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Clause 12 [Disobedience to lawful commands]:
Clause 17 [Disclosure of information useful to an enemy]:
[Amendments Nos. 33A to 34B not moved.]
[Amendment No. 35 had been withdrawn from the Marshalled List.]
Clause 18 [Making false records etc]:
Lord Astor of Hever moved Amendment No. 37:
The noble Lord said: I shall speak also to Amendments Nos. 40, 41 and 201A. Amendment No. 37 seeks a belated response from the Government. My honourable friend the Member for Aldershot in Committee in another place was promised a note clarifying when civil servants are accountable to the military justice system. I would be grateful if the Minister could respond now or in writing to me before Report, as this important issue seems to have slipped through the net.
Amendments Nos. 40 and 201A deal with the inaccurate certification of service material, which was constructively debated in Committee in another place. Amendments tabled by my honourable friend Robert Key raised important questions about the certification of military equipment. If ships and aircraft are included in the Bill as equipment but must have proper certification, equipment used by the Army should also be included. There is a safety issue here: tanks and artillery guns, along with other equipment, can be dangerous to operate. They must of course be certified correctly, and our amendments seek to achieve that by ensuring that “service material” as defined in Amendment No. 201A is included.
In Committee in another place the then Minister, Don Touhig, rightly found fault with our initial definition of service material. Therefore, we have provided a revised definition in Amendment No. 201A to the Supply Powers Act 1975 that is based on extant legislation that is sufficiently wide to meet the Minister’s concern. The amendment tabled by the noble Lord, Lord Garden, seeks a similar redefinition and we support his objectives, but the Liberal Democrat amendment limits the expansion of applicable equipment to combat vehicles, rather than service material. We have drafted the definition of “service material” to ensure that it is wide enough to cover all applicable equipment. In Committee in another place the Minister gave a clear assurance that the Government would consider this further and that he would write to Committee colleagues. We await with anticipation the Minister’s response.
Amendment No. 41 would insert a new clause entitled “Dangerous conduct”, which seeks to clarify how our Armed Forces are affected by health and safety legislation. This was also debated in Committee in another place. Again, my honourable friend the
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Earl Attlee: I remind the Committee of my interest as a serving officer in the TA, subject to military law as I speak. I have tabled Amendment No. 38 in this group. Clearly, it is vital to our democracy that Ministers are honestly and accurately briefed by the military. Noble friends in this House have been led astray because of inaccurate briefing from the military and have had to apologise to the House at the Dispatch Box. My amendment would ensure that a specific offence is committed if Ministers are inaccurately briefed in the way that it describes.
Lord Garden: I have tabled one amendment in this group but I shall speak first to the other amendments. We are generally supportive of those amendments, particularly Amendment No. 37, which proposes that the offence should apply to civilians. However, I have a problem with the aspect of the offence proposed by the noble Earl, Lord Attlee, that connects parliamentary business and the supply of false information. It seems to me that supplying false information to a Minister will probably be a reasonable offence under military law without having to attach additional burdens of proof regarding the parliamentary business aspect.
Several parts of the Bill deal with what is required of official records. Amendments Nos. 40 and 41, which stand in the name of the noble Lord, Lord Astor of Hever, and which concern records and dangerous conduct, are entirely sensible. My Amendment No. 59 in this group relates to what is covered by inaccurate reporting. Clause 36 is entitled “Inaccurate certification”, but it might be much better if we ordered the Bill in such a way as to have all these matters in one place. In any event, we need to realise that the technology is moving on. I accept the comment of the noble Lord, Lord Astor, that even with the inclusion of land combat vehicles the wording may still be too narrow, but we certainly do not want to restrict the provision to aircraft and ships. The technology that is associated with all forms of military activities is becoming highly complex and an audit trail of servicing will be needed to record who has done what to equipment to ensure that everything is all right.
Amendment No. 201A concerns the definition of “service material”. I have a slight worry that it is too narrow; it focuses too much on material used for defence and does not include things that are enabling.
I am sympathetic to the amendments. I believe that these provisions could be redrafted to make them clearer and to ensure that we have them all in one place, and I hope that the Government will want to do that. That would cover us in future rather than simply repeating what was in the service discipline Acts.
