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On Amendments Nos. 65 to 68, the Bill allows the commanding officer to deal summarily with junior officers. This is a new development. As the Bill is drafted, the commanding officer—a lieutenant-colonel, say—can discipline a major, who could be his second-in-command. Many commanding officers I have talked
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Finally, Amendment No. 68 makes it clear that volunteer reservists are subject to military law whenever they are on military premises. At present, they are no longer subject to military law after the end of the dismissal parade, which leaves a bit of a gap in service law. I hope the Minister can reassure me that the Bill deals with that. I beg to move.
Lord Drayson: I will deal with Amendment No. 64 first and then go on to Amendments Nos. 65 to 68.
Amendment No. 64 seeks to provide that every person shall readily be able to determine who his commanding officer is. I understand that, through this amendment and others he has tabled about the terms “officer” and “superior officer”, the noble Earl seeks clarity for soldiers, sailors and airmen. I am pleased that we have a common aim in that regard.
As the noble Earl has said, I have written to him on these issues. I hope that he is reassured that through the regulations we will be able to achieve the clarity he seeks. I am willing to meet with him to discuss that further. I recognise that in the Bill overall, there is a significant reliance on trust in certain aspects. The regulations that will be brought forward will meet some of the issues which noble Lords have raised in a number of briefings. I will be happy to meet the noble Earl to go through that further.
The combined effect of Amendments Nos. 65 to 67 would be to reduce the highest rank of officers that may be dealt with summarily from commander and equivalents to lieutenant and equivalents, to remove the power to deal summarily with warrant officers, and to require the commanding officer to be at least two ranks above the accused before he may hear a charge summarily. Perhaps I may explain the position under the current service discipline Acts.
For the Army and the RAF, warrant officers and officers up to the rank of lieutenant-colonel or wing commander are dealt with summarily by an appropriate superior authority—that is, a senior officer of one-star or two-star rank who has powers of punishment over those individuals. In the Royal Navy, warrant officers and officers up to the rank of commander are dealt with by the commanding officer if he is at least two ranks above the rank of the accused and otherwise by the appropriate superior authority.
Under the Bill, we have removed the concept of an appropriate superior authority and provide instead for these individuals to be dealt with by the commanding officer. But it will, as now, be possible to appoint a commanding officer to an individual for a specific purpose in regulations. So the Bill retains the current power to hear charges summarily against all
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Finally, Amendment No. 68 would make reservists subject to service law when on a service base, ship or aircraft. Clauses 360 and 361 set out the circumstances in which reservists are subject to service law. These provide that they will be subject to service law when they are carrying out any activities as reservists.
To extend this in the way in which the noble Earl’s amendment seeks would be to make it unnecessarily wide. The services have no desire to extend the times when reservists are subject to service law in this way, and believe that it is important to link the times when a reservist is subject to service law to the activities in which he is engaged, rather than where he is located.
Additionally, the Bill already provides that a person is “subject to service discipline” while he is in one of Her Majesty’s ships afloat or one of Her Majesty’s aircraft in flight. This applies to a reservist as well as anyone else who is not subject to service law. On the basis of this explanation, I ask the noble Earl to withdraw his amendments to this clause.
Earl Attlee: I am grateful for the Minister’s explanation. I have some queries, but I shall follow them up by other means. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 52 [Charges capable of being heard summarily]:
[Amendments Nos. 65 to 68 not moved.]
Clause 58 [Time limit for charging civilian formerly subject to service discipline]:
Lord Drayson moved Amendment No. 69:
(a) who ceases to be a civilian subject to service discipline by reason only of- (i) leaving an area designated for the purposes of Schedule 15; (ii) entering the British Islands; or (iii) leaving an area which a designation under paragraph 7 of Schedule 15 specifies as an area that he must be in for the designation to apply to him; and (b) who is residing or staying in a qualifying place at the time he does so. (a) to reside or stay in a qualifying place, and (b) to be a person who is not a civilian subject to service discipline but who would be such a civilian if he were in a qualifying place,11 Oct 2006 : Column 305
On Question, amendment agreed to.
