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Clauses 278 to 280 agreed to.

Lord Drayson moved Amendment No. 158:

(a) sections 282 and 283 (maximum imprisonment, fine or compensation order that may be awarded by SCC); and (b) subsection (3).

On Question, amendment agreed to.

Clause 281 negatived.

Clauses 282 to 290 agreed to.

Lord Drayson moved Amendment No. 159:

(a) the reference in subsection (2) to the time of the award is to be read as to the time when the activation order is made; (b) the reference in subsection (2) to the day on which the award is made is to be read as to the day on which the activation order is made; (c) any other reference to “the award” in subsections (2) to (7) is to the award of service detention to which the activation order relates (with any modification of its term made by the activation order); (d) the reference in subsection (7) to an appeal is to an appeal against the activation order; and (e) in subsection (8)- (i) the reference to the award is to be read as to the activation order; and (ii) the reference to another punishment is to be read as to another order under section 192(3). (a) the reference in subsection (2) to the time of the award is to be read as to the time when the activation order is made; (b) any reference to “the initial sentence” is to the initial sentence as defined by this subsection;

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(c) any reference to “the award” in subsections (4) to (7) is to the award of service detention to which the activation order relates (with any modification of its term made by the activation order); (d) the reference in subsection (8) to the award mentioned in section 290(1)(a) is to be read as to the activation order; and (e) in subsection (9)- (i) the reference to the award is to be read as to the activation order; and (ii) the reference to another punishment is to be read as to another order under section 192(3).”

On Question, amendment agreed to.

Clause 291 agreed to.

Clause 292 [Rank or rate of WOs and NCOs while in custody pursuant to custodial sentence etc]:

[Amendment No. 160 not moved.]

Clause 292 agreed to.

Clause 293 [Effect of sentence of dismissal]:

[Amendment No. 161 not moved.]

Clause 293 agreed to.

Clause 294 [Service detention]:

[Amendment No. 162 not moved.]

Clause 294 agreed to.

Clauses 295 to 305 agreed to.

1.15 pm

Clause 306 [Sections 303 and 304: supplementary]:

Lord Garden moved Amendment No. 163:

The noble Lord said: This is an important clause. It refers to making regulations about obtaining samples from members of the armed services with a view to drug testing. Currently the Defence Council is able to make regulations; the powers are quite wide on the number of samples, the circumstances, the equipment that can be used and the qualifications and training of those who take them. We need to consider the individual rights of our service people and see how we can safeguard them.

My amendment seeks to remove these powers from the Defence Council and give them to the Secretary of State. A note which some Members of the Committee may have read on page 20 of the report of the Joint Committee on Human Rights raised a much more fundamental question about whether random breath testing was appropriate. I am not raising that question but it highlights the sensitivity of the issue, which is why we need to be careful that we end up with proper parliamentary accountability for changes to the system as they take place. I beg to move.

Lord Drayson: I am mindful of the concerns that there may be about random drug testing, but it is important to recognise that the services take drug abuse extremely seriously, for obvious reasons. To date, our programme of random drug testing has been operated under prerogative powers. Clause 303 brings random drug testing into statute and provides the power to demand from a person, subject to service law, a sample of urine to test for drugs.

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Clause 306 authorises the Defence Council to make regulations governing the manner in which samples can be obtained and analysed. The regulations may deal with a number of procedural matters concerning the taking of samples. The clause does not confer any powers in respect of the type of drugs for which tests can be made or the type of samples that may be taken. Those powers are conferred by Clause 305 and they are properly reserved to the Secretary of State.

Because the regulations made under Clause 306 are administrative and procedural, we believe they are properly within the remit of the Defence Council. I ask the noble Lord to withdraw his amendment, taking into account that the powers conferred under Clause 305 are reserved to the Secretary of State.

Earl Attlee: We have heard that the Defence Council hardly ever meets. What is the Defence Council?

Lord Drayson: The Defence Council is the senior management body of the Ministry of Defence. Its membership comprises the chiefs of staff, the Ministers and the senior civil servants in the Ministry of Defence.

Lord Garden: I am grateful to the Minister for his reply. He described what the Defence Council, on the rare occasions when it meets, will do under Clause 106 as being purely administrative. I suggest that, to the recipient of the drug test, the number of samples that one is required to provide may not seem totally administrative. The circumstances in which one has to give them, the equipment that is used, the qualifications and training of the people who take the samples are quite substantive issues. Given that the major area of the sampling is reserved for the Secretary of State, and that the Defence Council probably does not sit around the table that often to decide on the qualifications of those taking samples, I see no great strength in the view that these two areas of sampling should be separated. Although I shall not press the matter today, we could perhaps discuss it before Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 306 agreed to.

