commit offences of that sort, even though they are in the armed forces. I seek clarification on that.

Mr. Kevan Jones: On a point of order, Sir Michael. I have listened very carefully to my hon. Friend. May I ask for your guidance on the relevance of what he is saying to the clause?

The Second Deputy Chairman of Ways and Means (Sir Michael Lord): The hon. Gentleman echoes my own thoughts. The hon. Member for Leyton and Wanstead (Harry Cohen) is wandering generally around the clauses. Will he tell us not just which clause he is addressing, but which precise element of that clause?

Harry Cohen: I am talking about

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Some of those will relate to children—those under the age of 18. I would have thought that that was pretty plain.

The Second Deputy Chairman: Which clause is the hon. Gentleman speaking to?

Harry Cohen: I am speaking to clause 54, as I said at the outset, but I have said my piece. The matter was not raised at all in the Select Committee, but it is an important matter. I am not opposing how the Government or the armed forces deal with children, but I do think that the matter is worth commenting on.

Mr. Watson: Let me describe what the clause does before I try to answer my hon. Friend’s many specific points. The clause provides that eight further criminal conduct offences can be dealt with at a summary hearing, but only if the commanding officer has permission from a higher authority or is an officer of at least two-star rank. The eight offences are listed in part 2 of schedule 1 and include, for example, assault occasioning actual bodily harm and possession in a public place of an offensive weapon. Those offences cannot be dealt with summarily at present by Army and RAF commanding officers. The requirement to obtain higher authority permission before those charges can be heard summarily means that an officer senior to the commanding officer in the chain of command will always be involved in the decision to hear those more serious charges summarily.

To answer some of the points that my hon. Friend raised, jurisdiction over civilian children will not be affected by the clause, although those children who have their parents’ permission to sign up at 16 and beyond will be. We obviously try our utmost not to put in the front line those who are under 18. I will have to write to him about the point that he made about orphans. I suspect that their legal guardians could give permission, but I do not want to speculate about that. If I have missed out any of his points, I will read them in Hansard and respond as best I can.

The Second Deputy Chairman: Is the hon. Member for Leyton and Wanstead (Mr. Cohen) content?

Harry Cohen: Yes, I am.

Question put and agreed to.

Clause 54 ordered to stand part of the Bill.

Clauses 55 to 113 ordered to stand part of the Bill.

Schedule 2 agreed to.

Clauses 114 and 115 ordered to stand part of the Bill.

Clause 116

Referral of case following investigation by service or civilian police

Question proposed, That the clause stand part of the Bill.

Mr. Brazier: I welcome the opportunity to speak to the clause because it raises issues that go to the heart of the one really major defect in the Bill. I pay tribute to my hon. Friend the Member for Aldershot (Mr. Howarth),
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who fought his corner in the most doughty way—I should say not his corner, but the corner of the many people in the middle ranks of the armed forces who believe that a profound mistake is being made in the clause. He worked so hard in the Select Committee that that rare event, a tied vote, occurred. The amendment was not made only because of the Chairman’s casting vote. That prevents us from tabling that amendment to the clause in this Committee of the whole House. However, we have an opportunity to discuss the issues in a clause stand part debate. I hope that if we do not manage to reverse things here, they will be sorted out in another place.

It is a sombre time for the armed forces. Week after week we hear the Prime Minister at Prime Minister’s questions expressing sorrow at the deaths of more service personnel. I hope that it is in order for me to mention the death of Sarah-Jayne Mulvihill, who was educated in Canterbury and whose parents live just outside Canterbury. She was serving in the Air Force when she was killed, but she started her military service in the Territorial Army in the 3rd Battalion the Princess of Wales’s Royal Regiment in Canterbury. Those in our armed forces and their parents, wives, husbands and children look to the Committee to support them.

At this late stage, following the points made by my hon. Friend the Member for Aldershot, I seek to persuade the Committee to understand why the clause is so badly flawed. I want to look at it from two angles. First, I want to try to show in general terms the damage that it does to the way in which the chain of command operates, and secondly, I want to consider it specifically in the context of events in Iraq and, potentially, other theatres.

On the chain of command, Lord Boyce commented:

In the Select Committee, the Government made much of the support of the current chiefs of staff for the proposal, but any current or former chiefs of staff would say that they can only be as good as the chain of command beneath them. It is an old adage that a chain is as strong as the weakest link. All aspects—all levels—of the chain of command have to operate and have to feel confident in the system for it to work properly.

We should all be concerned at the news in the Sunday papers over the weekend that a group of officers appears to be in the process of setting up a staff association to represent independently the views of the middle ranks. I do not applaud that and I certainly do not blame the chiefs of staff for that, but the Government should ask themselves whether the habit that has grown up during the life of this Government of constantly publicising the views and role of the chiefs of staff in a way that would never have happened a generation ago is healthy for the armed forces. In the old days, advice to Ministers was treated as confidential.

The Government’s explanatory notes on the clause state:

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They go on to say:

Therein lies the rub. In plain English, the clause boots the commanding officer right out of the picture; it is not just that a commanding officer’s power to dismiss charges is being removed. In Select Committee, the Government refused a moderate amendment that would simply have allowed the commanding officer to be consulted, which was supported by the Conservatives, the Liberal Democrats and one Labour Member.

7 pm

There is enormous sympathy on both sides of the House for the work that our armed forces do. Imagine for a moment the position of a member of the armed forces. In a different context, I used to talk about a man who was frightened, tired and cold, but it would be more appropriate to talk about men and women in Iraq being frightened, tired and hot, which is not always the best framework in which to make decisions. The one safeguard that such people had in the past was the knowledge that before they could be charged with a serious offence, someone who really understood what they were going through—a commanding officer—would first have the chance to examine the situation and, if necessary, dismiss the charge. The clause not only removes that safeguard, but goes further by preventing service policemen from even consulting the commanding officer before sending charges forward.

A great deal was made in Select Committee about the Trooper Williams case. The Committee will recall that Trooper Williams stopped an enemy terrorist who was found to be carrying a large quantity of ammunition at a road block. When the man ran off, Trooper Williams, at some risk to his own life, pursued him and, eventually, shot him to stop him getting away. The commanding officer dismissed the charges against Trooper Williams. When the Attorney-General referred to that fact, he said:

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