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Viscount Slim: Before the noble Lord sits down, may I say that the word “enhancement” mentioned by the noble Lord, Lord Garden, worries me slightly? There are times when great fatigue sets in. Let us say, for instance, that a soldier has 30 miles to go to a friendly border, or such like, and that there is a pill or two that will help him to get there if he is greatly fatigued or stressed. It is a helpful thing; it is not a poisonous drug, or anything like that. I am a little worried about the word “enhancement”. On operations I have carried a pill in my pocket in times of dire trouble, which is taken mostly for fatigue. You take and it keeps you going for 24 hours. You had better get there or you crash out.
Lord Williams of Elvel: The noble Viscount, Lord Slim, makes a good point. Is there a definition of performance-enhancing drugs that could be put into the Bill?
Lord Drayson: I am grateful to my noble friend and for the points made by the noble Viscount, Lord Slim. A considerable amount of research is taking place in this area of defence. Modern developments in the pharmaceutical and biotech industry have led to the possibility of a great broadening of the potential use and misuse of pharmaceuticals to both enhance performance and to change mood. I will consider whether the clause as drafted is sufficiently clear to take that important point into account.
Lord Lyell of Markyate: I rise briefly to support what the noble Lord, Lord Garden, said, and to ask the Minister to clarify the question of advice. It seems to me possible that strong advice could be given by a superior officer that did not emanate from a doctor, but which none the less would greatly influencethe conduct of a subordinate. I do not think that the advice should be quite so narrowly construed as the Minister seems to have in mind. If you get advice from a superior officer, that should be sufficient.
Lord Drayson: I absolutely understand the noble and learned Lord’s concerns. This is an important point because we need to ensure that we have sufficiently defined the issue so that it is clear that if a soldier receives advice from his chain of command, it has gone through a validated procedure and originated from someone who is medically qualified. It would be wrong for people who are not medically qualified, and who have not been authorised to do so by the chain of command, to give advice to our personnel on the use of pharmaceutical agents in that way. Making it absolutely clear in the Bill is a positive step.
Lord Craig of Radley: I am not absolutely happy about this. The medical advice is about the safety or otherwise of the drug. The use of the drug in order to enhance performance, or whatever it happens to be, may be an operational view. I am not too happy that the advice which emanates from the medical side is necessarily sufficient defence if the subordinate has been ordered by his superior to take a particular drug in order to enhance his performance. That enhancement
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Lord Drayson: Yes, I absolutely agree.
4.15 pm
Lord May of Oxford: I do not know a great deal about this subject, but there are at least three categories: medical, operational and ethical. Some of these performance-enhancing drugs will have the character, as the noble Viscount so clearly pointed out, of being a lesser evil. Better to take it than just fall over where you are. As I understand it, however, some of the things under consideration are designed to give an extra edge of one kind or another to frail humans. All three dimensions are involved in those: operational considerations are best left in the hands of the military; medical considerations are best left in the hands of informed people; and, ultimately, there are ethical questions about which drugs are used and which are not. I therefore welcome the Minister’s recognition that it would be good to sharpen the definitions in this part of the Bill.
Lord Garden: I am most grateful. It has been a useful short debate on an important and developing subject.
I am not sure that I totally follow the Minister’s lead on the question of “orders or advice” from a senior officer. I understand that in practice advice should come from the medical side. However, we are talking about an offence of unfitness or misconduct through alcohol or drugs. If a serviceman is strongly advised by a superior officer to take a drug which causes him to be unfit or to be guilty of misconduct, that should be a defence. It is irrelevant that the practice ought to be through a medical adviser. I hope the Minister will take that away and look at it again, so that we have that sorted by Report stage.
The debate on performance-enhancing drugs is the more important point. I totally take the thoughts of the noble Viscount, Lord Slim, that you can have a performance-enhancing drug that may keep you going on the ground, but which may cause you not to be able to fly as accurately as you otherwise might when in the air. It is a difficult judgment, and there is also the ethical question that has just been raised.
This is an opportunity to lay down some ground rules about the use of such drugs: who is responsible and what happens if the operational decision is made to give a performance-enhancing drug which leads to a problem, such as the American pilots had with their friendly fire incident. Does that become a defence against unfitness or misconduct through alcohol or drugs—or, indeed, other offences such as careless or dangerous flying, or whatever?