Clauses 307 to 319 agreed to.

Schedule 11 agreed to.

Clauses 320 to 331 agreed to.

Clause 332 [Redress of individual grievances: service complaints]:

Lord Craig of Radley moved Amendment No. 164:

The noble and gallant Lord said: This is a probing amendment. Noble Lords may remember that I said at Second Reading:

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The statutory redress system is a vital element of service disciplinary procedures. Is it right to give unconstrained authority to bar a redress application of any type? If it is trivial, it can be disposed of quickly. Why is this provision required?

Lord Drayson: This is a key element of the Bill. Before speaking to government amendments, I shall respond to Amendment No. 164. It is important to point out to the noble and gallant Lord that his amendment would prevent the Secretary of State excluding certain matters from the service complaints process. However, there are a number of situations in which a specialised procedure suited to deal with particular areas of complaint already exists.

We need to prevent the redress system becoming overburdened by cases for which an alternative procedure is better, but we recognise the sensitivity of the power, as the noble and gallant Lord highlighted, and have accepted the recommendation of the Delegated Powers and Regulatory Reform Committee of this House that the powers should be exercisable only subject to the affirmative resolution procedure. We are tabling an amendment to Clause 366 to provide for this.

Clause 332 already allows time limits to be laid down for bringing complaints. Government Amendment No. 164A allows regulations to be made setting out time limits for a matter to be referred to a higher level—a superior officer or the Defence Council. The aim is to reduce delays caused by the current absence of time limits on applying to take a complaint to the next level.

Government Amendments Nos. 169A, 169B, 186B and 201ZB introduce the service complaints commissioner. Noble Lords will remember that on 13 June the Government published their response to the report of the Deepcut review by Nicholas Blake QC and that a Statement on our intention to introduce a service complaints commissioner was made in another place. In the light of the tragic events at Deepcut, the Government recognised that there were three key needs. First, there should be an independent element in the investigation of and decision on complaints in cases of bullying and other misconduct. Secondly, there must be a way for people to ensure that allegations of such misconduct can be brought to the attention of the redress system and the victim given an opportunity to complain. Thirdly, there should be independent oversight of the performance of the system as a whole, with direct reports to Parliament and direct access to Ministers. The first need will be met by the inclusion in such cases of an independent member of the service complaints panel. The second need will be met by providing access to the system to outsiders to ensure that a complaint can be brought and that independent review is possible.

Government Amendments Nos. 169A, 169B and 186B provide the commissioner with the power to refer allegations of certain types of wrongdoing against members of the services to an officer, usually the commanding officer of the alleged victim. That officer will have a duty to inform the alleged victim about the

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allegation and find out whether he wants to make a complaint about the alleged wrong. The officer will also ensure that the alleged victim knows about how to make a service complaint and about any time limits under the legislation. Anyone may make allegations to the commissioner—a friend of the alleged victim, for example, or member of the same family.

Secondary legislation will define the types of allegation to which these provisions will apply, so that they cover those related to discrimination, bullying, harassment or other forms of misconduct. Secondary legislation will also provide for the commissioner to be informed about the progress and outcome of referred complaints. We are introducing an amendment to Clause 366 to provide for these regulations to be subject to affirmative procedure, and I shall refer to this again when we deal with the amendment.

To meet the third need, the commissioner will have a statutory role of reviewing the fairness and effectiveness of the service complaints system. He or she will have direct access to Ministers. The amendments will also require the commissioner to provide the Secretary of State with an annual report on the system to be laid before Parliament.

Amendments Nos. 170 and 189 also propose the introduction of a service complaints commissioner. Some of the noble Lords’ proposals coincide with those of the Government. However, Amendment No. 189—

Lord Garden: I have not spoken to Amendment No. 170.

Baroness Royall of Blaisdon: As I understand it, the Minister has a right to speak on the amendment because it is in the grouping.

Lord Drayson: Would the noble Lord prefer to go first on this amendment?

