The
Committee consisted of the following
Members:
Bailey,
Mr. Adrian
(West Bromwich, West)
(Lab/Co-op)
Battle,
John
(Leeds, West)
(Lab)
Cunningham,
Tony
(Workington)
(Lab)
Dorrell,
Mr. Stephen
(Charnwood)
(Con)
Drew,
Mr. David
(Stroud)
(Lab/Co-op)
Fabricant,
Michael
(Lichfield)
(Con)
Farrelly,
Paul
(Newcastle-under-Lyme)
(Lab)
Hamilton,
Mr. David
(Midlothian)
(Lab)
Harvey,
Nick
(North Devon)
(LD)
Howarth,
Mr. Gerald
(Aldershot)
(Con)
Jenkin,
Mr. Bernard
(North Essex)
(Con)
Marshall-Andrews,
Mr. Robert
(Medway)
(Lab)
Pritchard,
Mark
(The Wrekin)
(Con)
Rennie,
Willie
(Dunfermline and West Fife)
(LD)
Smith,
Geraldine
(Morecambe and Lunesdale)
(Lab)
Twigg,
Derek
(Parliamentary Under-Secretary of State for
Defence)
Wyatt,
Derek
(Sittingbourne and Sheppey)
(Lab)
Mr.
G. McKee, Committee
Clerk
attended the
Committee
The
following also attended, pursuant to Standing Order No.
118(2):
Mercer,
Patrick
(Newark) (Con)
Second
Delegated Legislation
Committee
Wednesday 13
June
2007
[Mr.
Jim Hood
in the
Chair]
Draft Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2007
2.30
pm
The
Parliamentary Under-Secretary of State for Defence (Derek
Twigg):
I beg to
move,
That the
Committee has considered the draft Armed Forces, Army, Air Force and
Naval Discipline Acts (Continuation) Order
2007.
The
Chairman:
With this it will be convenient to consider the
draft Armed Forces (Alignment of Service Discipline Acts) Order 2007
and the draft Armed Forces (Service Police Amendments) Order
2007.
Derek
Twigg:
It is a pleasure to serve under your chairmanship,
Mr. Hood, and I look forward to this afternoons
debate. The draft orders were laid before the House last month, and, as
is customary, I should like to say a few words in support of each of
them. I begin with the draft Armed Forces, Army, Air Force and Naval
Discipline Acts (Continuation) Order
2007.
Although it is a
small item of business for Parliament to consider, the continuation
order is vital, because it ensures that the Armed Forces Act 2006 and
the three service discipline Acts will remain in force for a further 12
months. As some hon. Members will know, in most years Parliament is
asked to consider an order of that kind as part of the process by which
the service discipline Acts are kept in force. The order that we are
considering today breaks new ground, however, because it provides for
the continuation in force for another year of the three service
discipline Actsthe Army Act 1955, the Air Force Act 1955 and
the Naval Discipline Act 1957and of the Armed Forces Act 2006.
When the 2006 Act was considered by Parliament, it was expected to
replace the three service discipline Acts. Although that remains our
intention, the Government need to continue the service discipline Acts
in force until the 2006 Act is fully in operation. That is why the
three Acts are covered by the
Order.
For some years
now, debates such as the present one have provided an opportunity for
the House to be given a progress report on the forthcoming legislation.
This year's debate is different, because we now have an Act in place.
That is not the end of the story, however, because having received
Royal Assent for the Armed Forces Act last November, the Government
have shifted their focus to the significant amount of work that will be
needed to deliver a single system of service law for our armed forces.
Foremost in that work is the huge amount of secondary legislation that
will, in a manner of speaking, put flesh on the bones of the Act. The
officials at the Ministry of Defence have been hard at work producing
that legislation since the Act received Royal Assent last
year.
Although it is too soon to say
precisely how many will finally be needed, we expect to produce in the
region of 65 statutory instruments altogether. Many of those will
contribute to the single system of service discipline that we intend to
have in place by 1 January 2009. As it is not possible to introduce
some parts of this disciplinary system in advance of others, we plan to
bring them all in together, and our target date for that is January
2009. At that point, the armed forces will move from the three separate
systems that are in place at present to the single one that will
replace them.
The
change will have consequences for, among other procedures, police
investigations, summary dealings, prosecutions and
court martial trials. As well as statutory instruments, we shall need
manuals, guidance, instructions and training for a wide range of
personnel and organisations to ensure that the change happens
efficiently and with the minimum of fuss for our armed
forces.
