Armed Forces Bill |
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Clause 40 Incitement Question proposed, That the clause stand part of the Bill. The Chairman: With this it will be convenient to discuss new clause 5—Commanding or ordering a service offence to be committed—
Robert Key: It is a basic tenet of military discipline that soldiers obey orders. However, they must trust the people who are giving the orders and be sure that those orders are lawful. There has been a great deal of disquiet throughout the nation that a situation may arise where people in combat are not quite sure whether what they do when they pull the trigger is lawful or not. Some of the Committee were fortunate enough to visit Iraq and put that question to a number of people, and I was delighted to be told that there was no hesitation in the responses given to any of those hon. Members. Nevertheless, the new clause probes the point a little further. I want to ensure that men and women on the front line, who are trying to decide whether the orders they have been given are absolutely legal, can have complete confidence in their officers. One way of doing that is to create an offence of commanding or ordering a service offence to be committed. The new clause is intended to deal with a point about which my constituents and, I suspect, service families have fears. They want to be absolutely sure that no one put in harm’s way in the name of the people of this country is about to commit an offence if they do what they are told. They must be absolutely sure about that. It is as simple as that, and I hope that the Minister will be able to reassure the Committee. Mr. Touhig: It is an offence under the criminal law of England and Wales to incite someone to commit a criminal offence. The clause makes equivalent provisions in the Bill in respect of offences committed under service law. New clause 5 would introduce a similar offence in respect of service discipline, but limits it to circumstances where one person is in a position of authority over another and is therefore able to command or order them to commit an offence. As I said, under the criminal law of England and Wales, it is an offence to incite someone to commit a criminal offence. I am sure that colleagues will understand that we will continue to need equivalent provisions in respect of offences committed under service law. If a person is found guilty of incitement, he is liable to receive the same punishment as he would have done if he had committed the offence he incited. That offence cannot be dealt with summarily by a commanding officer, even if the offence incited is capable of being dealt with summarily. As is the case with clause 12, the requirement that the command is lawful is a protection to a serviceman from being ordered to take part in an unlawful activity. The proposed new clause of the hon. Member for Salisbury would cover this ground again, but it would do so in a rather unsatisfactory way because it would limit the application of the offence to those in a position of authority over another person and who are able to command or order them to commit an offence. It does not deal with circumstances where one person incites another of the same rank and seniority to commit an offence. The offence of incitement in clause 40 covers such situations and in doing so, I hope that the hon. Gentleman agrees that it makes his new clause unnecessary. Question put and agreed to. Clause 40 ordered to stand part of the Bill. Clauses 41 to 49 ordered to stand part of the Bill. Clause 50 Jurisdiction of the court martial Question proposed, That the clause stand part of the Bill. Mr. Burrowes: I would like the Minister to clarify the position on jurisdiction and the rationale behind the clause. Mr. Touhig: If the Committee had considered amendment No. 1, we would have found that it was intended to insert a provision into the Bill to prevent certain serious criminal offences from being service offences if they were committed in the United Kingdom. The effect would be to prevent such offences, if committed in the UK, from being investigated by the service police or tried by a court martial. The powers of service police and COs relate to offences under service law. Some very serious offences, such as rape and murder, are offences under service law only when they are committed overseas. The absolute exclusion proposed under the amendment would have continued two main problems that exist under the present service discipline provisions. First, it would have prevented the service police from investigating certain offences committed in the United Kingdom. If a soldier in Germany were suspected of having committed a murder in the United Kingdom and also of having the murder weapon with him, the Bill, if amended by amendment No. 1, would have given the service police no power to search for the evidence, nor could the police have arrested the suspect or held him in custody. Secondly, it would have prevented the service system from ever trying the offence, even if it were in the interests of justice to do so. Let us suppose a soldier was suspected of a series of rapes of service personnel, both in the United Kingdom and abroad. The