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“The matter could not, because of the actions of the commanding officer, be dealt with by way of court martial. It was referred to me to consider further action.”—[ Official Report, House of Lords, 7 April 2005; Vol. 671, c. WS 92.]
The then Under-Secretary of State for Defence, the hon. Member for Islwyn (Mr. Touhig), commented:
“Discipline is essential and we depend on service law to enforce it”.
Astonishingly, on the basis on that one case, which was subsequently thrown out by a court martial, the ancient protection for our armed forces is to be thrown out lock, stock and barrel.
It is extraordinary that there is such a vigorous programme of trying to bring prosecutions against members of our armed forces on the basis of a very small number of cases of abuse. That is happening to such an extent that the Judge Advocate-General made much-publicised comments last autumn when the case against soldiers from 3 Para was thrown out at the beginning of the court martial.
The second strand of my argument relates to the specific circumstances of Iraq. Sadly, in time, al-Qaeda and others that provide plenty of networking will no doubt read across those circumstances to Afghanistan.
With clause 116, the Government are essentially opening up a fresh route by which organised terrorist enemies may attack our armed forces, although they bomb and shoot our armed forces at the moment and try to set fire to their vehicles. The clause effectively guarantees that if false allegations are brought against members of our armed forces, they are bound to be considered seriously all the way up the system. Let me quote Lord Boyce again:
“The Armed Forces are under legal siege ... They are being pushed by people schooled not in operations but only in political correctness.”—[ Official Report, House of Lords, 14 July 2005; Vol. 673, c. 1236.]
Those are damning words indeed from an outstanding head of his profession.
Mr. Kevan Jones: As the hon. Gentleman says, Lord Boyce has spoken in another place about the legal entrapment of our armed forces. He has also written articles about the matter. When he gave evidence to the Select Committee, I asked him whether he could come up with examples of that. He said:
“I do not have any which I can give to the Committee, Chairman.”
Does the hon. Gentleman know of any factual cases, because Lord Boyce clearly does not?
Mr. Brazier: I will give the Committee an example now. I have the greatest respect for the hon. Gentleman who, as a member of the Defence Committee, takes a close interest in the armed forces. I would like to be able to cite the full circumstances of the case, but I am not in a position to do so. Although several hon. Members might choose not to do so, the Committee will have to take my word that I am talking about a real case. A serving officer has given me the background facts about it, but I will have to describe it in fairly general terms because the individual victim does not want to be identified.
The case involved a soldier who had allegations brought against him in Iraq of a serious sexual assault on a female. His immediate officer and, subsequently, commanding officer examined the allegations. The allegations were supported by witness statements that were so grossly contradictory that it was absolutely inconceivable that the Crown Prosecution Service in this country would have taken them seriously. We should remember that only a tiny proportion of even rape allegations—the allegations were of not a rape, but a nasty sexual attack—come to court in this country. The commanding officer took the view that the allegations were clearly malicious and that it was impossible to reconcile the contradictory stories.
We should remember that the case took place against the background of Field Marshall Lord Inge’s comments that British lawyers in Iraq are actively hawking for business and reminding Iraqis that they can get money if they can bring such cases. The commanding officer was told that if he dismissed the case, another route would be found, as happened in the Trooper Williams case, and that that would merely create much more serious difficulties further down the line. The case took more than a year to come to court
martial. In the process, the soldier’s life fell apart, as did his marriage. We should be very worried that Field Marshall Inge, a former Chief of the Defence Staff, is saying that British lawyers in Iraq are actively hawking the fact that there is money available for Iraqi citizens who can bring successful cases against British soldiers.
Our armed forces are under colossal pressure. We hear from week to week and month to month about members of the armed forces being killed and desperately seriously wounded. We hear of people having mental breakdowns and mental health problems, too. Those people are under colossal strain as they face a ruthless and largely invisible terrorist enemy. Effectively, we are providing a Trojan horse for an organised and extremely well-briefed enemy by removing the legal safeguard.
In Select Committee, my hon. Friend the Member for Aldershot tried not to keep the full safeguard, but simply to put a much more modest one in its place. He won support for his amendment from Liberal Democrats and one Labour Member. There was a dead heat when there was a Division in the Committee on the matter. We cannot reopen the debate by means of an amendment today, but I hope that hon. Members will vote against the clause so that the other place may revisit the matter.
Mr. Kevan Jones: I support clause 116, the matter having been rehashed for many hours in Committee. I usually listen to the hon. Member for Canterbury (Mr. Brazier) and I have a lot respect for him, but he has fallen into the trap that, unfortunately, a lot of people have on this clause. The myths that are being perpetrated by former members of the general staff are not doing them any credit.
The hon. Gentleman referred to Lord Boyce. I would like to take a little time to remind the Committee of exactly what he said in the Select Committee. It may be easy to say in the comfort of the Chamber or in a newspaper that our armed forces are in a legal entanglement and cannot operate anywhere because lawyers are looking over their shoulders, but I deal with facts and I have tried to find examples of cases that have been so disproportionate in their effect that it would endanger the way we operate. I have not found one yet. I will refer to the case that the hon. Gentleman mentioned in a minute.