We expect to
lay almost all of the 65 or so statutory instruments before Parliament
during the course of 2008. We recognise that it would not help the
House if they were all laid at the same time, or even if they were laid
one at a time. So we will consider how they might be most sensibly
grouped together to assist Parliament in its
considerations.
Towards
the end of this year, officials propose to seek views from staff
working for the Defence Select Committee, the Merits Committee and the
Joint Committee on Statutory Instruments. It goes without saying that
our officials will be very happy to talk to other Committee officials
and staff who might be involved in that work. By doing that, we hope
that we shall be able to present the information in a way that assists
parliamentary scrutiny and avoids the system being
overloaded.
At
present, we plan to introduce a number of statutory
instrumentsthose that stand alone andare therefore
capable of being dealt with separately from those which go together to
underpin the single disciplinary systembefore most of the
others. They will make provisions in two particular areas. The first
deals with service complaints, which might be better known by some hon.
Members as redress of individual grievance. The second is in relation
to service inquiries, which will replace the present boards of inquiry.
The second is in relation to service inquiries, which will replace the
present boards of
inquiry.
Two other
orders are before us today. They are the Armed Forces (Service Police
Amendments) Order 2007 and the Armed Forces (Alignment of Service
Discipline Acts) Order. The first provides for the
consequential amendments to nine statutory
instruments in the name of the Royal Navy Regulating Branch and
changing it to the Royal Navy Police. The change in name is to provide
clarity so that the role of the organisation is understood by all those
with whom it will do business. Various provisions in primary
legislation have already been amended to reflect the change of name.
The affected primary legislation is set out under schedule 16 of the
2006 Act, the relevant paragraphs of which were
brought into force on 10 May by the first commencement order under the
Act.
The second order
removes the current restriction in the three service discipline Acts on
the number of civilians who may sit as lay members of courts martial
when the defendants are civilians. The removal of the
restriction will allow the court martial rules made under the service
discipline Acts, which we expect to be laid before Parliament towards
the end of the year, to provide that the military court service may
select all civilian panels when a civilian defendant is tried by court
martial. The need to make the change arose from the judgment in the
2006 European Court case of Martin
v. UK, when the Court said
that it would be appropriate to try a civilian by a military tribunal
only in very exceptional
circumstances.
The
Ministry of Defence has carefully considered the implications of the
judgment and we believe that the ability to have all civilian panels
when civilians are being tried provides the remedy. The judge advocates
who provide legal direction at courts martial are all civilian judges.
In a wider context, the changes demonstrate once
again the Governments determination to ensure that the military
justice system and the legislation that underpins it are compliant with
the European
Convention.
Mr.
Gerald Howarth (Aldershot) (Con): Obviously we understand
the logic of the Ministers argument, given the case of Martin.
Will there be provision fora mixed panel to be convened in,
for example, a case of a person who had previously served, but was now
in a civilian capacity, when it might be appropriate in such
circumstances to have a military person on the panel? Who will decide
the composition of the
panel?
Derek
Twigg:
I will come back to that
point.
I wish first to
make a further observation about the orders. The Government have given
an undertaking that Ministers moving instruments that are subject to
the affirmative procedure will tell the House whether they are
satisfied that the legislation is compatible with the rights provided
under the European convention on human
rights.
The first
order is a brief document that raises convention issues only, in that
it maintains in force the three Acts, which, as they have been amended
over the years, reflect the convention rights. As for the Armed Forces
Act 2006, as my right hon. Friend the Secretary of State declared last
year, we consider that its provisions are compatible with convention
rights. Of the remaining two orders, the second has no bearing on
convention rights. The third will help to preserve those rights, in
particular under article 6the right to a fair trialas
they extend to civilians subject to
legislation.
Before I
turn to the issue raised by the hon. Member for Aldershot, I hope that
members of the Committee will find it useful if I provide a summary of
my Departments progress on implementing the Armed Forces Act
2006. I have touched on part of it, but will now give a slightly fuller
picture. As I mentioned earlier, a large number of orders, rules and
regulations are to be drafted under the 2006 Act. Without them, it
cannot fully come into force as they underpin its operation. With the
exception of a few Defence Council regulations that
are not subject to parliamentary procedure, all of them will be laid
before Parliament. About15 orders are subject to the
affirmative resolution procedure and thus will be debated by both
Houses.
