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I suggest that we might have a bit more of a debate on this amendment. It takes account of concerns expressed in the House and the other place about keeping a commanding officer in the loop. It will mean that the Bill will provide that service police must notify the commanding officer when a schedule 2 case, or a case in prescribed circumstances, is referred directly to the Director of Service Prosecutions. In addition, the Lords amendment provides that when notifying the CO of the referral, the service policeman will be required to send him relevant documents. We have provided that the detail of the documents should be set out in regulations. They will essentially be the case papers.
Mr. Gerald Howarth: As the Minister indicated, the Opposition consider this to be one of the most important issues in the Bill. During the passage of the Bill in this place we tried to persuade the Government that it was necessary under the new arrangements to ensure that the commanding officer remained in the loop, in the event that the proposals as originally set out in the Bill were enacted.
Our concerns were that under the proposals originally put before the House by the Government, the commanding officer, having lost the right to dismiss a serious charge—that is, essentially, one of murder or rape—would be required on a serious charge simply to inform the service policeman, who would then conduct an investigation, instead of the investigation thatthe commanding officer would previously have undertaken, and that the military policemen undertaking the investigation would report to the Director of Service Prosecutions as to the nature of the investigation and whether he believed that there was sufficient evidence for the Director of Service Prosecutions to proceed.
Under those arrangements, there was no provision for the commanding officer to be kept in the loop. I pay tribute to the former Chiefs of the Defence Staff who took up the issue and batted with it in another place, together with the noble Lord Ramsbotham, the noble Earl Attlee and Lord Campbell of Alloway, all of whom, on any reading of the debates in the other place, made a significant contribution not only to the improvement of the Bill, but to the quality of the debate. By the way in which they conducted themselves, they demonstrated the virtue of having in the other place men and women able to bring to bear on debates such experience and expertise, which would not be available if we moved to an elected upper House. It is important to recognise the contribution made in the other place.
Much was made in the other place of the importance of maintaining the chain of command, which is essential. I shall attempt to set it out as I understand it, despite not being, as the hon. Member for North Durham (Mr. Jones) knows, a regular Royal Air Force man, for I had political aspirations and wanted to come to the House, and I was successful in that. The chain of command is an important issue because it goes to the heart of how the Army, in particular, is organised.
The Army depends upon men and women being prepared to take orders unquestioningly. In return for that unquestioning obedience to orders, the soldier
looks to the commanding officer for reassurance that in the event that, acting in good faith, he nevertheless makes a mistake, he will be supported. We were concerned about the original arrangements proposed by the Government because if a soldier faced a serious charge, the arrangements would have prevented the commanding officer from being properly consulted to ensure that he was able to provide the service prosecuting authorities with important background information and to make contact between the commander and the commanded. I make no apology for having sought to insist that we introduce the change, and I am grateful to the Government for accepting the case.
It is important to keep the commanding officer in the loop. Nevertheless, even with the change, I have reservations. I do not in any way impugn the integrity of Ministers or their advisers, but we are at risk, in this context and in others that we will discuss later, of undermining the chain of command. There was much talk of that in the other place. That is why the amendment was welcomed there.
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Mr. Kevan Jones: I am sorry if I have upset the hon. Gentleman this evening, but I agree with him on the amendment. Does he agree that when he and I and other members of the Select Committee travelled to Cyprus and spoke to investigating officers, it became clear that one of the most important aims was to protect not only the accused, but the commanding officer, and that the collection of evidence by service policemen at an early stage was a vital part of the process?
Mr. Howarth: I am happy to agree with the hon. Gentleman, with whom I was happy to share that trip. He is right. The efficient and speedy implementation of the procedures is essential, and the military policeman in whatever service has an important role to play. I was anxious to ensure that the commanding officer was kept in the loop.
I seek clarification on another aspect. The House will recall that there was a furore over the case of Trooper Williams, whose commanding officer dismissed a serious charge against him after taking legal advice, because some in the Army thought their
“failure to offer Williams for prosecution”
would become a cause celebre for pressure groupsand the media. Consequently, the Attorney-General assumed responsibility for the case and subjected Williams to a trial through the civil courts. Williams was acquitted, but it was widely held that a soldier should never again be put through that ordeal.
In the debate in the other place on these matters, the Attorney-General stated on 11 October:
“When the Director of Service Prosecutions considers a case and decides not to proceed with it . . . he will have the power to give a direction which would, in effect, bar any further service or civilian prosecution for the same offence.”
I am concerned to ensure that once that happens, that is closure and the civilian authorities will not be able to reopen the case as they did with Trooper Williams.
