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Session 2005 - 06
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Fraud Bill [Lords]

Draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2006

The Committee consisted of the following Members:

Chairman: Sir Nicholas Winterton
Burns, Mr. Simon (West Chelmsford) (Con)
Cunningham, Tony (Workington) (Lab)
Gerrard, Mr. Neil (Walthamstow) (Lab)
Heyes, David (Ashton-under-Lyne) (Lab)
Howarth, Mr. Gerald (Aldershot) (Con)
Jenkins, Mr. Brian (Tamworth) (Lab)
Knight, Mr. Greg (East Yorkshire) (Con)
Liddell-Grainger, Mr. Ian (Bridgwater) (Con)
Main, Anne (St. Albans) (Con)
Reed, Mr. Andy (Loughborough) (Lab/Co-op)
Reed, Mr. Jamie (Copeland) (Lab)
Rennie, Willie (Dunfermline and West Fife) (LD)
Russell, Bob (Colchester) (LD)
Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
Truswell, Mr. Paul (Pudsey) (Lab)
Walley, Joan (Stoke-on-Trent, North) (Lab)
Watson, Mr. Tom (Parliamentary Under-Secretary of State for Defence)
Eliot Wilson, Olivia Davidson, Committee Clerks
† attended the Committee

Sixth Standing Committee on Delegated Legislation

Tuesday 20 June 2006

[Sir Nicholas Winterton in the Chair]

Draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2006

4.30 pm
The Chairman: I welcome all Members to this Standing Committee on Delegated Legislation on this delightful afternoon on which, I hope, England will notch up their third victory. I should say to the Minister that I anticipate a lengthy but constructive debate. Is it the wish of the Committee that the orders be debated together?
Hon. Members: Yes.
The Parliamentary Under-Secretary of State for Defence (Mr. Tom Watson): I beg to move,
That the Committee has considered the draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2006.
The Chairman: With this it will be convenient to discuss the draft Courts-Martial (Prosecution Appeals) Order 2006.
Mr. Watson: May I say, for the first time, what a pleasure it is to serve under your chairmanship, Sir Nicholas? As a former Government Whip, I am familiar with such Committees, but not in my present role. I can tell you that we Whips were always pleased that you were chairing a Committee, because Ministers occasionally stray from the subject, and you had a reputation for pulling them up quickly. I assure you that I do not intend to detain the Committee longer than is absolutely necessary, as we all have important things to do this evening.
The draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2006 was laid before the House on 27 April. As is customary, I should like to say a few words in support of it. Though a small, and some would say rather arcane, item of business, the order is crucial to ensuring that the service discipline Acts remain in force. I do not want to worry the Committee unnecessarily, but if the order is not passed by31 August, there will be no discipline in our three services, which, as hon. Members can imagine, would have a slightly chaotic effect on our current endeavours.
As some hon. Members will know, Parliament is asked most years to consider an order of this kind as part of the process by which the service discipline Acts are kept in force. The Armed Forces Acts form the main part of that process. They are passed every five years to allow the individual service discipline Acts to continue in force for up to five more years, but are subject to an annual Order in Council in the intervening years. The most recent of those Acts, the Armed Forces Act 2001, extended the provisions of the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 by a further five years, but that extension was subject to both Houses approving an order, such as the one before us, in each intervening year.
The key difference this year is that we are reaching the end of this particular cycle. The current order will mean that the service discipline Acts continue in force until December 2006, after which they can be renewed only by primary legislation. The Government are confident that the Armed Forces Bill, which has had its Second Reading in the other place, will have received Royal Assent by then. The Armed Forces Act 2006, as it will be known, will provide for the arrangements to continue.
I have one more observation on the order: the Government have given an undertaking that Ministers moving instruments subject to the affirmative procedure will tell the House whether they are satisfied that the legislation is compatible with the European convention on human rights. The order is a brief document that raises convention issues only in so far as it maintains in force three Acts that, as they have been amended over the years, reflect convention rights.
When the Armed Forces Bill was introduced in this House last November, we felt that it did not require the five-yearly legislation to be renewed by Order in Council in each of the intervening years, and it is true that we felt that, in the 21st century, there was no longer a need for parliamentary control to be exercised quite so closely. Had we carried the day, this would have been the last such debate. In the event, we listened to views of the Select Committee, and, in particular, to the views of the hon. Member for Aldershot (Mr. Howarth). The Government amended the Bill to continue with annual renewal by Order in Council of not only the existing Acts but the Armed Forces Bill, once it is brought into force.
For some years now, these debates have provided an opportunity to give the House a progress report on the forthcoming Armed Forces Bill. I am delighted that we no longer need to do that, and that the Bill is making good progress. In future, I expect that these debates will instead be a helpful opportunity to keep the House informed of progress on the Bill’s implementation. I look forward to providing those updates and to discussing the renewal of a single system of service law for many years to come.
I should now like to speak to the second order that we are considering. Hon. Members will be aware that a considerable amount of legislation is passed in relation to the civilian criminal justice system, and very little of it is made directly applicable to the armed forces. Instead, section 31 of the Armed Forces Act 2001 allows us to apply enactments to the services by means of orders. The draft order will be made under the Armed Forces Act 2001 and will amend the Courts-Martial (Appeals) Act 1968. The 2001 Act requires the order to be approved in draft by both Houses. The order has already been debated and approved in the other place.
The purpose of the draft Courts-Martial (Prosecution Appeals) Order 2006 is to provide the court martial system with powers comparable to those in the civilian system by providing the service prosecution authorities with a right to appeal against certain decisions of a judge advocate that result in the termination of a case before a court martial. Terminating rulings are ones that stop a trial before it is completed. Their effect is that the trial stops and the accused is no longer subject to prosecution for the offence. Since April 2005, the civilian prosecution authorities have been able to appeal against such decisions in exceptional circumstances. Those changes were not directly applied to the services, hence the need for this important order.
As in the civilian system, this right of appeal would be used only in very rare circumstances. An appeal will lie to the courts martial appeal court, which is a division of the Court of Appeal. Article 8 of the draft order states the three exceptional circumstances in which the courts martial appeal court may reverse the ruling of a judge advocate on an appeal by a service prosecuting authority: if the judge advocate’s ruling was wrong in law; if the ruling involved an error of law or principle; or if it was unreasonable for the judge advocate to make such a ruling.
Hon. Members will appreciate that those stringent tests will be at the forefront of the minds of the service prosecuting authorities when they decide whether to bring an appeal against a terminating decision. That appeal mechanism is clearly not for situations such as that in which the judge advocate is persuaded by a half-time submission, in a case that rests solely on identification evidence, that such evidence is too unreliable for the case to proceed. That is because such a decision is within his discretion and cannot be characterised as being unreasonable or wrong in law or principle. Rather, the mechanism is for the very rare occasions when a judge advocate errs in law or makes a decision that it was manifestly unreasonable for him to make. In that instance, we believe that it is right and sensible that the same provisions should apply to the armed forces and civilians.
There is no good reason why the service prosecuting authorities should be denied rights of appeal against terminating rulings by judge advocates at courts martial. Furthermore, as I am sure hon. Members will agree, it is vital that the court martial system is seen to be as fair and balanced as possible in respect of all parties that use it.
Mr. Gerald Howarth (Aldershot) (Con): Has the Minister been briefed on the number of cases in which that has happened—cases in which a judge advocate has discontinued a case, and that has caused consternation in military legal circles? It might assist the Committee if the Minister let us know whether there have been such instances. The point is not particularly material, but it might help us understand the degree to which the issue is important.
Mr. Watson: I think, from memory, that there has been only one. If that is not correct, I promise to put the matter right before we conclude our proceedings.
Bob Russell (Colchester) (LD): That is more accurate than the Home Office.
Mr. Watson: The hon. Gentleman says that it is more accurate than other Departments; it is obviously easy to—
