Armed Forces Bill |
|
Mr. Howarth: I am grateful to the Minister and to those who confer advice on him. Question put and agreed to. Clause 369 ordered to stand part of the Bill. Clause 370 Power to make transitional and transitory provision Amendments made: No. 164, in clause 370, page 187, line 44, at end insert—
No. 165, in clause 370, page 188, line 11, after ‘provision’ insert
No. 167, in clause 370, page 188, line 14, leave out “section 371(1)” and insert
Clause 370, as amended, ordered to stand part of the Bill. Clause 371 Duration of SDAs and this Act Amendments made: No. 168, in clause 371, page 188, line 18, leave out from ‘of’ to end of line 20 and insert
No. 169, in clause 371, page 188, line 21, at end insert
No. 170, in clause 371, page 188, line 25, leave out subsection (3) and insert—
Clause 371, as amended, ordered to stand part of the Bill. Clause 372 Commencement Amendment made: No. 171, in clause 372, page 188, line 28, after ‘375’ insert
Clause 372, as amended, ordered to stand part of the Bill. Clause 373 ordered to stand part of the Bill. Clause 374 Extent of applied enactments Amendment made: No. 53, in clause 374, page 189, line 4, at end insert—
Clause 374, as amended, ordered to stand part of the Bill. Clause 375 ordered to stand part of the Bill. New Clause 12 Pay, bounty and allowances
Brought up, read the First and Second time, and added to the Bill. New Clause 13 Powers of the Criminal Cases Review Commission
Brought up, read the First and Second time, and added to the Bill. New Clause 14 Protection of children of service families
Brought up, and read the First time. Mr. Touhig: I beg to move, That the clause be read a Second time. The Chairman: With this it will be convenient to discuss Government new schedule 2—Protection of Children of Service Families.. Mr. Touhig: The Ministry of Defence considers it has a responsibility to provide, as far as is practicable and appropriate in the service environment, the same safeguards for the protection of children in the service community overseas as children in the UK enjoy under part V of the Children Act 1989. Provisions for the protections of overseas service children are contained in the Armed Forces Act 1991. They have worked well, but with experience we have identified some useful improvements that the Bill gives us the opportunity to implement. The new clause and new schedule serve to make the service regime more flexible and effective and more consistent with the regime under the 1989 Act. Question accordingly agreed to. Clause read a Second time, and added to the Bill. New Clause 3 Dangerous conduct
Brought up, and read the First time. Mr. Howarth: I beg to move, That the clause be read a Second time. This is very much a probing new clause, but it provides the Minister with a chance to clarify the Ministry of Defence’s position on health and safety legislation. I must say in parentheses that one of the delights of visiting HMS Illustrious last November, on no less a date than the 200th anniversary of the battle of Trafalgar—it was a huge privilege to be on Her Majesty’s flagship on that great day—was to walk around on the flight deck and below deck. There were wires everywhere, all sorts of hazards in the way and, to my enormous delight, not one health and safety notice. I thought that it was simply magnificent that people were expected to look after themselves. I think that we have gone completely berserk about health and safety and taken it to ludicrous extremes. I give way to the hon. Member for North Durham (Mr. Jones), but I am under extreme pressure for time so I hope that he will not provoke me. Mr. Kevan Jones (North Durham) (Lab): I would not like to provoke the hon. Gentleman, but what would he have done if he, or a member of his party, had tripped over any of those wires and broken part of their anatomy? Would he have wanted to sue the MOD, or would he have said that it was just down to, “Events, dear boy, events.”? The Chairman: Order. I think that that question was rhetorical and I have no expectation that it will be responded to. Mr. Howarth: Since my personal integrity is on the line, Mr. Howarth, I assure the hon. Gentleman that I am a robust Tory and I would put it down to my own failure to take note of what was around me. I am happy to put that on the record. If more of our citizens adopted that kind of attitude— The Chairman: Order. Can we turn back to new clause 3? Mr. Howarth: There would be fewer lawyers and we would have a better society. I declare an interest: my son is a lawyer. I understand that the Secretary of State can claim exemptions from the Health and Safety at Work Act, etc. 1974 and its subordinate regulations. How often has that power been used? I also understand that the Ministry of Defence is entirely exempt from prosecution, and the Health and Safety Executive can issue only a Crown censure, which is
Does its immunity from prosecution cover the Ministry of Defence as a body corporate, and does it extend to individuals? Even if individuals are liable for prosecution under civil law, the armed forces would be better served by the introduction of a specific service offence to cover most health and safety breaches. Any alleged breach could be investigated and, if necessary, dealt with in the service community. A court martial is a far better place than an outside organisation such as the HSE in which to balance risk and realism in training, operational necessity and the welfare of our troops. I am also interested in the position of servicemen and civilian contractors overseas. If there were a breach of UK health and safety regulations in Iraq, would it be prosecuted under military or civil law, or under local legislation if there is any? Or is the Ministry of Defence covered by Crown immunity in that respect? Finally, is there any difference between the treatment of a serviceman and the treatment of a civilian subject to service law? Mr. Touhig: The proposed new clause seeks to create a new service disciplinary offence of dangerous conduct. The offence would apply to both service personnel and civilians subject to service discipline. An offence would be committed if, without lawful excuse, a