I am most grateful that the Minister has offered to look at this paragraph. I am sure we will all be content to work together to try to get something on Report. Until then, I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
Clause 21 [Fighting or threatening behaviour etc]:
Lord Astor of Hever moved Amendment No. 44:
The noble Lord said: I shall speak also to Amendments Nos. 45 to 48.
The purpose of these amendments is to make harassment of one member of the Armed Forces by another a specific and recognised offence. It follows from both the Deepcut report and the agreement recently made and published, with extensive supporting evidence, between the Armed Forces and the Equal Opportunities Commission.
Harassment is easier to recognise than define, and is often more evident from the point of view of the victim than that of the perpetrator. AmendmentNo. 46 therefore includes a perception dimension:
It also provides for the minor sentence of a service corrective order to address repetition. The whole thrust of the outcome of the EOC report is the need to stop the offence and to prevent repetition.
Amendment No. 45, to substitute “or” for “and”, makes it clear that this offence can be committed without it being likely to cause a disturbance. I beg to move.
Lord Garden: I support the amendments in this group tabled by the noble Lord, Lord Astor of Hever. After the Deepcut review, this is an important amendment, and it has our full support.
Lord Drayson: The offence as drafted, like the offence which it replaces in the existing service discipline Acts, is designed to prevent specified types of misbehaviour when they are likely to result in a disturbance. It recognises that there is a low level at which such misbehaviour between service personnel should not automatically be an offence. The clause therefore limits the offence to where it is serious enough that a disturbance is likely. I understand the arguments that the noble Lord made as a result of what we learnt from the reports on Deepcut and so forth, but Amendments Nos. 44 to 48 would make any insult, for example, an offence, even if there was no risk of a disturbance.
They would also make any harassment an offence. Harassment is already covered by the comparatively new criminal offence of harassment under Section 2 of the Protection from Harassment Act 1997. The inclusion of harassment in this clause is therefore unnecessary. Moreover, it would create an offence which, because it could be committed by a single incident, would be inconsistent with the 1997 Act, under which harassment depends on a course of conduct.
Finally, these amendments provide that thecourt martial can impose a restraining order under Clause 228. We believe this is unnecessary as a restraining order is not a punishment and so is not precluded by
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Amendment No. 49 would extend the offence to ill-treatment by a person who is not the victim’s superior officer, but is pretending to be. This is clearly outside what this offence is really about, which is the abuse of authority. There are other service disciplinary or criminal offences that would be more appropriately used where the offender only pretends to be a superior.
Earl Attlee: I shall exercise some judgment and shall not move Amendment No. 49.
Lord Astor of Hever: I thank the noble Lord, Lord Garden, for his support. I am grateful that the Minister understands our arguments. From what he said, it appears that our amendments are superfluous. He said that harassment is already covered by another Act. We will need to look into this carefully, and we may come back to it on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 45 to 48 not moved.]
Clause 22 [Ill-treatment of subordinates]:
Clause 24 [Damage to or loss of public or service property]:
Lord Drayson moved Amendments Nos. 50 and 51:
(a) he does an act that causes damage to or the loss of any public or service property or any property belonging to another person subject to service law; and (b) either- (i) he intends to cause damage to or the loss of the property, and there is no lawful excuse for his act; or (ii) he is reckless as to whether he causes damage to or the loss of the property. (a) negligently, he does an act that causes damage to or the loss of any public or service property; or (b) he does an act that is likely to cause damage to or the loss of any public or service property and- (i) he is reckless as to whether he causes damage to or the loss of the property; or (ii) he is negligent.” “(a) in the case of an offence under subsection (1), ten years; (b) in the case of an offence under subsection (2), two years.”On Question, amendments agreed to.
Clause 24, as amended, agreed to.
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Clause 25 [Misapplying or wasting public or service property]:
Lord Garden moved Amendment No. 52:
The noble Lord said: I rise to speak to Amendments Nos. 52 and 53, which are amendments to Clause 25. I assume that the Minister is very much in favour of this clause as we have seen, by virtue of the National Audit Office, that his own department is sometimes negligent in this respect.
My amendment attempts to try to ensure that this clause is not applied too rigorously. Given NAO reports over the years, that would mean that the military justice system would grind to a halt since waste appears to be endemic. It involves a more serious point about who we are we trying to catch with this approach. Let me take a concrete example. We keep discussing the eight Chinook HC3s, which must presumably fall within the category of having been authorised to be modified in such a way as to cause a waste of service property—to the tune of £150 million, or whatever it is.