The remainder
of the ordersperhaps as manyas 50will be
subject to the negative resolution procedure. I very much hope that
none of the
instruments will be subject to debate, but we want to ensure that
Parliament has the ample opportunity to scrutinise them. Officials will
therefore be looking at the most appropriate way in which to batch the
statutory instruments together, so that there is a clear programme of
laying them during 2008. I hope that both Houses will find that
helpful. Nearer the time of laying, I shall be happy to arrange for
hon. Members to be briefed about the statutory instruments. I hope that
that will be useful.
I
have mentioned that we will be commencing some discrete areas of the
2006 Act early. The first is service complaints or the redress of
individual grievance, which includes the appointment
of the service complaints commissioner. Hon. Members might have noticed
the recent advertisement in the national press for that post. It is a
useful reminder that there are many issues aside from drafting
secondary legislation that need to be resolved before we can fully
implement the Act. We intend to introduce these important provisions in
early 2008. Therefore, the statutory instruments should be laid in the
autumn.
The hon.
Member for Aldershot asked whether there will be a mixed panel and who
makes that decision. It is the court administration officer who will
decide on the composition of the panel.
Mr.
Howarth:
That implies that there can be a mixed
panel. Can the Minister state that
categorically?
Derek
Twigg:
Yes, I can say that to the hon.
Gentleman.
I will give
a quick prĂ(c)cis of where we are and the statutory instruments
that we plan to bring forward. I can reassure the Opposition that they
will be briefed and consulted before the issues are considered by
Parliament.
Mr.
Howarth:
First, I thank the Minister for giving us
a thumbnail sketch of the orders and for telling us how he plans to
prepare us for the number of sittings that will be necessary to deal
with the secondary legislation that was always going to flow from the
Armed Forces Act 2006. I am grateful that we are not going to have 65
statutory instruments all in one go, or even individually. It would be
useful if the hon. Gentleman and I had a chat about how we group the
instruments. Perhaps the usual channels on our behalf could negotiate a
sensible arrangement for that to take place.
May I say from the outset that
the order is not a formality? The continuation order is the means by
which Parliament is able to review annually the disciplinary conditions
that apply to our armed forced. All of us are very conscious that
todays debate is not an academic issue. Our fellow citizens are
in uniform and fighting on two fronts. One is a high-intensity
war-fighting operation and the other an equally dangerous operation in
Iraq. Therefore, what we are discussing today closely affects them,
their morale and how they conduct their operations. I would not like
anyone to think that this was just another statutory instrument
Committee in which we wave things through and then disappear. The
orders are something that all of us, I hope, take very
seriously.
Derek
Twigg:
I am conscious of what he has said. I am
sure that the hon. Gentleman understands that we consider the matter to
be important. I have said that we will be happy to brief the Opposition
on the key issues before the legislation comes before Parliament. As he
rightly says, our armed forces do a tremendous job. We think about
their welfare all the time. The matter is very important and we will
give due consideration to it and the points that the Opposition
raise.
Mr.
Howarth:
I am grateful to the Minister and much appreciate
his offer of consultation. It was right and proper for the Government
to accede to the request by the Select Committee on the Armed Forces
Billvery strongly supported in another placeto replace
the original proposal of a five-year review with our recommendation of
an annual review. Although we are complying with the three individual
Acts of Parliament which require an annual review, we are also
undertaking the first annual review of the Bill that he steered through
the House at the end of last year.
The issue of the legality of
operations remains extremely important. It is absolutely imperative
that our armed forces understand that what they are doing is lawful and
what it is that they are entitled to do within the law. An interesting
report in yesterdays Daily MailI accord a degree
of reliability to that newspaper, as I am sure hon. Members on both
sides of the Committee dosuggested that Sir Alan West, a former
First Sea Lord, was concerned about the legality of operations in Iraq,
a view also held by a former Chief of the Defence Staff, Lord Boyce.
The report
states:
According
to senior military insiders, Sir Alans serious unease over the
legal basis for the invasion was shared by his fellow top commanders in
the armed forces...At one meeting, his Army counterpart General
Sir Mike Jackson reportedly voiced concerns that he could end up in a
prison cell in the Hague alongside former Serbian war criminal Slobodan
Milosevic.
I mentioned
that to reinforce the point that we are not discussing an academic
issue. Members of our armed forces must feel that what they are doing
is lawful and that they understand clearly the constraints in which
they operate.
Mr.