Lord Drayson: Clause 36 creates an offence relating to the signing of false certificates. The certificates are produced as part of the formal maintenance procedures for ships, aircraft and aircraft materials. Amendment No. 59 would extend the offence to cover certificates
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Amendment No. 37 would apply the offence of making false records to civilians subject to service discipline. We believe that civilians accompanying the Armed Forces should be subject to service discipline only so far as is essential for operational effectiveness and fairness. It would be wrong to make them essentially the same as service personnel when it comes to disciplinary offences.
Nevertheless, I was slightly tempted by Amendment No. 38, which would provide for up to two years’ imprisonment for giving me incomplete information about these amendments. More seriously, it would extend the offence of making false records far beyond the legitimate disciplinary purpose of ensuring that members of the Armed Forces do not make false official records or suppress them. It would cover the giving of “insufficient” or “incomplete” information, perhaps at a meeting or where a service man or woman knows that the Minister needs only a summary of the main facts, rather than complete information. It would hamstring the Armed Forces in their ability to make judgments about what information to provide to Ministers. There is clear MoD guidance on the provision of information to Ministers, which stresses the requirement for meticulous accuracy and highlights the fact that the consequences of misleading Parliament are severe and that those who do so may be held to account. But Amendment No. 38 is too wide and should be rejected.
Amendment No. 39 is unnecessary. It specifies that in Clause 18 the definition of a document should include any “electronic or computer document”. This is already covered by the definition in subsection (5); a document includes,
Amendment No. 40 concerns inaccurate records. It would replace and extend Clause 36. Its scope would be greater than the current Clause 36 because it would relate not only to ships and aircraft but to any service material, and service material, as I will explain, would cover anything needed for defence purposes. As I said on Amendment No. 59, Clause 36 is restricted to the formal certification procedures for aircraft, aircraft material and any matter relating to the seagoing or fighting efficiency of Her Majesty’s ships. It is not appropriate to extend such formal procedures to a huge range of other service materials. Other offences apply to any inadequacy and record keeping—for example, disobedience to orders or neglect of duty. The amendment is therefore unnecessary. The amendment would also extend the offence to civilians, and I have already explained why I do not think that that would be right.
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Amendment No. 41 concerns dangerous conduct. The proposed new clause in Amendment No. 41 would create a new offence of using service ships, aircraft and materials in a way that is likely to injure someone. It would apply both to service personnel and to civilians subject to service discipline. We believe that this is unnecessary in disciplinary terms, because dangerous conduct is already covered in the Bill by disciplinary offences such as neglect of duty, hazarding a ship and so on. The worst cases might also come within criminal offences such as manslaughter, but the proposed offence is far too wide. It does not require negligence and it does not require risk of serious harm, yet it seems to cover accidentally dropping some equipment on someone’s foot.
The amendment is also new in that it would apply to civilians subject to service discipline. It would effectively make criminal the careless handling of service material by a contractor or, for that matter, by a member of a service family in such a way that someone is likely to be injured. It is often tempting and sometimes seems attractive to add or create new offences, but this would be the wrong way to deal with dangerous conduct by contractors—even more so by other civilians subject to service discipline.
The new clause refers also to “service material”, a definition of which is provided in AmendmentNo. 201A. That definition of “service materials” would cover anything required for defence anywhere in “the Commonwealth”. I have already explained why I think that the proposed amendments using that term are too wide and would further complicate the already excessive requirements of the proposed offence. I wrote to the noble Lord after our debate on 24 July and the matters were dealt with in a memorandum to the Select Committee on the Bill.
I ask noble Lords not to press their amendments.
4 pm
Lord Garden: The Minister reads from his brief without responding to our debate. Regarding my amendment, which aims to widen the remit of incorrect certification of equipment, perhaps I may give him an example. He stated that it would be unduly bureaucratic for land systems to be included in addition to naval and air systems. However, in modern warfare, we increasingly need to ensure that there are proper devices for the identification of friend and foe. Such devices are and have been fitted to aircraft but, as we discovered in Gulf War 1, they are key pieces of equipment for the land forces, too, if they are not to suffer friendly fire incidents. I assume that the servicing and certification of such equipment, whether it is for the air or ground element, is equally important and that people should be held equally responsible for discharging their duties. Therefore, there must be a supervisory system of oversight to make that happen. This is not a question of there being a bureaucratic process; it is a question of life-and-death systems that depend on people correctly filling out records. Before I decide whether to press my amendment, I would like to hear a response that is not just about bureaucratic systems.