I pressed Lord Boyce on the issue. I asked him:
“When you were operational were you aware of any situations which hindered the chain of command? Do you know of any examples?”
“I commanded from the age of 28, from lieutenant through every rank up to admiral, but fortunately most of my time in command was before the culture we have today started to become as pervasive and intrusive as it has done. I personally do not ever recall being troubled by that sort of compliance.”
People who know me know that I would not leave it there. I said to him:
“You have said again ‘this culture that is there’... It is easy to say”.
I then asked him whether he could find any concrete examples. He replied:
“I do not have any which I can give to the Committee, Chairman. I have to say what I have is hearsay but I am aware there are lawyers out there who are looking for business and I believe encourage the sort of litigious cases that we see.”
I am sorry, but I find it very irresponsible for a former chief of staff to put forward innuendo. He could not come up with any concrete examples of our armed forces being ensnarled by legal restraint.
I have heard that there are lawyers ambulance- chasing for cases in Iraq. I will condemn them out of hand if there are such individuals, but please come forward with examples. Lord Boyce did not do himself any favours in not being able to come up with hard facts. He relied on innuendo and, by his own admission, on hearsay.
Mr. Don Touhig (Islwyn) (Lab/Co-op): I remember the questioning that my hon. Friend pursued in Committee. Does he remember when he pressed Admiral Lord Boyce about suggestions that our forces were now risk-averse? I commend to the Committee Lord Boyce's response:
“I am sure that we all could play a better role in trying to dampen down this particular worry, and people like myself who are sometimes standing up and speaking in the House of Lords debates and so forth perhaps need to re-look at how we are saying things in order not to fuel anxieties of that nature.”
Mr. Jones: I am grateful to my hon. Friend for that intervention. I totally agree with what he has said. Lord Boyce and others need either to shut up or to come up with actual facts. They are in danger of perpetuating myths not just in newspapers but to front-line servicemen, who think that there is some constraint there when there is not. I have first-hand experience of talking to soldiers in Iraq, where that mythology is seeping through. If that is what Lord Boyce and others are doing, they are doing modern-day servicemen a great disservice.
The hon. Member for Canterbury said that the commanding officer’s right to dismiss a charge was an ancient protection and a legal safeguard. I amsorry, but I do not see it as either. I think that theclause will strengthen the role of the commanding officer.
Commanding officers can already, if they wish, bring in the police to investigate and take advice on cases. I spoke to service police during the Select Committee’s visit to Cyprus. They rightly made the point that early investigation and collection of the facts lead to less delay in ensuring that frivolous and vexatious cases do not go any further—although I accept that in Iraq people are dealing with situations that are very different from incidents in a barracks here, in Germany or in Cyprus. However, I think that the clause will strengthen the role of the commanding officer in being able to draw upon the expertise of service police to ensure that the facts are kept together very early on. One of the reasons why we will never get to the bottom of what actually happened at Deepcut and those four deaths is that vital evidence was not preserved at an early stage to allow the real truth to come out.
7.15 pm
Mr. Brazier: I wonder whether the hon. Gentleman has read the explanatory notes. As the clause is quite complicated, let me give him the wording from the Government's own explanatory notes:
“a service policeman who considers that there is sufficient evidence to charge the person with a Schedule 2 offence (i.e. the most serious offences) must refer the case directly to the DSP.”
He is not allowed to go to the CO first. The word “directly” could not be clearer in that context. It cuts the CO right out of the loop. The case to which I referred was very much a vexatious case. The court martial dismissed it very quickly, but during the delay that took place, which would not have happened if the CO had had their way, the man’s marriage fell apart and his life fell apart.
Mr. Jones: There is no excuse for delay either in a military court martial or in a civil court of law, but I disagree with the hon. Gentleman. In such cases, if the service policeman gets the evidence together and investigates the case—the one cited by the hon. Gentleman sounds very serious—and it is not thought that there is a case to prosecute, it will not get to the court martial. It may be easy to dismiss this measure flippantly, but I think that it protects the commanding officer. In the Trooper Williams case, would we have got to where we were if the evidence had been brought together at an earlier stage? I do not think so. I agree that early collection of the facts and evidence is vital in these cases to stop delay. Delay does not add to justice and it leads in some cases to the terrible outcomes to which the hon. Gentleman referred. If we do not have this measure and have a situation where a commanding officer can dismiss the case, that will leave the commanding officer open later to all types of accusations that he is covering up for his subordinates and others. I am not suggesting that that happens in any case, but they could be open to that accusation. If they have the police’s evidence and involvement, it gives that protection at that stage.