Bernard Jenkin (North Essex) (Con): The shadow Cabinet of
which I was a member took legal advice on the legitimacy of the
invasion of Iraq, and we had no doubts about its legality. However, I
do not wish to detract from my hon. Friends point that it is
the armed servicemen on the front line who could finish up being
subject to disciplinary proceedings, court
infractions and even international court infractions if they are found
to be in breach of international
law.
Mr.
Howarth:
I am grateful to my hon. Friend. Of course, the
spectre of the International Criminal Court lurks behind the matter,
but I shall not rehearse my previous arguments about
that.
The Minister and
the Committee will know of a number of court martial cases, but I shall
refer only to two: the case of Trooper Williams, which was a travesty
that caused grave unease and damage to the morale of the armed forces;
and that of Colonel Mendonca.The Conservatives strongly
support a recent statement
made by the Chief of the General Staff,
GeneralSir Richard Dannatt, who said:
Discipline and the rule
of law are core to everything we do, and are not optional extras
appended to the functions of our armed
forces.
He is absolutely
right and we thoroughly agree with him, as I am sure all members of the
Committee do. Our armed forces are not a bunch of mercenaries; they
operate under clear rules. It is the Committees job to ensure
that those rules are clear and fair, so that they recognise and reflect
the difficulties that our armed forces face in the field as they
confront an enemy of a kind that they have not before faced. The
suicide bomber is a wholly new phenomenon and it is right that we
should, whenever possible, give members of the forces the benefit of
the doubt.
My hon.
Friend the Member for Woodspring(Dr. Fox), the shadow
Secretary of State for Defence, is not here because, as the Minister
will know, he is privileged to be on duty in the Falkland Islands to
commemorate the 25th anniversary of the magnificent recovery of British
sovereign territory from the hands of the invaders, for which we should
thank the outstanding courage, determination and integrity of Her
Majestys armed forces. When Colonel Mendonca was acquitted, my
hon. Friend said:
The whole affair has
resulted in enormous expense to the taxpayer and unnecessary damage to
the reputation of the British Army. Those responsible for bringing
these charges need an urgent reappraisal of their procedures and
perhaps even their motives...A whiff of political correctness
hangs heavy over the case against Colonel Mendonca, with law officers
determined to have military officers
prosecuted.
I want to
make the important point to the Minister that there is an impression
that the Attorney-General was keen to have an officer, rather than
privates, put in the dock.
Derek
Twigg
indicated
dissent.
Mr.
Howarth:
The Minister shakes his head and that is entirely
understandable, but the fact is that the case backfired. The judge
concluded that there was no evidence fit to go even before the panel,
so people throughout the armed services and in this House asked
themselves why on earth the case was brought. The Minister knows that
there has been a pretty adverse reaction from a number of
people.
Patrick
Mercer (Newark) (Con): As my hon. Friend is probably
aware, I gave evidence in the Mendonca court martial. I found it
extraordinary that once the court martial had finished, he went on to
face action under AGAI, the Adjutant-Generals administrative
instructions, which underlines the point that my hon. Friend made. We
have been told by the armed forces that it is a perfectly routine
action. In the many dozens of courts martial in which I was involved
while serving, I knew of it being used only once. I would be interested
in his views on
that.
Mr.
Howarth:
I am grateful to my hon. Friend for his
authoritative intervention. He has flatly contradicted the Ministry of
Defence, which issued a statement that said:
It is entirely normal
for administrative action to be considered after a Court
Martial.
He has served on courts martial and has
not found that to be the case. I do not want to over-egg the issue,
butI want to say to the Minister that appearance is
everything, as Oscar Wilde said. There is an appearance, first, of
determination to get an officer at all costs, and secondly, of a man
being hounded out of the military. We are talking about a man who holds
a Distinguished Service Order, awarded for gallantry in the Iraq
campaign, yet having been acquitted he would have faced further
administrative action if he was not going to
resign.
Derek
Twigg:
Can I just be clear about the words that the hon.
Gentleman is using? He talked about appearances. What is his
partys position? Is it that there was a deliberate attempt and
that the due process for such situations was not followed? Or is it
that it was all about appearances and how it
looked?
Mr.
Howarth:
I am saying that we all have to be aware of how
it looks. What we do here is based on how we perceive things; what
matters is what appears on the television tonight. That is what the
public think is happening, regardless of what we understand.
[
Interruption.
] I will explain to the Minister.