Clause 58, as amended, agreed to.
Lord Astor of Hever moved Amendment No. 70:
(1) Where an investigation has been opened by the service police under the authority of the Director of Service Prosecutions into an alleged Schedule 2 offence, the Director shall, except as otherwise provided in this section, bring the case to court or withdraw it within one year of the opening of that investigation.
(2) Where the Director has reasonable grounds for seeking an extension of time for the investigation and preparation of a case, he may, within one year of the opening of that investigation, apply to the court for an extension of time for that purpose.
(3) On an application by the Director for an extension of time under subsection (2), the court may hear any related application on behalf of the defendant and shall grant an extension of not more than a further twelve months on such conditions as it considers appropriate.
(4) In the event that the case is not brought to court before the conclusion of the period allowed (including any extension),the defendant may apply to the court to have the prosecution by the Director permanently stayed and for the case to be remitted to the commanding officer concerned for a summary hearing.
(5) On the hearing of an application by the defendant under subsection (4), the court shall order accordingly.
(6) For the purposes of this section a case shall be considered as “brought to court” on the day upon which the prosecution opens its case.”
The noble Lord said: The Minister has very helpfully written to me to point out the drawbacks of our amendment and we accept his points. I am therefore happy to withdraw the amendment if we receive an undertaking from the Minister at the Dispatch Box that the Government recognise the importance of avoiding unnecessary delay and are working hard on streamlining the process.
The length of time that certain recent cases have taken to be brought to court is, I believe I can fairly say, universally abhorrent to all Members of your Lordships' House, as it is to the Armed Forces. I beg to move.
Earl Attlee: I shall not speak to AmendmentNo. 71.
Lord Garden: As far as the principle of the amendment of the noble Lord, Lord Astor of Hever, goes, anything which compresses the time is very welcome, but I have concerns about the practicality,
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Lord Drayson: I am grateful to the noble Lord for his response to my letter, and I am happy to assure him categorically of the absolute need to avoid unnecessary delay. We need to streamline our process, but we need also to ensure that it is done in a way which is consistent with justice.
Lord Astor of Hever: In the light of the Minister’s undertaking, I am very happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 61 [Sections 55 to 60: exceptions and interpretation]:
Clause 67 [Power of arrest for service offence]:
6.45 pm
Clause 76 [Stop and search by persons other than service policemen]:
The Deputy Chairman of Committees (Viscount Simon): There is an error in the Marshalled List. Amendment No. 73 should come after Amendment No. 75.
[Amendments Nos. 74 and 75 not moved.]
Clause 91 [Entry for purpose of arrest etc by other persons]:
Lord Garden moved Amendment No. 76:
Page 43, line 7, leave out “An officer” and insert “A commanding officer or an officer designated under subsection (7)”
The noble Lord said: In moving the amendment, I shall speak also to my other amendments in this grouping. They are an odd ragbag and are probably better dealt with together.
Amendment No. 76 is designed to be helpful and to clarify what Clause 91 is about. One has to get to the very last section to discover that it is about commanding officers and how they are delegated. My amendment would clarify that from the outset and make the clause easier to read.
I have tabled a number of amendments toClause 100: Amendments Nos. 78 and 82 to 86. They have been grouped together because they all have something to do with time. Amendment No. 78 would put some limit on how long a review can be postponed if a commanding officer is not readily available. I
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Amendment No. 82 also relates to time periods in the review of custody by the commanding officer in Clause 100. The word “approximate” is used for the various time limits. I am not a lawyer, but “approximate” seems to be a rather strange word to use. Why can we not define maxima, rather than just leave it up to our learned colleagues to debate how approximate “approximate” is?