However, a few moments later in the debate, the Attorney-General said:
“So far as concerns action overseas, active service and operational circumstances, I have said . . . that I envisage that a civilian prosecution will take place only in exceptional circumstances. I have not said. . .that such a case will never be brought within the civilian system.”—[ Official Report, House of Lords, 11 October 2006; Vol. 685, c. 318-19]
There seems to be a contradiction. If the Minister is able to clear it up, I should be grateful. I am grateful to the Government for accepting this valuable and important amendment.
Nick Harvey: I shall not detain the House. I, too, welcome the fact that the amendment has been agreed in the other place and comes before us. It is right that the commanding officer should be in the loop, as the hon. Member for Aldershot (Mr. Howarth) put it. The amendment is better than the original form of the Bill and better than the status quo. It is essential for public confidence that the commanding officer ought not to have a veto on a prosecution, but it is entirely right that he should be involved and kept in the loop, so the amendment is welcome. I agree with the hon. Gentleman about the benefits of having people with a great deal of experience in the second Chamber of this Parliament, although nothing would prevent such people from standing for election if we moved to an elected Chamber.
Mr. Geoffrey Cox (Torridge and West Devon) (Con): I want briefly to refer to the point made by my hon. Friend the Member for Aldershot (Mr. Howarth) about the Attorney-General. I, too, would be grateful for the Minister’s clarification on the precise scope and nature of the Attorney-General’s discretion once the matter of a prosecution has been commenced within the military system. Clearly, once that has happened the Director of Service Prosecutions has the discretion to direct no further prosecution, but at what stage of the proceedings would the Attorney-General’s discretion enter the picture? Once the commanding officer had been informed that there was to be a charge under clause 118 and it had been referred to the Director of Service Prosecutions, would the Attorney-General have the opportunity to intervene and to switch systems from military to civilian? Precisely how far must the case have progressed in the military system before the Attorney-General is prevented from entering deus ex machina, as it were, and switching it to a civilian court?
Patrick Mercer: I think that I speak as the only Member present and probably the only Member of this House who has served as a commanding officer and been invested with the powers to deal summarily with soldiers under my command. Before I go any further, let me assure the House that I come from a line of infantry officers—solid working class men who won their commissions in the field in the Royal Lincolnshire Regiment and the Sherwood Foresters—and I was proud to carry on that tradition regardless of any apparent class barriers that Labour Members may bring up.
Mr. Kevan Jones: Your father was a bishop!
Patrick Mercer: Indeed he was, but he started as a fisherman’s son.
Madam Deputy Speaker: Order. We have had some latitude, but all hon. Members should concentrate on the amendment before us.
Patrick Mercer: Thank you, Madam Deputy Speaker.
During the earlier stages of the Bill, my hon. Friend the Member for Aldershot (Mr. Howarth) and I argued strongly that the powers of the commanding officer must be maintained above and beyond all else. We were particularly concerned about the Trooper Williams case. I argued, and would continue to argue, that it is crucially important for the commanding officer to have the power to dismiss charges when they appear in front of him in exceptional circumstances such as those posed by operations that occurred in relation to the Second Royal Tank Regiment in Iraq. However, it is clear that that argument is not going to progress any further.
I beg the Minister to understand the nature ofthe relationship between a private soldier—fusilier, guardsman, trooper, or whatever his rank—and the commanding officer who is responsible for his everyday conduct, his safety, the justice that is applied to him, and the way in which he, or she, lives his or her life. My experience is only of the Army, but commanding officers in the Navy and in the Royal Air Force face precisely the same problems and pressures.
I have been terribly critical of the Government’s tinkering with the regimental system and the destruction that they have wrought upon a system that has saved this country many times in the past. The feudal—I use the word correctly—nature of our regimental systems means that there is, or at least has been in the past, a very special relationship between the ordinary soldier, seaman or airman in the junior ranks who trusts his commanding officer implicitly and understands the background that he or she comes from, and the commanding officer who, vice versa, understands the backgrounds from which those soldiers, sailors and airmen come. I therefore warmly commend and thank the Government for having listened to the experienced voices in the upper House.
Mr. George Howarth: Broadly speaking, I agree with the hon. Gentleman. However, I think that the hon. Member for Aldershot (Mr. Howarth) would confirm that when, as a Select Committee, we spoke to serving soldiers, sailors and airmen, there was a feeling that on certain occasions commanding officers have not dealt with such issues even-handedly. I accept that in most cases they do, but there are exceptions, and we should not lose sight of the fact that that causes resentment.