Mr. David Burrowes (Enfield, Southgate) (Con): I know that the hon. Gentleman would wish to take an evidence-based approach. Where is the evidence that the present law is broken and should be fixed? The position was amended by Army regulations on 29 July 2004. The amendment states:
“Where a commanding officer considers that he may wish to exercise his statutory power to dismiss a charge under this provision he should first consult with his higher authority who in turn should normally seek”
other views. Where is the evidence that those regulations are broken and should be fixed? He refers to Trooper Williams, but can he refer, to cases that show that we should break with the current regulations, which seem to serve the Army well and help to retain the integrity of the commanding officer? I asked the hon. Member for Islwyn (Mr. Touhig) the same question in the Select Committee, and am still waiting for an answer.
Mr. Jones: The Bill is about updating our laws. The year 2006 is very different from 1955. Today, we are far more litigious. There are far more questions about the way things happen. The clause will ensure that a commanding officer can have confidence that once an
investigation takes place, the facts will be brought together and they will be dealt with. If we do not have that, we will have more cases like that of Trooper Williams.
There is a naivety in the press in looking at some of the Iraq cases. Having spoken to investigating officers on our visit to Iraq, I accept that it is difficult to gather evidence and information in some situations. Even in those cases, however, it protects the commanding officer and the accused if evidence is gathered early and if things are not dismissed out of hand, otherwise there could be accusations of a cover-up. Clearly, there was no such cover-up in the case that has been raised.
Patrick Mercer: I am interested in the views of the hon. Gentleman, whose sound Nottinghamshire logic shines through. It is a few years since I was a member of the armed forces, but even in my day the commanding officer would have been extremely foolish if, after a schedule 2 offence, he did not immediately refer to his senior and then call in the Royal Military Police special investigations branch. I do not know of any instance, either in barracks or on operations, in which a commanding officer did not do so.
Mr. Jones: I defer to the hon. Gentleman’s experience, but that is best practice. There may be cases in which the commanding officer does not refer to his senior, so the provision provides important protection for him. Throughout our evidence-taking sessions and on our visits to establishments both in the UK and abroad, the chiefs of staff and commanding officers did not suggest that there was a serious problem. Former chiefs of staff and the Conservative party have difficulties with the proposal and there have been efforts to perpetuate the myth that the Bill interferes with the legal process and the command structure of the British armed forces. Clearly, it does not do so. As the hon. Gentleman said, I usually deal with facts, and it is important that we do not allow irresponsible comments by people who should know better to damage the Bill.
Sarah McCarthy-Fry: I concur that on our visits it was plain that this was not something about which commanding officers felt strongly. However, I was told about an incident—I think it was the Trooper Williams case—in which the commanding officer acted exactly as the hon. Member for Newark (Patrick Mercer) proposed. He consulted lawyers and then decided that there was not a case to answer. That action was taken very quickly, and subsequent advice was that the original advice to the commanding officer was incorrect. By then, however, it was too late and there was no other way for the matter to be investigated, which led to the unfortunate result that Trooper Williams was prosecuted in the civilian courts, which no one wanted. That is why the protection has been included in the Bill.
Mr. Jones: I am grateful to my hon. Friend.
The measure allows the commanding officer, in certain cases, to submit evidence and information in mitigation. There is not a problem, and we did not take any evidence from service chiefs or commanding officers, either here or abroad, to suggest that it was. Former service chiefs could not provide any examples.
Mr. Brazier: The hon. Gentleman said that the commanding officer would be able to submit evidence. I accept that he could submit evidence to the court martial, but the clause rules out a compromise whereby he could submit evidence before the matter proceeds to court. The word “directly” makes it clear that evidence must be submitted before the commanding officer has had an opportunity to have his say.
Mr. Jones: I am sorry, but the hon. Gentleman is not correct. As I understand it, the commanding officer could submit mitigating information to the prosecuting authorities before a decision was made to proceed with a case. That would prevent circumstances that were highlighted earlier from arising.
Mr. Gerald Howarth: Where does the Bill state that?
Mr. Jones: I think that it was in the evidence that we took, and it was one of the recommendations in the final Select Committee report, to which the hon. Gentleman agreed.
Mr. Howarth: The hon. Gentleman has made an assertion that the commanding officer may make representations. Can he tell the Committee where the Bill states that? The Bill makes it perfectly clear that there is a duty on the service policeman to report to the director of service prosecutions. It is no good the hon. Gentleman looking at the report—he should look at the Bill and tell the Committee where it makes provision for the commanding officer to make those representations.
Mr. Jones: I shall read paragraph 50 of the report to which the hon. Gentleman agreed:
“Lord Boyce advocated a requirement that the Commanding Officer write to the prosecuting authority describing the context of the incident. We debated whether it was necessary to include such an express duty or a permissive provision in the Bill. In the Standing Committee phase of our deliberations, the Minister argued that Commanding Officers were already entitled to make the relevant authorities aware of any mitigating factors, including the military context, and that a statutory provision would introduce delay into the process.”
The Committee made the following recommendation:
“We emphasise the importance of Commanding Officers exercising their responsibilities to inform the prosecuting authorities of any relevant mitigating factors and the context in which events occurred.”
Mr. Touhig: In a debate in the Select Committee, I told the hon. Member for Aldershot (Mr. Howarth):
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