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The noble Lord, Lord Thomas, raised numerous ECHR judgments. Apart from the case of Findlay, which he mentioned, the essentials of the court martial
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We have carried out a careful examination of ECHR compliance and I have described it in some detail in the letters that I have sent to noble Lords.
Lord Thomas of Gresford: Does the Minister accept that reporting on the conduct of junior officers at courts martial is now absolutely forbidden? Does he further accept that the Bill abolishes the reviewing authority? Those were two points in Morris where the European court said that the court-martial system was not compliant.
Lord Drayson: I shall take further advice on those points and will write to the noble Lord with an answer.
Lord Thomas of Gresford: Your Lordships now know that, from the 16th and 17th century, exceptions for the serious offences of treason, murder, manslaughter and rape have been made, and that courts martial for those offences committed in this country have never taken place. Have your Lordships heard this afternoon any justification for changing the system? I would respectfully suggest, with the greatest deference to the Minister, that absolutely no justification has been put forward. Why do we overturn 300 or 400 years of history without any point to it? This is a matter on which I do not seek your Lordships’ opinion today, but I shall certainly come back to it on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford moved AmendmentNo. 60:
“( ) No civilian subject to service discipline under the age of 18 years may be prosecuted before the Court Martial for an offence under this section.”
The noble Lord said: The amendment deals with juveniles subject to appearances before courts martial. As the Committee knows, we are extremely careful and cautious in dealing with juvenile offenders, in how the case is handled in court, how it is prosecuted and decided, and what forms of punishment or treatment are involved as a result of appearance in a juvenile court. However, this Bill permits juveniles who are civilians to be brought before a court martial, when they have not themselves joined the services but happen to be under the jurisdiction of that court because, for example, their parents are service people, or for some other reason—they are serving abroad with the British forces. I respectfully say that that is contrary to our whole approach to juvenile justice.
I add, for your Lordships’ further consideration, that unlike the juvenile courts of this country, the panel that hears these cases by way of court martial has nil experience of the various ways of dealing with juveniles. Although they can be advised by the judge advocate sitting with them, they do not have to take
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I had the unfortunate experience of representing a young man of 17 who was charged with murder. He was dealt with by court martial in Germany, notwithstanding that he awaited his trial in prison in this country and was taken back to Germany, where his father had left the services, to be tried under a court martial. The matter went to the Appellate Committee of this House, which upheld the conviction, but it has lived with me—we should not be dealing with youngsters in that way.
That is the motivation behind Amendment No. 60. Grouped with it is the objection to the whole concept of the court martial dealing with civilian offences. This broad subject has been addressed on many occasions, not least before the Appellate Committee. We have given and continue to give courts martial the right to deal with civilian offences; that is to say, they are dealing not with disciplinary matters but with people who have committed ordinary crimes on the statute book. I know that I will not persuade your Lordships that this system, which has operated for a long time, should be changed, but what I am saying is perhaps one step further along the road to confining military courts martial to what they should be confined to: disciplining the service men under their control. They should not deal with civilians, particularly not with youthful civilians and civil offences.
I put my focus on Amendment No. 60, because the Bill does not give proper consideration to how juveniles subject to service discipline should be dealt with. The Bill sets up service civilian courts, and the rules proposed and promoted for those courts should encompass the sort of things that we have in a juvenile court in this country. There must be enough people of sufficient experience to sit on the equivalent of a juvenile panel. I would like to see under-18s dealt with by that service civil court sitting as the equivalent of a juvenile panel in this country. That panel should have experience of the way in which we deal with juveniles. I beg to move.
Lord Borrie: Since the 18th century our law has given courts martial jurisdiction over civilian dependants and employees but, until the Army Act 1955, this applied only if our troops were on active service. Military law was extended in 1955 to cover civilians in peace time accompanying soldiers in other countries, to bring it into line with what was supposed to be the position in the United States. But in 1960 the United States Supreme Court ruled that it was unconstitutional for United States civilian employees and dependants to be subject to courts martial in peace time. One of the reasons given by the Supreme Court in 1960 was that court martial procedure does not allow for trial by jury.