There are concerns in many quarters that there was a political element
to the matter. He needs to be aware of that. He is the Minister, so he
has access to the papers, which I do not, and he might feel, or have
evidence, that there is absolutely no justification whatsoever for the
claims. He needs to ensure that the Government do not give the
appearance that they are anxious to ensure that an officer is put in
the dock.
Derek
Twigg:
Can I be clear that the Conservative party position
is that it was not a political decision and that due process was
followed?
Mr.
Howarth:
Our position is that we were not responsible for
seeing the evidence and judging whether an action should take place. My
hon. Friend the Member for Beaconsfield (Mr. Grieve) is not
the Attorney-General; the Attorney-General was part of the
decision-making process. I want an assurance, on behalf not only of my
constituents in Aldershot, but of all those in this House who have
constituents servingin our armed forces, that there is not a
political consideration on the part of the Government that an officer
should be brought to trial. I have it on reasonably good
authorityI would not have raised it otherwisethat that
is what the Attorney-General was about. I think that it is important
that that has not happened.
I also make the point that, not
only in this case but in others, these cases failed. A huge of amount
of public money was involved. His hon. Friend, the noble Lord Drayson,
told the other place on Monday that the total cost of the Mendonca case
and the others involved from the Queens Lancashire
Regiment, is nearly£7.5 million. That is a huge amount
of money.
The
Ministers knows that his Department is strapped for cash. We are
saying, of course, that there must be prosecutions where there is
evidence, but it is also a fact that the judgment of the prosecuting
authorities in the military has not been sustained by the
outcome of the cases. As I said, in the case of Colonel Mendonca, it did
not even go before a panel; the judge threw it out on the grounds of
insufficient evidence. What kind of prosecuting authority is that,
which ends up in that case, where the evidence is not fit to put before
the panel? In the case of the Paras who were acquitted, only Corporal
Payne pleaded guilty, and he has been sentenced. There are people who
are telling the Minister what is going on, but other people tell me
about what is going on. It is very important that we do not undermine
the morale of our armed forces, and I not am resurrecting Lord
Boyces mention of the armed forces feeling that they
are under legal siege, but it is important that we assure them that
that does not happen in those cases where there is obvious evidence
that prosecution will take place, and that they will not take place
simply to satisfy some kind of minority interest in the UK courts for
minority-interest soldiers. Four members were guardsmen and were found
not guilty in the last year.
We know that The Mirror
fabricated some pictures, which caused immense damage, and that
newspaper, apart from issuing an apology, should have been taken to the
Tower of London to our armed forces. That was absolutely despicable and
I am sure that my view is shared by
others.
We all need to
be very careful about the matter. If the Minister can enlighten us on
what my hon. Friend the Member for Newark was saying about
administrative action under the AGAI. I would be grateful if he
responded. On that subject, we have the ruling today from the House of
Lords on the Baha Musa and we clearly need to look at that judgment and
ensure that we understand exactly what the judgment says. However, I
understand that one of the Law Lords was of the view, not shared by the
others, that the British Government could not possibly have been
responsible for the control of Iraq at the time that that tragic
incident took place. That was the Governments argument and,
personally, I think that they were absolutely right. Unfortunately,
only one Law Lord agreed with the Government. However, it will raise
widespread concerns across the country if there is any suggestion that
wherever British forces are involved, regardless of the extent to which
they control the territory, their actions are going to be subject to
second guessing by the courts.
I refer to remarks made
yesterday by my hon. and learned Friend the Member for Torridge and
West Devon (Mr. Cox). He said, in the connection with the
Serious Crime
Bill:
Is it
surprising that people in the judiciary and the wider society are
saying that they can no longer trust the House of Commons to stand up
for their liberties? That must be done by the judiciary. That argument
is always used to justify the power of judges to take away from the
House its role as a vigilant defender of human rights and
liberties.[Official Report,12 June
2007; Vol. 413, c. 396.]
That is very important. We, not
the judges, are the ultimate guarantor of the liberties of the people
of this country. It is our responsibility, and I am sure that every
Member of this House takes it extremely seriously.
The Minister seems to have been
slightly on the defensive. I am not attacking him; he is relatively new
to the post, in any case. However, he must be aware that
it is vital to ensure that, in implementing the disciplinary regulations
that we are discussing, first and foremost we recognise the incredibly
difficult task that our armed forces face and the extraordinarily high
standards that they generally maintain. Prosecutions should proceed
only in cases in which there is overwhelming evidence.