The Chairman: Order.
Mr. Watson: If a judge advocate makes an error that would allow the service prosecuting authorities to bring an appeal, it is important that they be able to do so, to protect not only the interests of a victim in a particular case, but those of all servicemen. Servicemen deserve a robust and unbiased system of justice in which they can have confidence, knowing that serious errors of law or unreasonable decisions will not go unchecked. I commend both orders to the House.
The Chairman: Before I call the first speaker, I remind the Committee that the debate can continue for a total of one and a half hours.
4.42 pm
Mr. Howarth: Thank you, Sir Nicholas. I pay tribute to you; my colleagues and I are pleased to be serving under your leadership, which enjoys a legendary reputation in the House. However, I am sad to have to correct you. You mentioned that today there is to be a sporting event, of which I know little. There is only one sporting event today of which you should be aware—the tug of war involving this House and another place. I cannot imagine that there is an event on the British sporting calendar more important than that. However, you say that there is something else on the television; no doubt some of our constituents will be distracted by that rather than the tug of war.
The Chairman: I am extremely grateful for that helpful information, as I am sure every other Committee member is. I hope that that event gets maximum support.
Mr. Howarth: The Minister has given the background to the first of the two orders, which involves an annual procedure that enables both Houses to have an annual review of the services. That has origins in history; the Bill of Rights 1688 provided that no standing army should be maintained save with the authority of Parliament. This Committee is the procedural mechanism by which that authority is maintained, so it is important that we have this debate.
I am grateful to the Government for having acceded to the request, made by the official Opposition and the Liberal Democrats, that the new disciplinary arrangements should continue to provide for an annual review. That will be warmly welcomed in all parts.
I am the Member of Parliament for the garrison town of Aldershot, and the hon. Member for Colchester (Bob Russell) is here. We both have a very strong vested interest in disciplinary arrangements remaining in force beyond 31 August 2006. The absence of such arrangements might have somewhat more dramatic impacts on our constituencies than on that of the Minister or those of other hon. Members here. In Aldershot, we are keen that the measure should go through.
In a Committee sitting such as this, we would normally review disciplinary arrangements and have the opportunity to raise the other issues of concern broadly encompassed in disciplinary matters. However, this year we can dispense with that, because the Armed Forces Bill has provided us with extensive opportunities to ensure that we have covered that waterfront. There is no reason for this Committee to be detained on such matters.
The Minister has said that he is confident that the Armed Forces Bill will pass through both Houses by the end of the Session and will therefore have been enacted before the end of the year, when the order will lapse. I hope that he is proved right. If he would be kind enough to accede to one or two minor suggestions that I have made to him, the Bill will—I assure him—pass even more speedily.
The Minister was new in post when we considered the Bill, and as he needed to get his head round375 clauses I wanted to assist him in every possible way. I realise that at that stage he had not fully embraced all the arguments, but he has now had the opportunity to do so, and I know that in his winding-up speech he will want to say how much he has been persuaded by my arguments, and that the Government will be tabling amendments in the other place to address the points that we made on Report.
Turning to the other order, I first of all thank the Minister for providing an explanatory memorandum that was written in English. For those of us who are non-lawyers, trying to decipher such highly legalistic orders is somewhat difficult, and we appreciated the opportunity to read about them in English. The expression “second bite at the cherry” is so much more explanatory than the legal jargon. We could have done with the memorandum a little earlier, but I shall not cavil at that.
I am grateful to the Minister for enabling me to have a conversation with his advisers. That arrangement has been a constructive one, because the public may think that the Opposition spend all their time being briefed by the Ministry of Defence, but the Minister knows that that is not actually the case. Co-operation with the Bill team on the Armed Forces Bill has been, as it has with these measures, very constructive and helpful, and that is a good way of conducting parliamentary business. Such co-operation may not be appropriate to all Departments, but we should try to co-operate in relation to the armed forces, in view of the degree of common interest between us, and the public desire that we be seen to support those forces.
I have three questions. First, why we are doing this at all? In his opening remarks the Minister said that the attempt is to provide a parallel to that for which civilian law already makes provision. I accept that, but I am bound to say that it has always been a key position of the Opposition, and I believe of the Government as well, that the armed forces require a separate system of justice. Therefore, every time it is argued that an enactment is needed to provide parallels in military law to the civilian law system, it is appropriate to question why such replication is needed. The Minister has sought to make the argument in favour. For myself, I pray in aid the judge general, who has emphatically and effectively made the case for a separate system of military law.
I asked the Minister how many cases had arisen to require us to be considering the measure, and the fact that he gave only one example leaves me asking why we are introducing it. There has been disagreement in the House on the expression “under legal siege”, which was used by Admiral Lord Boyce in another place last year. However, our soldiers are doing most extraordinary deeds in Iraq and Afghanistan, as we have read in the past few days. We all agree that 3 Para has performed astonishingly. Those men are fighting for their lives, so it behoves us to ensure that we provide a system of military justice for our soldiers, sailors and airmen that is essentially on their side and gives them the benefit of the doubt. I hope that that is common ground.
The Minister seems satisfied that there will not be an attempt through the new measure to second-guess a decision by a judge advocate who, faced with a case, decides that there is insufficient evidence to sustain a charge. That was the case to which the hon. Gentleman alluded. I am talking about when someone is up on a charge and the judge advocate decides that there is insufficient evidence, and that is the end of it. It would be unacceptable for the Trooper Williams syndrome to enter into the equation, whereby the military high command under pressure from groups or the media felt it necessary to challenge a judge advocate in order to be seen to be doing justice, thereby causing further anxiety to our soldiers in the front line and making them feel that the system is against them. That is the real reservation I have about the measure. We cannot rely as a Committee on the simple assurance that it is unlikely that it will ever be used.
When we are asked to approve legislation, it is our duty to make sure that it is fit for purpose in the event that it is used. Incidentally, I am not questioning the hon. Gentleman’s integrity, but we should not rely on the assurance of a Minister that the order is unlikely to be used. We have to make the assumption that it will be used. I want to be sure that, if it is to be used, it will not be as the result of political pressure in order to have the second bite at the cherry.
The Minister read out article 8, which outlines the conditions that have to be satisfied for a court martial appeal court to find in favour of a prosecution appeal. I hope that they will be a sufficient safeguard, but the hon. Gentleman may like to comment on them again. I have run matters past the shadow Attorney-General, my hon. Friend the Member for Beaconsfield (Mr. Grieve), an eminent lawyer, and he finds the measure acceptable.
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