Lord Garden: The Minister is very gracious. I thought that it would save him a little time if I spoke to my Amendments Nos. 170 and 189, which speak of a military complaints commissioner. This is our way of laying a place mark at the Committee stage to ensure that this important aspect is not forgotten. The government amendments pick those matters up. There is a slight change of name, to the “service complaints commissioner”, but things have moved on very fast. While we greatly welcome the government amendment, which picks up the recommendations of the Blake report as well as previous recommendations from the 1990s, when some form of independent ombudsman was talked about, we will need both to read in Hansard the comments which the Minister has made today and to examine the detail of the proposals to see whether there are enough safeguards in the system to make sure that the service complaints commissioner has the right resources, that the person who fills the post is appropriate, and that the qualifications, terms of service and, in particular, the staffing arrangements are clear. We would not want to end up with someone who was a symbol but was unable to do the job. We will come back to this

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subject on Report. We would not want him to end up being harried like the Chief Inspector of Prisons, whose post we debated earlier this week. We strongly support Amendment No. 164, tabled by the noble and gallant Lord, Lord Craig, which is very good.

1.30 pm

Lord Drayson: I am grateful to the noble Lord for his assistance in making progress on the Bill today. I have taken on board the point he makes about focusing on the ability to deliver in these matters. This is an area, following the Deepcut review, that we shall be taking extremely seriously. I will take that message back and further reflect upon it.

Lord Craig of Radley: I shall speak to the amendments which the Minister has just been speaking about. As I reminded the House on Second Reading, and the Committee just now, I have expressed my reservations about the changes being introduced to the statutory redress system. The Explanatory Notes point out the importance of a right that “dates back to at least the 19th century”. The impact of the government amendments in this grouping is to introduce a so-called “independent” element into the redress arrangements. In part, as the Minister has mentioned, that has been driven by the aftermath of Deepcut, but it is another example of a political and parliamentary response to a particularly unfortunate episode. As with Dunblane and mad dogs, I doubt that the statutory response is always the best one, although I acknowledge that at times there is heavy pressure to be seen to be doing something, which is hard to resist.

When it comes to the Armed Forces, my concern is more specific. We have repeatedly reminded ourselves, on all sides of the Committee and in the other place, of the critical importance of the chain of command. I shall not dwell on this, other than to say that of all the many elements that go into a successful and responsible chain of command, the most important is that of trust. Commanders must have faith in their subordinates, and the latter must respond to that faith and themselves have trust in their commanders. When decisions affecting life and death may be involved, mutual trust is of the essence. I fear that a number of statutory decisions have been reached in the past 15 years or so that detract from that relationship of trust within the chain of command.

Each time we legislate in a way that implies or indicates that commanders and the command chain should not be involved in a disciplinary or complaints process, a secondary but no less important message is being transmitted. It may be no more than implicit, but it cannot be overlooked. The message is that commanders and the command chain cannot or may not be trusted to dispense discipline fairly. Is there not a fear—I have it—that the combination of these steps, and even more if they were to be enacted, such as those concerning courts martial composition and process now being advocated from the Liberal Democrat Benches, will serve further to undermine the trust that must exist up and down the chain of

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command? If commanders cannot be trusted to administer discipline, why should they still be trusted to exercise command? I am not suggesting that any one of the measures in itself could have that dramatic result, but it is their combination that concerns me, along with the continuing attempts to switch military disciplinary arrangements with those in use for civilians.

Some noble Lords may say that the legal system has to take priority. If that is to be our goal, there cannot be a realistic and viable separate disciplinary arrangement for the military. I believe, however, that we are agreed that there have to be separate arrangements, and the rationale for that should be given the casting vote, as it were, when deciding how best to provide for command and discipline in the services.

By nature, the services and servicemen are obedient to Parliament, so there is a reluctance in today’s forces to question the wisdom of Parliament. However, we are able to take a longer view of these matters. I argued during the passage of the human rights legislation in the House in 1998 that the Armed Forces should not be brought within the legislation, because they had, and must have, their own statutory arrangements. There are tensions and incompatibilities between what is best for the Armed Forces and for the rest of society. The proposals in these government amendments are unsound, because they serve to add to the subliminal message that the chain of command is untrustworthy.

Lord Drayson: I have listened carefully to what the noble and gallant Lord, Lord Craig, has said. It is not our intention at all to undermine the chain of command; indeed, quite the opposite. We recognise the absolute imperative of ensuring that the chain of command is not undermined. I have also taken on board his concern about the effects of the combination of measures, which have not been fully considered. I will read Hansard, reflect on these matters and, if I may, discuss this further with him.

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