did any act relating to
and the act caused or was likely to cause personal injury to a person. The maximum punishment for an offence under the clause would be 10 years’ imprisonment if the offender was reckless, or two years’ imprisonment in any other case. New clause 3 is unnecessary in disciplinary terms, because all the mischief included in it is already prohibited under service offences set out in the Bill. In addition to the criminal conduct offences of murder, manslaughter and assault provided for by clause 42, there are a number of specific service disciplinary offences that forbid the conduct that the new clause seeks to deal with. Service disciplinary offences that cover such acts are included in clause 13 “Contravention of standing orders”, clause 19 “Conduct prejudicial to good order and discipline”, clause 31 “Hazarding of ship”, clause 32 “Giving false air signals etc”, and clause 33 “Dangerous flying etc”. What is new is that the proposed clause would apply to civilians subject to service discipline. The careless handling of service material by a contractor—or, for that matter, by a member of the service family—in such a way that someone was likely to be injured would effectively be made criminal. It is often tempting to create new offences, but the new clause would be the wrong way to deal with dangerous conduct by contractors, even more so for dangerous conduct by a civilian subject to service discipline. When a civilian’s conduct amounts to a normal criminal offence, it is right for him to be prosecuted, but where it would not be a criminal offence, the right way to deal with a civilian is through the management of contractual arrangements that cover general behaviour at work. The new clause is also far too wide. If a person, civilian or service did virtually anything connected to service property, and even if no negligence was involved, and that action ultimately resulted in an injury of any sort, they would be guilty of an offence. For example, the new clause would make it an offence punishable by up to two years’ imprisonment for a person, civilian or service accidentally to drop a box of military equipment—if that is included within the definition of service material, which in itself has not been defined—on someone’s foot. The new clause is really wide. I understand the intention behind the drafting of it, but I hope that, in view of my explanation, the hon. Member for Aldershot will feel able to withdraw his new clause. Mr. Jones: May I move new clause 23, which is in my name? I apologise for my absence from Committee this morning, as I had a question— The Chairman: Order. I do not think it is necessary for the hon. Gentleman to move his new clause at this point. We are not there yet. Mr. Howarth: We are dealing with new clause 3, I believe. I repeat my opening remark, which is that my new clause was very much a probing amendment; I was just trying to find out exactly what the law is. The Minister did not actually answer my point about whether the Ministry of Defence is subject to health and safety legislation. If possible, will he let me have a note about that? Mr. Touhig: I will make sure that the hon. Gentleman is made aware of the answer to that. Mr. Howarth: I am sorry to ask the Minister to write me another letter, but it is important to know the answer. It is rather important that the various points that the Minister made are taken on board, and that we allow our servicemen and women to operate in a much easier environment. We expect them to be in harm’s way for much of the time, so it is important that they can operate without too much constraint. On the basis of the Minister’s reply, I am happy not to press new clause 3 to a Division. I beg to ask leave to withdraw the motion. Motion and clause, by leave, withdrawn. 11.45amNew Clause 9 Rules of Engagement
Brought up, and read the First time. Mr. Burrowes: I beg to move, That the clause be read a Second time. We have heard much debate on our visits about the rules of engagement. The purpose of this probing new clause is to give a clear statutory foundation to the rules of engagement, so that they receive the proper scrutiny and public airing that they deserve, and to meet our armed forces’ need for clarity, particularly on operations. New clause 9(8) fully recognises that the rules in force for particular operations should not be disclosed, lest that disclosure assist the enemy. That would suggest that the yellow card extract from the rules, which is distributed to troops on the ground as a guide to their individual conduct, should not be made a public document. Our troops have been assured in the past by their commanding officers that they will basically be all right provided they keep to the rules. In other words, their conduct will be lawful and they will not be in peril of prosecution. Sadly, that was not the case for Trooper Williams, despite his commanding officer finding that he conformed to the rules. The Attorney-General accepted in evidence to the House of Lords Constitution Committee on 22 March that he was consulted by the Ministry of Defence in drawing up the rules, which must be taken, in essence, as having the force of law. The new clause would ensure that that was exactly the case—namely, that conformity with the rules was indeed an absolute defence against accusations of wrongdoing. The