So far as the other two orders
are concerned, the Minister has responded to my concern about mixed
panels. As to changing the name to the Royal Navy Police, if the Royal
Navy is happy with it, that is fine so far as I am concerned. I welcome
the opportunity to debate these matters. It is important that our armed
forces know that we in this House want to do our best by them, and that
we will seize this opportunity to debate how best to deliver for them
the conditions that will enable them to do the extraordinarily
difficult task that we have laid upon them, which they discharge with
such commendable ability on behalf of our
nation.
Mr.
Jenkin:
Thank you, Mr. Hood. It is a privilege
to serve under your chairmanship on a Committee that is dealing with
such sensitive matters in relation to the welfare and legitimacy of our
armed services. As my hon. Friend the Member for Aldershot points out,
they are at this minute carrying out dangerous and hazardous tasks, at
great personal risk. Indeed, they have already made very great
sacrifices.
I am
struck by the fact that this instrument is born of an Act of Parliament
dating back to 1955, when the world was a very different place. The
Armed Forces Act 2006 is merely an extrapolation of the previous
legislation, but it reflects the changed legal environment in which our
armed forces have to operate. It is that aspect of the instrument that
I wish to address.
Many concerns have been
expressed about the integrity of the chain of command. Back in 1955,
there would have been little doubt that an armed serviceman refusing to
obey orders would have been disciplined, and the discipline against
that armed serviceman would have been upheld. We no longer operate in
that environment. I am struck by the fact that the two servicemen who
refused to deploy to Iraq have never been brought to trial. I suspect
that that is because the Government did not wish the legitimacy of the
armed conflict in Iraq, and our engagement in it, to be exposed to
legal argument in a court of law. Although I believe that any such
argument would have been overturned and the Governments
position upheld, that was a place to which the Government did not
wishto
go.
Since that
deployment, there have been innumerable cases of armed servicemen
brought to book over their actions while on operations. Some of those
actions were reprehensible, some of them were shameful and some were
deeply counterproductive. In the so-called war on terrorismthe
campaign for the west to achieve the ascendancy not of its own power
but of its legitimacywe are sorely undermined by people who,
acting on our behalf, let us down when it comes to the highest
standards of legality and legitimacy. Those who perform illegal acts
are undermining the legitimacy of the war on terrorismalthough
I am always wary of calling it that.
The problem is that we have
adopted a legal system under which it is not the commanding
officernor even the armed forces as a wholewho acts as
the final judge of legitimacy. It is the international legal system.
Our Government have signed a treaty under which we adhere to the
International Criminal Court. As my hon. Friend the Member for
Aldershot points out, that is why it is possible for a British chief of
staff to submit that he may finish up in a court in The Hague alongside
war criminals such as Slobodan Milosevic, arraigned for war crimes on
the basis of international jurisdiction rather than the jurisdiction of
our own country. That causes great problems and dilemmas for our armed
forces.
It severely
undermines the chain of command upon which the integrity of our armed
forces depends. I invite the Minister to deny this if it is not true,
but I understand that the joint command and staff college is now
teaching an 11th principle when it comes to the conduct of military
operations. That principle is legitimacy, and it has to be applied by
everyone in the command chain. All have to apply a test of legitimacy
to the orders that they are given. Although few people in the armed
forces do not do so, I would expect it to be drilled into the ethos of
the British armed forces in any case. However, we are now legally
required to imprint that ideology into the doctrine of the armed
forces; if we fail to do so, we could somehow be failing in our duty to
ensure that every order and every action carried out by our armed
forces, in any theatre of operations, is legitimate.
The problem is that that
creates a potential conflict between what military officers and
military personnel are required to do and what they may feel. It also
means that we are faced with the Government having to demonstrate that
they have exhausted every opportunity to prosecute a potential breach
of that legitimacy, whether or not they believe that there has been a
genuine breach. Indeed, failure to exhaust domestic remedies will
itself allow a case to be brought before the ICC.
I bring before the Committee
the case of Trooper Williams of the 2nd Royal Tank Regiment, whom I
believe I met when the regiment was on the armed forces parliamentary
scheme about 12 months before the regiment was deployed on the invasion
of Iraq.He was court-martialled subsequent to the invasion. He
had been exonerated by his commanding officer. He had been through all
the disciplinary procedures that one would expect of his regiment. But
that was no longer good enough for the Ministry of Defence and possibly
no longer good enough under the auspices of the International Criminal
Court. He had to be brought before a military tribunal, his career
wrecked and his life ruined before he could be exonerated under the
proposals we are debating today.
Mr.