Patrick Mercer:
The right hon. Gentleman is of course right. In all humility, which of us who has been in that position would say that he or she got their judgments right at the time? Certainly, I did not. I hope that most of the judgments that I made were correct, but I can think back with considerable regret on things that I got wrong. The fact remains that any commanding officer worth his salt involves the military or police authorities at a very early stage by rote, but
those investigating officers must—if the essential link of trust between officer and soldier, commanding officer and private is not to be broken—have the earof the commanding officer at every stage ofthe disciplinary process. I thank my hon. Friend the Member for Aldershot for his efforts to ensure that the amendment went through and I also thank the noble Lords for their wisdom in ensuring that the commanding officer remains inside this crucial relationship.
Before I close, I would like to say this to the Minister. I believe that over the next few weeks and months a number of legal issues will come to a head that will challenge yet again the relationship between officer and soldier. May I ask the Minister to listen closely to the advice given by the noble Lords on this particular issue and not to try to make further inroads into this crucial relationship—the bond of trust that exists between fighting men?
Derek Twigg: I welcome the support for the amendment and the considered comments that have been made—based, in the case of the hon. Member for Newark (Patrick Mercer), on considerable experience. I aim to deal with the concerns expressed in the debate.
I recognise the concern about ensuring that cases best dealt with by the court martial remain within the services system. As the Attorney-General explained in the other place, the Bill includes provisions to prevent a reoccurrence of the unfortunate case of Trooper Williams, to which the hon. Member for Aldershot (Mr. Howarth) referred, where a matter considered and excluded from prosecution in the military system was then considered within the civilian system.
Under clause 126, when the Director of Service Prosecutions has considered a case, he will be able to direct that there shall be no further proceedings in the civilian system as well as in the service system. The Attorney-General also recognised—I entirely agree—that only in exceptional circumstances would a case arising from operational circumstances be dealt with by the UK civilian courts. It remains possible, however, to envisage circumstances in which that might still be viewed as appropriate.
Let me give the House an example. While on operations abroad, perhaps during peacekeeping, a British soldier and some British civilians abroad are alleged to have committed murder. The Director of Service Prosecutions could look into relevant factors such as whether civilians were themselves subject to law and whether the offence related to possible other criminal activity in the UK. I can imagine that the DSP might want to seek the Attorney-General’s advice in such a case and the decision taken could be that it should be handled in the UK civilian courts. That is fully consistent, however, with the DSP having the decision in a case that he has considered on whether to preclude further proceedings.
On the hon. Member for Newark’s question about when the Attorney-General’s discretion arises, the prosecuting authority is free to seek his view and ask for a decision at any time before the prosecuting authority reaches a decision. If he decides not to prosecute, he makes a direction under clause 126.
Mr. Gerald Howarth: What we want to avoid is a repetition of the Trooper Williams case. We want to avoid the Attorney-General’s coming in and subjecting a soldier, sailor or airman to the civilian courts. Can we have some assurance that only in the most exceptional circumstances that would happen? I hear what the Minister says, but it is terribly important for it to be expressly stated—that once a case is heard in the military system, that is it. We need to be sure that the Attorney-General cannot then intervene and draw it into the civilian system.
Derek Twigg: I understand why the hon. Gentleman wants the matter to be clearly set out. I thought that I had done that in my preceding remarks but I confirm “exceptional cases” again. I hope that my explanation has provided some reassurance.
Mr. George Howarth: Is not it the case that, by definition, an exceptional circumstance cannot be described in advance?
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Derek Twigg: My right hon. Friend makes an important point. However, I emphasise my previous comments about exceptional cases. They are on the record and I hope that the hon. Member for Aldershot will accept the reassurance in the good faith in which it is given.
Derek Twigg: I beg to move, That this House agrees with the Lords in the said amendment.
Madam Deputy Speaker: With this, we may discuss Lords amendments Nos. 21 to 24, 35 and 36.
Derek Twigg: The amendments are designed to ensure that the court martial’s powers of sentencing are restricted to that of the CO so that there is no disincentive to elect for trial.
Lords amendments Nos. 21 to 24 agreed to.
Derek Twigg: I beg to move, That this House agrees with the Lords in the said amendment.
The commanding officer currently has a limit of £1,000 that he can award by way of a service compensation order. The Secretary of State can, by order, substitute the sum in the Bill. The amendment qualifies that so that he can do so essentially only to increase the limit in line with inflation. The amendment was tabled on the recommendation, which we were happy to accept, of the Delegated Powers and Regulatory Reform Committee.
Mr. Gerald Howarth: I am happy to acceptthe amendment, although it is curious that the Government will be locked into the figure of £1,000, as adjusted by inflation, for ever. Future circumstances may require an amendment, but I shall not argue the case now.
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