service system could deal with the offence committed abroad, but not with that committed in the United Kingdom. Equally, the civilian courts in the UK could not deal with the offences committed abroad. Having one trial, especially when the victim may be the same person, is surely in the interests of justice. The civilian courts in this country have extraterritorial jurisdiction in respect of UK nationals overseas for a limited range of offences, including murder. It would be a significant step to increase the jurisdiction of civilian courts in the United Kingdom to deal with more offences overseas, and there would also be a lacuna in respect of non-UK nationals in the armed forces, such as the Gurkhas. There are circumstances, therefore, in which service jurisdiction over such offences is needed, but we still expect it to be exceptional for such offences to be dealt with in the service system. Among the checks and balances will be the protocols between the service and civilian police forces that presume civilian police primacy for criminal offences committed in the United Kingdom, and superintendence of the Director of Service Prosecutions by the Attorney-General. Under those well established protocols, the general rule is that the services deal with offences that have an entirely service-related context. When there is a civilian context, the basic principle is that the civilian authorities deal with the matter. In difficult cases a decision is made by the local chief officer of the civilian police force. I hope that hon. Members see the value of not imposing a blanket exclusion on service jurisdiction, and that that background information allows them a better understanding of what is intended. I thank hon. Members for the opportunity to put the information on the record. Mr. Howarth: I am sure that the whole Committee is grateful to the Minister, because we have been wrestling with the issue and I do not have any predetermined position on it. I think that what he has described is inevitably something of a fudge and a flexible arrangement. I represent a garrison town so I have thought pretty hard about it, and I think that, now we have protocols in place whereby there is a clear understanding between the service police forces and the local constabulary, the Minister’s comments probably make sense. There is an advantage in Parliament providing, where appropriate, for flexibility to enable people on the ground to deliver justice in the most satisfactory possible way. Unless my hon. Friend the Member for Salisbury—who also represents a large garrison area—wishes to make any comments, I am inclined to accept the rather pragmatic line that the Minister has taken. If it does not work, we can of course revisit it, and if, when the Bill is enacted, Parliament is given an opportunity to review the Bill annually, we shall be able to monitor things even more closely. Question put and agreed to. Clause 50 ordered to stand part of the Bill. 4.30 pmClause 51 Jurisdiction of the Service Civilian Court Mr. Touhig: I beg to move amendment No. 31, in clause 51, page 22, line 30, at end insert—
The Chairman: With this it will be convenient to discuss Government amendment No. 32. Mr. Touhig: The service civilian court replaces the standing civilian courts, created in 1976 under the Army and Air Force Acts, and extends them to the Royal Navy. These courts, which comprise a civilian judge advocate sitting alone, are broadly equivalent to magistrates courts in England and Wales, but they may sit only outside the British Islands. The clause sets out the general rule that the service civilian court may try any civilian who is subject to service discipline for any service offences, unless those that are specifically excluded from its jurisdiction. The main exemption to that general rule is that the service civilian court may not try criminal conduct offences under clause 42, which are in the civilian system in England and Wales and are triable only on indictment in the Crown court before a jury. The clause would give the service civilian court similar jurisdiction to an adult magistrates court in England and Wales. Offences that can be tried in the civilian system, either on indictment or summarily—either way offences—are not excluded from the service civilian court’s jurisdiction, because they are not triable only on indictment. Whether the service civilian court should try an offence where it has jurisdiction depends on the view taken of the gravity of the offence, which will be decided first by the Director of Service Prosecutions when deciding whether to send the case to court. The service civilian court may also deal with persons subject to service discipline who are under 18, namely juveniles. When it deals with juveniles, it will act in a manner similar to the youth court in England and Wales and similarly to the standing civilian courts. The provision was intended to reflect exactly the current position in relation to the jurisdiction of the standing civilian court, which the service civilian court replaces. We have realised, however, that the clause does not really achieve that; as it is drafted, it prevents the service civilian court from dealing with