Howarth:
What actually happened is that the
Attorney-General said that the military process had failed and there
was no other way in which the case could be reopened. That is why the
Attorney-General said that it should be heard in a civilian court.
Fortunately, the judge threw it out, lock, stock and barrel. It was
ultimately a civilian court that tried a man who was out on a
war-fighting operation.
Mr.
Jenkin:
I apologise if my memory is at fault, or my
knowledge is inadequate. My hon. Friend amplifies the point, that
somehow the legal procedures afforded by the military were inadequate,
so we are trying today to ameliorate the militarys legal
procedures in order to satisfy the disciplines imposed on our legal
system by the International Criminal Court.
I repeat, I fully understand
why it is desirable for our military discipline procedures to have the
maximum legitimacy, but if they are to be regarded as inadequate at the
outset, there is nothing we can do. In the final analysis, we should
stick up for our armed servicemen rather than kowtow to an
International Criminal Court on which judges will serve who have no
comprehension or willingness to understand the national interests that
have decided we should put our men in harms way in these
theatres of
operation.
I am
reminded of the death on the rock casea cause celebre in the
armed forcesin which members of our armed forces gunned down
people who were known to be terrorists. There was no doubt in their
minds that they thwarted a terrorist operation and saved lives, but
although the case was heard by the European Court of Human Rights, the
same argument applies: that judges were adjudicating on a matter in
which they could not conceivably have understood the complexity of the
national interest that was involved. It finished with European judges
requiring the British Government to compensate the families of IRA
terrorists for their supposed murder.
An assumption at the heart of
the international legal system is behind these proposals: that legality
is an absolute and that it can be internationalised in a totally
impartial way. There is a fundamental failure in the
Governments understanding of international legality, that that
is what we should be concerned with and that armed servicemen should be
ordered, disciplined and prosecuted according to international
procedures. We should have confidence in our national procedures
without needing to submit them to international procedures, which are
making the running of military operations, the discipline of the armed
forces and, ultimately, the welfare of armed servicemen very much more
difficult to deliver.
3.14 pm
Derek
Twigg:
This has been an interesting and
enlightening debate. I hope we will still have the Committees
full support for the proposals.
Of course, we recognise the
tremendous work that our armed forces do in difficult circumstances.
They are the best in the world and we want to ensure that they are
supported in the best possible way; there is no difference between the
parties in that respect. I have been in this job for only a few months,
but the more I see of our armed forces, the more impressed I am. They
do a tremendous job for
us.
The hon. Gentleman
mentioned the Falklandsbriefly, and slightly off the track. My
hon. Friend the Minister of State has been out there to represent the
Government. I am sure that he will play an important role in the
commemorations, which start here tomorrow when we have the main
veterans event in Horseguards and on the Mall. It is right that we play
proper tribute to our Falklands veterans and what they
achieved.
The hon.
Member for Aldershot mentioned a number of issues that I should like to
deal with briefly. I tried to determine the exact position of the
Opposition with regard to Colonel Mendonca. They say that there is an
impression that a political decision has been made, but when I pushed
the hon. Gentleman he was not prepared to say that that was his view
orthe view of the Conservative party. I can absolutely refute
that any political decision was taken. The army prosecuting authority
considered that there was sufficient evidence to bring the
case.
There is a
general issue here. Credible allegations of serious wrongdoing have to
be and are investigated, and where evidence is independently assessed
it can justify a prosecution. The application of robust and fair
justice must then follow. I can do no better than to reiterate the
quote that the hon. Member for Aldershot gave before. As the Chief of
General Staff said, the discipline and rule of law lie at the core of
what the armed forces do.
Mr.
Jenkin:
I half-endorse what the Minister says. We do not
argue that military discipline must not be enforced, but the question
is whose law is it? Is it the law decided by Parliament in the national
interest or is it law that reflects the national interests of other
nations? The problem with the Mendonca case is not that it was
prosecuted for political motives, but that the international legal
requirements now require the case to be prosecuted way beyond what
would have been considered reasonable under the British disciplinary
procedures before the International Criminal Court or the European
Court of Human Rights, and way beyond what is reasonable in order to
satisfy judges who have no interest in our own national
interest.
Derek
Twigg:
The hon. Gentleman started his contribution earlier
by referring to the fact that we mentioned the 1955 Act. That was some
time ago. He described how things were then. He said that the service
chiefs and the chain of command seemed to be able to more in terms of
discipline than what they could today. The point is that the 2006 Act
is a modern Act. It has been subjected to significant scrutiny in both
Houses. It is an Act for the future working the law as we operate
today. That is the key point
here.