I have immediate sympathy for AmendmentNo. 60, proposed by the noble Lord, Lord Thomas, which concerns under-18s being exempt from the jurisdiction of a court martial. He has referred to the case in which he appeared as defence counsel. I am
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It so happens that in 1966, in another case, the wife of a British soldier stationed in Germany was tried by court martial for the murder of her husband and sentenced to life imprisonment—later it was reduced twice to five years’ imprisonment. The defendant was just over 18 years old. The concerns expressed by the noble and learned Lord, Lord Slynn, in R v Martin were as relevant in the case of Mrs Clark as they were in that of the under 18-year-old, particularly the absence of a trial by jury and allowing a simple majority verdict, which is all that is necessary to establish guilt in a court martial.
When the United States condemned on constitutional grounds the court martial trial of civilians in peace time, Justice Black in Washington said that when a Government reach out to punish a citizen abroad,
- “the shield which the Bill of Rights and other parts of the constitution provide to protect his life and liberty should not be stripped away because he happens to be in another land. This is not a novel concept. To the contrary it is as old as government. It was recognised long before Paul invoked the right as a Roman citizen to be tried in strict accordance with Roman law”.
5.15 pm
It is evident that I support the amendment proposed by the noble Lord, Lord Thomas, but I would really like it to go further. Like the noble Lord, I question the clauses that immediately follow in this debate. I question the jurisdiction of courts martial over all civilians, whether under or over 18, except when accompanying troops in wartime on active service. Of course I accept that when troops and accompanying civilians are based in peacetime in another country they are prima facie subject to the jurisdiction of the local courts of the country in which they are serving or living. The foreign country may be willing, under an agreement with this country, to give up some of its sovereign rights and, as in the NATO status of forces agreement, grant some measure of jurisdiction to the military authorities of the sending state. In principle, the foreign country should equally be willing to grant jurisdiction to the sending state’s civil authorities, sitting as appropriate in the state where witnesses may be more easily and readily available. In such a situation, a civilian court could be adjusted in its composition on the lines that the noble Lord has suggested, so that if the defendant is under 18 it would have an appropriate panel, as with juvenile courts in this country. I support the noble Lord.
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Lord Mayhew of Twysden: The case made by the noble Lord, Lord Thomas of Gresford, as reinforced just now by the noble Lord, Lord Borrie, is enormously powerful. I look at this primarily from the point of view of sharing what the Minister has just said about the importance of providing and maintaining a comprehensive military justice system. That is important, but it is equally important not to overload that system or unnecessarily to present it with difficulties that can be avoided.
Parliament has recognised the need for special safeguards when conducting trials of juveniles. It would be unnecessarily difficult for a court martial to apply those safeguards. The matter could be dealt with much more simply if the amendment, or words to its effect, were to be carried in due course. I recognise that the noble Lord, Lord Borrie, said that the precedents for all this go back to the 18th century, but there were not too many safeguards in our domestic law in the18th century for the trial of children under the age of 18. I very much look forward to the Minister’s reply, which I hope will be favourable.
Lord Lyell of Markyate: I support the noble Lords who have spoken on this matter. I hope that the Minister will at least say that he will think very carefully and reflect on what has been said both about this matter and about the previous amendment. I hope that I can say that without being out of order. We are dealing with matters that are deeper than perhaps at first we realised. It may be that we should be debating this whole clause and that it needs more careful thought than it perhaps has yet had an opportunity of receiving. I say this with some modesty, because I am afraid that I was not able to be here when the matter was debated in July, as I was in hospital. I did not receive the Minister’s letter, but I am trying hard to catch up. There are very serious issues here.