juveniles accused of certain indictable-only offences with which both a youth court in England and Wales and the standing civilian court may already deal. That unfortunate side effect of how the clause was drafted makes a rather subtle change, which is why it has only just come to our attention. Amendments Nos. 31 and 32 would put that right and, as a consequence, the clause would achieve the intention of preserving the existing jurisdiction of standing civilian courts over juveniles. The service civilian court can deal with all alleged offences by juveniles with few exceptions, namely certain firearms offences that attract a minimum sentence and homicide offences. That is similar to the jurisdiction of youth courts. I hope that, with that explanation, the Committee is able to support the amendment. Amendment agreed to. Amendment made: No. 32, in clause 51, page 22, line 37, leave out subsection (3) and insert—
Clause 51, as amended, ordered to stand part of the Bill. Clause 52 Charges capable of being heard summarily Question proposed, That the clause stand part of the Bill. Mr. Howarth: I do not intend to detain the Committee on this matter, save to say that it goes to the heart of the issue concerning the powers of the commanding officer. I do not intend to address that matter tonight, because we will have plenty of scope to consider it further during our discussions on clause 116. It is important that we spend time in Committee considering such points because one of the guiding principles of the Bill is that the powers of commanding officers to deal with cases summarily should be reduced, particularly the power of a commanding officer to dismiss a serious charge—as set out in schedule 2. It is important that we try to get that right, and I might table amendments that would reintroduce the power of a commanding officer to dismiss a serious charge, if only for the purpose of testing the case and to give the Minister an opportunity to respond. One of the reasons for putting that on the record now is to provide time for preparation to get under way. We owe it to our armed forces to preserve the chain of command. We have had much evidence from senior officers on the fact that they are content with the way in which the Bill is being handled in that respect. Nevertheless, the chain of command is central, and I intend to explore that in greater detail in our discussions on clause 116. Mr. Touhig: I note the hon. Gentleman’s point and I am grateful for the fact that he has given us advance notice of his possible intention to address the matter later. I am sure that we will have a full debate on it at the time. Question put and agreed to. Clause 52 ordered to stand part of the Bill. Clause 53 ordered to stand part of the Bill. Schedule 1 Criminal conduct offences that may be dealt with at a summary hearing Question proposed, That this schedule be the First schedule to the Bill. Robert Key: Consideration of schedule 1 gives me the opportunity to repeat myself. On Second Reading, and several occasions since, I have said that I was concerned that the Committee was being asked to consider a massive volume of legislation without consideration of the detailed legislation that might follow in statutory instruments. The schedules are important also, and we must recognise what we are being asked to rubber stamp. It is not so much a question of seeking to amend a schedule such as this, but of acknowledging that the Bill is extremely important for the everyday lives of servicemen and women and their spouses and families in married quarters—at home and overseas. For example, part 1 to schedule 1, relating to clauses 53 and 54, provide for charges to be heard without the permission of a senior authority for offences as diverse as dangerous and careless cycling—you might not think that that is very important, Mr. Howarth—but also for theft, the misuse of drugs, criminal damage, assault and battery, driving with excessive amounts of alcohol, and so on. We need to ponder for a moment the significance of hastening through this part of the Bill. Will the Minister remind us of whether we will have sight of any of the statutory instruments attached to any part of the Bill before we get much further? Mr. Touhig: I am aware that colleagues have had concerns about statutory instruments that might follow the Bill. Colleagues have a right to hold the Executive to account for their intentions in that respect. In all cases, where it is possible, my ambition is to bring such information to colleagues’ notice. That is important when asking them to support legislation as detailed, complex and extensive as that which is before us. That is what I hope to do, and I hope that the hon. Gentleman will accept that. I shall take note of his points regarding schedule 1, and I will ask my officials to advise me on when we can have the information that will answer his inquiries. Question put and agreed to. Schedule 1 agreed to. Clauses 54 to 66 ordered to stand part of the Bill. Further consideration adjourned.—[Mr. Alan Campbell.] Adjourned accordingly at twenty minutes to Five o’clock till Wednesday 22 March at half-past Nine o’clock. |
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