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I do not believe that it is open to us, by revisiting history in this way, to reverse decisions taken legally at the time, according to a law passed by the Parliament expressing the public will at the time. I do not believe that it is right for us to revisit the judgments made at the time. The argument was put forward that some of these cases were inadequately proceeded with and that the procedures were fallible, but fallibility is part of the human condition and it has to be part of the
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Above all, I cannot accept the case that, by doing this very human thing and pardoning those people without full knowledge of the facts, we do not in some way impugn the judgments of those who made the decisions according to law passed by Parliament under the conditions of the day. The Minister says that we will not do that, and noble Lords have said in several interventions that the amendment does not in any way draw those decisions into question. But it must—it can have no other effect. You cannot, simply by stating the case that it does not impugn the judgments of those who made these decisions at the time, say that therefore there is no impugnment of their judgments. You cannot, simply by putting a clause in law, give substance to that wispy claim.
The reality is that if we say that, according to the judgments of our time, these people are pardoned, then according to the judgments of our time the decisions made at the time were wrong. I do not believe that it is open to us to do that. Therefore, although I understand all the sentiments behind the amendment and although I wish to relieve the suffering of the relatives, this is an unwise move for us to make. It is one that could create precedents for the future and it cannot but have the effect of impugning the judgment of the people who made those very difficult decisions at the time. It cannot but have the effect of revisiting history, which is very dangerous, and putting the gloss and judgments of today on decisions made in conditions which we cannot in our time and at this distance make proper judgments about.
Lord Drayson: I am extremely grateful for the sensitivity shown by all Members of the Committee who have spoken and for the thought which has clearly gone into what they have said. This has been the most moving debate in which I have had the honour to participate in this House.
A number of specific questions have been raised and I shall cover them briefly. On the issue of compensation, I stress that this measure is aimed specifically to address those who suffered the ultimate penalty. These cases stand out for the stigma attached to them and thus to their families. The clause states clearly that this pardon creates no new right to compensation. This matter has never been about money, and it would not be right to consider it after this length of time.
The noble Lord, Lord Luke, asked whether this is a legal pardon. It is clearly not a traditional prerogative pardon. Unlike a prerogative pardon, this measure does not quash convictions or lift sentences. It is a statutory measure whose aim is to lift the stigma. We call it a pardon because, although it is not the same as a traditional prerogative pardon, it achieves the effect of lifting the stigma. By way of comparison, the sole legal consequence of a free pardon under the prerogative is to lift the penalty. It would not remove the conviction. Where campaigners have sought free pardons in the past the moral significance has far
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The noble Lord also asked about pardoning other offences. The offences listed in the new clause are those associated with the stresses of war. We do not believe that other offences such as murder, or offences associated with treachery, such as assisting the enemy, should be included. There are no plans to extend the pardon to other campaigns, as this pardon relates to the particular circumstances of the First World War.
The noble Lord, Lord Luke, referred to his role as an historian, and raised the point about us rewriting history. We are not aiming to rewrite history. We cannot change what happened in the past. We are aiming to address the memory of the men who were executed and the feelings of the surviving families by finally removing the stigma. I stress again that we are not calling into question the original trial processes or the judgments of individual officers.
I listened very carefully to the noble Lord, Lord Astor of Hever. It is very important for us to recognise the pressures and stresses that the men who had to take these very difficult decisions were under. He mentioned his grandfather who had to lead our army in that terrible war. I stress again that the amendment does not call into question the action of the officers who were responsible for discipline. Without their actions we would not have won that war.
The noble Lord, Lord Tebbit, asked why pardon them when some of them may have been guilty? He raises an important point, and I am grateful to him for describing the nature of what the amendment is aiming to achieve in the very difficult circumstances of the imperfect records that we have. It is very difficult to make distinctions between individual cases. As a result of the Blitz in 1940, we lost a lot of the records that would have helped to make these distinctions. We need to recognise the pragmatic reality of the data that we have. None the less, we hope that by lifting the stigma in all cases, we may do more justice—it is a balance—than by doing nothing at all.