new clause would replace any ambiguity with that statutory certainty, and what the situation has been claimed to be and what troops on the ground understand it to be. We should reflect that properly and on a statutory basis. Mr. Touhig: I recognise that the proposed new clause is motivated by a concern about service personnel unfairly facing prosecutions for actions that they have taken in accordance with the rules of engagement. I appreciate that that is a genuine concern, but I hope to demonstrate to the hon. Gentleman and his colleagues that, as expressed in the new clause, it is misplaced. Rules of engagement are not law. They are tailored to the specific mission and drawn up using specialist military expertise. The development of rules of engagement will at all stages take into account the rights and obligations placed upon our forces by national and international law, while also reflecting the extant national policy, by indicating the required force posture. Legal advice is invariably built into the process of developing rules of engagement. Although rules of engagement are not the law or legislation, a soldier who complies with his rules of engagement and any associated guidance in good faith will not stray outside the law. The soldier’s guidance card will make it clear that lethal force may be used only where an imminent threat to life exists. Assessing whether such a threat exists in a given set of circumstances requires a separate judgment, which the rules cannot address. That position would remain even if rules of engagement had the force of law, as the new clause proposes. There is an even more fundamental problem with the new clause, however. It seeks to provide through rules of engagement an absolute defence against criminality. That would mean that, whatever rules were laid down, a person who obeyed them could not be prosecuted under service or domestic law. That would be the case even if the rules permitted conduct that was contrary to the law of armed conflict. No prosecution could be brought under our law. That cannot be right in principle. Mr. Howarth: I hope that the Minister will forgive me, but he has just referred to the rules of engagement conflicting with law. However, he has already said that, broadly speaking, somebody who complies with the rules of engagement will be inside the law. That seems to be a contradiction, so we need some clarification. Mr. Touhig: I am seeking to get it across to the hon. Gentleman that if the new clause were accepted, the rules of engagement would be an absolute defence against criminality and that no action could be taken. Mr. Howarth: Indeed, that is precisely the purpose of the new clause. The Minister has sought to assure us that our fears are unfounded because any soldier who acts in accordance with the rules of engagement will remain within the law. He has now said that if we were to put that on a statutory basis—as we are proposing—a soldier could indeed be prosecuted, notwithstanding the fact that he complied with the rules of engagement. That sends out the unclear signal that we are trying to avoid. Mr. Touhig: The hon. Gentleman has perhaps misunderstood what I am trying to get across. His new clause would make it impossible to act in the case of a failure. Mr. Howarth: In that case, may I put the question the other way round? Will the Minister confirm that no conviction could ensue, in the event that a soldier was charged but said, and it was accepted, that he acted within the rules of engagement? Or is the Minister saying that, notwithstanding the fact that the soldier had complied to the letter with the rules of engagement, the soldier could face a charge? Mr. Touhig: I have made it clear that a soldier who acts in good faith and within the rules of engagement and other associated guidance will not stray outside the law. The rules of engagement cover the use of force, but not all military conduct and tasks. The new clause would exempt a serviceman from prosecution just because he had not breached the rules of engagement. Does that help the hon. Gentleman? Mr. Howarth: It is helpful, but I shall allow the Minister some time to refine his arguments. I shall listen further and then perhaps I or my hon. Friend the Member for Enfield, Southgate (Mr. Burrowes) will respond. Mr. Touhig: The rules of engagement are drawn up with the law in mind—to reflect the law—but the new clause would reverse that and mean that whatever rule was laid down would comply with the law. The point that I was making to the hon. Member for Aldershot was that his proposed new clause is flawed in that respect. At the moment, the relationship between the rules of engagement and the law is clear and well understood. The proposed new clause would cut across that well-established doctrine and drastically undermine the clear legal position. That is why I am resisting the new clause. Mr. Burrowes: I am grateful for the Minister’s response. The new clause is a probing one which has perhaps exposed the ambiguity with which we seek to deal. We are seeking clarity. We want the full force of the law to apply, as reflected in the Attorney-General’s consideration of the matter, by putting into statute what, in essence, the Minister said in his response: if a person complies with the rules, they will not stray outside of the law. The essence of the new clause would give that effect by allowing someone who was prosecuted to show that the conduct concerned fell within the rules. That was the purpose of the new clause, but it was probing by nature and we will not press it, although we will reflect on the matter and perhaps return to it. I beg to ask leave to withdraw the motion. Motion and clause, by leave, withdrawn |
| |
| ©Parliamentary copyright 2006 | Prepared 8 May 2006 |