Amendments Nos. 83 to 86 are rather more serious. They would set a unified cut-off age rather than have some provisions that apply for age 17 and others for those aged under 18. Following the Deepcut inquiry, it is clear that we need to take special measures for under-18 year-olds when the Armed Forces are dealing with them. Therefore, wherever the age 17 appears in the Bill, I have raised it to age 18. I do not doubt that the Minister will tell us that the legislation is merely in line with civil law, but how under-18s are used in the service environment is a different matter. I beg to move.
Earl Attlee: I shall not speak to AmendmentNo. 77.
Lord Drayson: Amendment No. 76 is unnecessary. Clause 91 allows a commanding officer to authorise any member of the Armed Forces who is not a service policeman to exercise similar powers to enter and search premises to make an arrest as those afforded to the service police under Clause 90. This reflects the fact that service police are not always readily available.
I will deal now with Amendments Nos. 78 and 82, which relate to the regime for custody. These provisions are very little changed from the current regime under the SDAs, which were introduced in the Armed Forces Discipline Act 2000, which themselves were based upon provisions in the Bail Act 1976 and the Police and Criminal Evidence Act 1984. With regard to Amendment No. 82, for example, the provision regarding timings being approximate in the Bill is identical to the PACE provision and allows the arrangements to work in practice.
Amendment No. 78 could have the effect of extending the period which the commanding officer alone can authorise an accused to be kept in custody without charge, without making an application to a judge advocate. In the interests of the accused, this should not be a power that applies in all cases. We have, however, already provided, in Clause 102, for a commanding officer to be able to do this in extremis where it is not practicable to get before a judge advocate within the 48-hour period, but this is subject to tight control. This is already the position under the current service discipline Acts and we believe that it works well in practice.
I hope that with these reassurances the noble Lord feels able not to press his amendments.
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Amendments Nos. 83, 85 and 86 together relate to age. They amendments would raise the relevant age limit in each clause from 17 to 18. Clause 106 sets out the conditions which a judge advocate must have regard to when he is considering whether to authorise post-charge custody. One condition is that the judge advocate is satisfied that the accused should be kept in service custody for his own protection or, if he is aged under 17, for his own welfare or in his own interests.
Clause 107 sets out what other factors a judge advocate should consider when releasing an accused person from custody. Subsection (3) permits the judge advocate to require the accused to comply with certain requirements. These are generally the same as those which apply in civilian proceedings. Among them, at Subsection 3(d) is that a person who is under 17 may be subjected to certain requirements by a judge advocate on or after release if the judge advocate considers it necessary for the welfare of the accused or in his interests.
Clause 110 deals with the situations, post-charge, or post-conviction, when a commanding officer may be permitted to order the arrest of a person who is not in service custody. Subsection (3) permits a commanding officer to order the taking of a person into service custody when certain conditions exist. These conditions are generally the same as those which apply in relation to civilian proceedings, as the noble Lord has guessed. One condition is that a person who is under 17 may be taken into custody for his own welfare or in his own interests.
We do not think that in any of these three clauses there is a case for the services to have a higher age limit to that which applies in civilian proceedings. The effect in each case would be to make an accused more susceptible to custody than would be the case if they were to appear before a civilian court, notwithstanding the wide range of appropriate steps short of custody which are also available to the chain of command. For these reasons I ask noble Lords not to press their amendments.
I will finally deal with the second aspect of these amendments, which is in relation to Clause 106 only—Amendment No. 84. This clause sets out the conditions a judge advocate must consider when determining whether to authorise keeping an accused in custody under Clause 105. Conditions A to D are generally the same as those which apply in relation to civilian proceedings. Among them, condition B is that a person who is under 17 may be kept in service custody for his own welfare or in his own interests.
The purpose of Amendment No. 84 appears to be clarification. Although noble Lords are of course right to point out that condition D applies only in the circumstances set out in Clause 109, that is already the effect of Clauses 106 to 109 when read together. The amendment would not change the substantive position and the clause as drafted is, I believe, sufficiently clear. I would therefore ask that the amendment be withdrawn.
Lord Garden: I am grateful to the Minister for going through all those amendments. I apologise for not having spoken to Amendment No. 84, but he
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