Earl Attlee: In the 1950s, it may have been impractical to send all the players to a Crown Court trial in the United Kingdom from, say, Hong Kong, but in this day and age it is relatively easy to go to a different country. I strongly support AmendmentNo. 60, but I am not so happy about the amendments to Clause 42 and onwards.
Lord Campbell of Alloway: The Minister was referring to a military law separate and distinct from the civil system. That was spoken to by noble and gallant Lords at Second Reading and lies, as the noble Lord has said, behind the basis of much of this Bill. I shall say no more now, because I shall refer to the matter when we consider Amendment No. 61, but I do not imagine that at Second Reading noble and gallant Lords had for one moment the position of juveniles in their minds.
Lord Kingsland: Regarding Amendment No. 60, I need do no more than respectfully adopt the interventions made by my noble and learned friends Lord Mayhew of Twysden and Lord Lyell of Markyate.
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I was struck by the uncharacteristically sheepish way—I use an appropriate Welsh image—in which the noble Lord, Lord Thomas of Gresford, spoke in opposing Clauses 42 to 49 standing part of the Bill. I am not sure why he did that. Was it because we had already heard from him at some length on the previous amendment and modesty overcame him? Or was it because he was not sure of his ground? I would like to think that it was the latter, because expunging those clauses from the Bill would tear the heart out of our traditional approach to the relationship between civilian and military law. If Clauses 42 to 49 were removed, you would be left with a statutory disciplinary system for the forces. That would fly in the face of the fundamental constitutional principle that has always lain at the heart of our approach to the Armed Forces—that a soldier, sailor or airman in the services is a civilian who is undertaking such tasks. He is a citizen in arms, if you like. If we stray from that, we unravel the approach that we have traditionally taken to these matters.
I wonder how this amendment might apply. Perhaps a way of testing the attempt to remove Clauses 42 to 49 is to look at what would happen when our servicemen are abroad. That was touched on by the noble Lord, Lord Borrie. What happens in relation to the commission of criminal offences when servicemen are abroad? Currently, the civilian courts have extra-territorial jurisdiction only for a few serious offences. If you remove criminal conduct from the scope of the military justice system, there would be no means of prosecuting a soldier for an offence committed abroad that fell outside that limited extra-territorial jurisdiction. The only alternative, as the noble Lord, Lord Borrie, stated, would be to subject the soldier to a foreign local jurisdiction. In some cases, that would be impossible; in other cases, it would be highly undesirable, especially now, given the jurisdiction of the International Criminal Court. With great respect to the noble Lord, Lord Thomas, I suggest that removing the clauses would be wholly counterproductive. On this matter, the Government can rely on support from the Opposition.
Lord Drayson: I have listened carefully to the points made on the Floor of this House and my comments on Amendments Nos. 62 and 63 will be brief, in the interests of making progress. I was taken by a number of the points made by the noble Lord, Lord Thomas, in respect of juveniles, and those points were emphasised by the noble Lord, Lord Borrie. I shall go away and reflect on these matters, in so far as they apply to juveniles, and come back to the noble Lord.
I believe that I have to be more robust on Amendment No. 63 because, as we have heard, it goes to the heart of the Bill. I have already spoken to the two key principles that we believe underpin what we are trying to achieve in this very important Bill for our Armed Forces in having a separate and comprehensive system of military justice. As I understand it, this amendment seeks to permit service personnel and civilians who are subject to service discipline to elect trial before civilian courts in the United Kingdom where those civilian courts have extra-territorial jurisdiction. I believe that
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I should also like to make a point relating to personnel, whether they are civilians acting in arms, as the noble Lord opposite has just said, or whether they are taking part in operational or non-operational activities. In our modern environment, the types of operations that our forces undergo change very rapidly in a short space of time and can therefore be hard to define as active service in a warlike situation. We are seeing so-called “three-block” operations, where the situation can change extremely rapidly. Therefore, we do not believe that it would be helpful to make this distinction, as it would be impractical in defining active service or operational or non-operational theatre. I would have real difficulty with such a distinction.