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Lord Drayson: The noble Lord makes a fair point relating to the complexity of the military equipment in some cases and how that can be fundamental to its purpose and to issues such as those which he has described, including combat friend-or-foe identification. The question is how we produce a definition of the type of equipment—not relating to aircraft or ships but operating within the land environment—that would be covered by this clause. A definition that related to all service material or to all combat land equipment would be too broad.
I have listened to the noble Lord’s arguments and I will go away and think about this matter. The important point is that we produce a definition for service equipment used outside the air and maritime environment that enables us to discriminate between those service materials for which this clause would not be appropriate and those materials that we felt were sufficiently important and fundamental either to operations or to the safety of our Armed Forces. I have taken on board the noble Lord’s points and will see whether it is possible to do that in the Bill.
Lord Astor of Hever: I apologise to the Minister for interrupting him. I misheard him and thought that he was speaking to Amendment No. 36.
I am grateful to the noble Lord, Lord Garden, for supporting our amendments. The Minister has given a full answer to them and there is much to digest. He said that he would go away and think about some of these issues. The noble Lord, Lord Garden, said that there could be some redrafting. We will read Hansard carefully and, in the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 38 and 39 not moved.]
Clause 20 [Unfitness or misconduct through alcohol or drugs]:
Lord Garden moved Amendment No. 42:
The noble Lord said: Clause 20, under which I have tabled Amendments Nos. 42 and 43, deals with unfitness or misconduct through alcohol or drugs. Although my amendment seems a fairly minor typographical one, it is important that subsection (2)(c) and (d) should provide a way out of being found guilty if a drug is taken or administered on the orders of a superior officer.
The clause does not quite meet the situation in which service men and women find that they need to take protective drugs—for example, in theatres of operations where they may be exposed to biological agents or whatever. Often, they are given advice rather than an order and are left to make a decision one way or the other. In the past, that advice has occasionally been quite strong but it has been short of an order, and one needs to take that into account.
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Under this clause I also want to raise the question of performance-enhancing drugs, into which a great deal of research is being carried out. Again, I am looking to the future of warfare. In the United States, such drugs appear to have had an operational status. I should like the Minister to assure us that the clause does not give a superior officer the authority to order the use of a performance-enhancing drug. I think of a case in April 2002 in which two American pilots killed four Canadians on the ground and injured eight others. The subsequent inquiry into that friendly fire incident revealed that the pilots had been taking amphetamines—legally from the American perspective—supplied by the US Air Force. We certainly did not ever do that when I was in the Air Force. I trust that that is the case today and that we are not in any way legitimising that sort of event. Does the Minister believe that the clause addresses the problem or should we insert an amendment that would ensure that we did not administer to our service people drugs designed for performance enhancement?
So I have two questions: one concerns the advisory use of drugs; the other relates to whether there is an absence in the clause of a prohibition of the use of drugs for reasons other than protection. I beg to move.
Earl Attlee: It seems to me that the noble Lord, Lord Garden, is talking a lot of sense on both points.
Lord Drayson: I agree with the noble Earl, Lord Attlee—the noble Lord does talk a lot of sense on these points. He is right that a development is taking place in defence research on the whole area of performance-enhancing drugs. I shall go away and reflect on whether we need to be clearer about those drugs, but our central point of concern is that the amendment is broad: it would be a defence to take advice from a superior officer, whatever the reason for that advice, even if the officer was not medically qualified.
The central point is that the advice needs to come from an officer who is medically qualified. The noble Lord mentioned his own past experience within the military of the way in which these things were done. It is very important that the advice originates from medical advisers and is then passed on through the chain of command. That situation will be covered by subsection (2)(a), which provides a defence where a drug is taken or administered on medical advice. Under those circumstances, the serviceman would not be guilty of an offence.
Therefore, there are two important points. First, it is important that the advice originates from someone who is medically qualified and, secondly, it is important that the advice comes down through the chain of command in a way that validates that the advice, once given by the personnel's chain of command or commanding officer, has come from someone who is medically qualified.
I will take on board the point he makes about performance-enhancing drugs because there are developments on this issue. Having said that, I hope that the noble Lord will feel able to withdraw his amendment.
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