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
LegislationTuesday 20
June
2006[Sir
Nicholas Winterton in the
Chair]Draft Army, Air Force and Naval Discipline Acts (Continuation) Order 20064.30
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?
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—
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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