Lord Thomas of Gresford: I am most grateful to noble Lords who have spoken in support of Amendment No. 60—in particular, the noble Lord, Lord Borrie, the noble and learned Lords, Lord Lyell and Lord Mayhew, and the noble Earl, Lord Attlee. I also include the noble Lord, Lord Kingsland. If I was perhaps sheepish on my side, he was not exactly bullish about supporting Amendment No. 60, but I think that he does. Indeed, he says that he completely supports it. I am grateful that the Minister is going to think about the problem in relation to civilian juveniles who have not signed up to the Army, the Navy or whatever but find themselves subject to courts martial.
As to the objection to dealing with civil offences, the noble Lord, Lord Kingsland, is right. In my view, until the court martial system is completely consonant with the Crown Court—an aim announced by the Judge Advocate General, Judge Blackett—it is wrong that a serviceman should face a different tribunal for an offence committed in this country. I refer not to the more serious offences but to the ordinary, run-of-the-mill ones. It is wrong that he should face a completely different tribunal with procedures that are not as acceptable as those faced by the ordinary member of the public, who will be before the magistrates’ court or the Crown Court for the same offence committed in this country.
The noble Lord, Lord Kingsland, was right to point out the difficulties that apply to offences committed abroad. I agree with him that it is necessary to have a service disciplinary system that deals with criminal acts abroad. But it is a different matter when one asks whether it is right in this country to have a competing jurisdiction for a person just because he has signed up to the services and whether it is right that he should be at greater peril if he is charged with offences under one system than he would be under the other.
I am grateful for the support in relation to juveniles, and I shall pursue that matter. My opposition to the wider picture is, as I said, part of a long-running campaign, which I cannot pursue further at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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5.30 pm
Lord Kingsland moved Amendment No. 61:
(1) Where Her Majesty's forces are to be engaged in an operation the Secretary of State shall draw up a document to be known as the Rules of Engagement (“the Rules”).
(2) The Secretary of State shall cause appropriate extracts from the Rules dealing with particular aspects of the Rules to be made and set out on cards (“Cards”).
(3) When approved by the Defence Council the Rules and any Cards shall have the force of law under this Act.
(4) The Rules and the Cards may be revised by the Defence Council at any time in the course of the operation.
(5) A copy of the Rules shall be distributed to the commanding officer of every unit engaged in the operation and to the service prosecuting authorities.
(6) Cards shall be distributed as appropriate by commanding officers to all members of Her Majesty's forces engaged in the operation and to any attached civilians.
(7) It shall be an absolute defence to any charge alleging misconduct to show that the conduct concerned fell within the Rules.
(8) The Secretary of State may direct that the Rules be classified to the degree that he considers necessary for the conduct of operations and shall be exempt from disclosure accordingly.
(9) Cards shall not be classified and copies of them shall be placed in the libraries of each House of Parliament.
The noble Lord said: What matters in this amendment is not the detail but the principle that lies behind it. In that sense it is a probing amendment. But it is an amendment of great importance, which was heralded during the Second Reading speeches from these Benches.
The principle is that the rules of engagement should become an absolute statutory defence for a soldier on operations. It must follow, therefore, that the rules of engagement define the criminal law within which the soldier operates. We believe that the rules of engagement should take statutory form. Soldiers have to know where they stand when they are on operations. They are told that if they comply with the rules of engagement they are within the law. Why are the Government prepared to say that informally but not admit it publicly in the Bill? That is the question that the Minister has to answer. He will have some difficulty in doing that if his answer is not co-ordinate with the view that we take.
Article 7 of the Human Rights Act requires that the criminal law should be composed of rules that have predictable outcomes. It requires that a subject—whether a soldier or a civilian—before undertaking a certain activity should know whether that activity falls within or outside the criminal law. Precisely the same principle should apply to a soldier on operations.
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