Who does this clause catch? There is a chain of people, some of whom knowingly do it—presumably because they have the expertise—and some perhaps unknowingly. Or is it really aimed at very junior personal doing minor wastage on units? If so, that would be unfortunate. My amendments are probing in nature to show exactly where the buck will stop because it could be an important clause if correctly targeted. I beg to move.
Lord Astor of Hever: Although I accept that these amendments are probing, we support their thrust. We feel that service personnel should be guilty of a Clause 25 offence only if they knowingly waste or misapply service property. If they are ordered to do so, they should not be charged under this clause. If a serviceman or servicewoman is found guilty of this offence, it will stay on their record and may seriously affect their career.
Earl Attlee: Perhaps I may illustrate a situation from my experience which shows why this amendment is necessary. A senior NCO condemned a winch on a heavy recovery vehicle. He misdiagnosed the failure of the winch, but he did not realise he had misdiagnosed it. The winch was worth £15,000 and we did not have one in stock. So, if one wanted to investigate what went wrong, one might decide to prosecute the serviceman for making a technical error. The noble Lord's amendment would stop that unnecessary and inappropriate prosecution taking place. Therefore, I support the amendment.
Viscount Slim: I am not too clear on this point. What happens if on operations—say there is an ambush or something—a vehicle convoy is going along and everyone has to take to their feet to get into the hills, but before doing so they destroy the vehicles so that the enemy cannot have them? Does that involve “knowingly” wasting? I am not sure how this firms up operationally. A lot of people destroy things on operations so that the enemy cannot have them.
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Lord Drayson: I agree with noble Lords focusing on this very important area. The noble Lord, Lord Garden, raised the point on the Mark 3 Chinook helicopters. He knows very well the importance of making sure that we do not misapply or waste public money. This is a difficult area because we have to ensure that we are defining the offence in this clause, such that it takes into account a reckless or negligent misuse or waste where such negligence or misuse could have serious consequences for the unit. Therefore, we believe that it is important for us to maintain that wider definition, not to have it limited by the wording, “so knowingly to do”. The important point concerns recklessness or negligence. It is important for me to point out that an offence under the clause is not so serious as ever to justify imprisonment. That penalty is not available under the clause.
Amendment No. 53, providing that a serviceman who misapplies or wastes public or service money commits no offence if his actions were on the orders of a superior officer, is unnecessary, because if a serviceman acted on the basis of an order, he would not have the necessary intent, negligence or recklessness to commit an offence. On the question of the noble Lord, Lord Garden, of who this is intended to catch, we intend to be able to take action where someone has acted in a reckless or negligent way and, as a result, has led to the misuse or waste of public money.
4.30 pm
Lord Mayhew of Twysden: Has the Minister considered the use of the words, “or without lawful excuse”? That might meet the point raised by the noble Viscount, Lord Slim.
Lord Craig of Radley: The Minister seems attached to the use of the word “reckless” in the clause, rather than the word proposed by the noble Lord, Lord Garden—“knowingly”. In fact, I would prefer “reckless” to “knowingly”, but the Minister may take this away and consider inserting that word.
Lord Lyell of Markyate: I support the noble and gallant Lord and the noble Lord, Lord Garden, in asking the Minister to take this away. If I may respectfully say so, the fact that the Minister refers to intent, negligence and recklessness as either being or not being essential parts of the clause—albeit that they are not written into it—indicates that a good deal of careful thought needs to be given to its drafting before we go much further. Obviously, we cannot do all that in Committee, but I urge the Minister to say that he will take it away and think about it very carefully.
Lord Borrie: It seems to me that several noble Lords have made vital points. Whether or not one agrees with the sentiments of the noble Lord, Lord Garden, clarification is needed. In the Minister's first answer, which I presume was according to his brief, the words “recklessly or negligently” appeared several times. Surely it would be better if the clause itself contained those words. The noble Viscount, Lord Slim, made a point that was excellently responded to by the noble and learned Lord, Lord Mayhew, whereby
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Lord Drayson: This has been a very helpful debate which has raised a number of issues. I will go away and consider the matters, as has been suggested.
Lord Garden: I am most grateful to the Minister for undertaking to look at the matter again. The debate has been useful because it has elucidated what he is trying to achieve through Clause 25. From all the contributions by noble Lords, it does not seem that the current wording will achieve that. I have no particular attachment to my first suggestion and those that we have heard from numerous noble Lords could be incorporated to make the provision much clearer than it is. I look forward to seeing it in a different form when it returns on Report. Until then, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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