This is not
about throwing the baby out with the bathwater and getting rid of
traditions or procedures that work well today. It is about having an
Act that is fit and well for the 21st century. The other thing that I
should like to say to the hon. Gentleman concerns the case of Trooper
Williams. The general point that I would make here is that a person who
has an honest belief of an immediate threat to life and acts reasonably
in the circumstances as he sees them, will not have acted unlawfully.
The hon. Member for Aldershot will remember that there was quite some
play on the issue of the rules of engagement during the debate in the
other House and which I, again at his invitation, put on the record in
the House of Commons too. We made that clear during the proceedings
onthe
Bill.
Mr.
Jenkin:
The Minister makes a very broad comment that, as
in the case of Trooper Williams, any person taking life in order to
protect himself or his colleagues is not acting unlawfully. But who is
to decide that? It used to be the commanding officer of his
battalion. It used to be the armed forces. It is now an international
court. The problem is that however strong the case may be, because of
the political nature of so many military operations today, people like
Trooper Williams are subject to a highly political process. That is not
in the interests of the armed forces as a whole and certainly not in
the armed service men and women who are caught up in that process,
whose careers and lives are destroyed. They are people of whom we ask
inordinate self-sacrifice on behalf of our
country.
Derek
Twigg:
I repeat that the issue of disciplinary matters in
the armed forces, including the decision whether to prosecute and go to
court martial, is not a political decision; it follows a proper lawful
procedure. The hon. Gentleman makes the point again about the
obligations that we have internationally. The fact is that we have
obligations under international treaties and conventions, including the
Geneva convention for one. It is important that we make that point. The
prosecution of Colonel Jorge Mendonca was under the Army Act 1955,
which is our own law. So I do not accept the hon. Gentlemans
argument.
Mr.
Howarth:
The Minister suggested that I am somehow raising
a matter that is not backed by evidence. What I am saying is that there
is evidence about the case of Colonel Mendonca.
The Daily
Telegraph reported that, since investigations started against
Colonel Mendonca:
there
have been claims that he was charged because Army chiefs and
politicians wanted officers on trial alongside their men. The claims
were backed by documents written by a senior Army commander and
obtained by The Daily Telegraph which suggested that there was a
determined effort to identify officers who could be put on trial for
the misconduct of their troops in
Iraq.
I am not saying
that that evidence is of biblical quality, but I am saying that these
are the views that have been expressed. Colonel Black, who was
previously the commanding officer of the Queens Lancashire
Regiment, said:
The wrong people faced
charges and Jorge...was made to appear because the Army wanted to
put an officer on
trial.
The Minister will
be aware of those concerns. It is his duty to try to substantiate those
concerns; it is not my duty as a Member of the Opposition to try to
substantiate them. It is his duty to be aware that those concerns are
being legitimately expressed and he and his colleagues have a
responsibility to investigate those concerns. I may say that the
members of the Army Board also have a similar responsibility, although
General Jackson refuted that; he said that he did not believe that to
be the case. However, there is a body of opinion that believes that
they do.
The
Chairman:
Order. I have been super-generous in allowing
interventions to become parts of speeches and contributions. I call the
Minister.
Derek
Twigg:
I again note with interest that the hon. Gentleman
does not bring forward any evidence; he quotes what he has read in a
newspaper. I can only repeat what I said before. We have a robust
system of justice, which follows due process and if there are credible
allegations made against someone, they need to be investigated. I
cannot be much clearer than that.
Mr. Hood, I do not
want to test your patience any longer. We have had a reasonable
discussion about some of these issues. I believe that the measures
being proposed today are the right way forward and follow on from the
Armed Forces Act 2006. I repeat my assurance to the Committee to keep
them informed and to brief them on the issues as they come
up.
Question put
and agreed
to.
Resolved,
That
the Committee has considered the draft Armed Forces, Army, Air Force
and Naval Discipline Acts (Continuation) Order
2007.[Mr.
Twigg.]
Resolved,
That the Committee has
considered the draft Armed Forces (Alignment of Service Discipline
Acts) Order 2007.[Mr.
Twigg.]
Resolved,
That
the Committee has considered the draft Armed Forces (Service Police
Amendments) Order 2007.[Mr.
Twigg.]
Committee
rose at twenty-four minutes past Three
oclock.