The noble and gallant Lord, Lord Craig, raised his disappointment at our doing this as part of the Armed Forces Bill. I recognise his concern, but having reached the conclusion with regard to this policy and recognising the age of the families concerned—I stress that our primary objective relates to our thoughts for the families—we believed that it was more important to do something as quickly as we could. The Bill provides us with the opportunity to do that. As I said in my opening speech, it enables us to do it at a time that we feel is particularly poignant for the families concerned.
I have to say, too, as the Minister bringing the Bill to the House, it is appropriate that in a Bill that aims to provide for the Armed Forces a structure for the future, it is at the same time resolving what is probably the most difficult issue of the past. This is a wonderful opportunity to do that, which we should take.
I disagree strongly with the noble Lord, Lord Ashdown, although he expressed his concerns eloquently. I fundamentally believe, as he said, that if something is human and good, it must be wise to do it.
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The question of the future, which has been raised, is one that we have taken seriously. We have spoken to the commanders of our Armed Forces today. I spoke a few days ago to the current Chief of the General Staff about this matter, and he raised no concerns relating to current morale. I really do not believe that in passing this amendment we would cause any concerns to the current morale of our Armed Forces.
The suggestion that this is a political gesture is unfair. In the short time I have been in this House, I have been subject to some considerable grilling over Oral Questions but none as vehemently as the grilling I received over this matter just a few months ago. The strength of feeling made a deep impression on me, the feeling that the Government should look at this again and not be satisfied with there being no solution because we had been unable to find one. For me, politics is about doing the right thing in the most difficult and complex circumstances. Yes, the Government have looked at this again and found a solution which meets the need. We have acted in a spirit of compassion and humanity to do something good. I ask the Opposition to join the Government, in the spirit of that compassion, and support us in this amendment.
On Question, amendment agreed to.
[Amendments Nos. 178 to 180 had been withdrawn from the Marshalled List.]
[Amendment No. 181 not moved.]
Lord Garden moved Amendment No. 182:
(2) Service personnel under the age of 18 are not permitted to carry out guarding duty with live weapons.
(3) Service personnel under the age of 17 are to be accommodated in dedicated locations, and particular attention is to be given to their care.”
The noble Lord said: The amendment deals with how those under 18 should be handled by the military. I have raised this matter in various parts of the Bill. In this case, we are trying to ensure that the rules for how members of the Armed Forces under 18 are treated are clear and in the Bill. The amendment simply puts into effect the recommendations of Nicholas Blake QC.
The first ensures that there are no circumstances in which under-18 year-olds should be put into combat zones. The second ensures that, when they are outside combat zones, they do not find themselves in a combat situation with live weapons. The third is a direct recommendation for the special arrangements needed for under-17s.
I was disappointed by the Ministry of Defence’s response to the Blake report in these areas. It is full of “if circumstances permit”, or “it will take time to provide special facilities”. We are talking about child soldiers. The Blake report made it quite clear that Nicholas Blake saw no justification on recruiting and manning grounds. The only rationale that allowed him to support the involvement of under-18 year-olds was that the education and training the military gave
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We must be clear—given the international rules on the use of child soldiers and the fact that we do not approve of it in other nations—that the rules are there, that we will follow them and there will not be exceptions. I beg to move.
Lord Drayson: We fully acknowledge our duty of care to all service personnel and the importance of understanding and addressing the vulnerabilities and requirements of those under the age of 18.
Much work has already been done to improve safeguards for those who join the Armed Forces under 18, but we recognise that more can be done. Our responses to the House of Commons Defence Committee’s Duty of Care report and the Deepcut review reflect the importance which we attach to this issue.
We firmly believe that we should continue to recruit from age 16, but we have a clear commitment to take all feasible measures to ensure that those who have not reached the age of 18 do not take a direct part in hostilities.
The UK ratified the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict on 24 June 2003, and procedures are in place to ensure that under-18s are withdrawn from their units before deployment on operations, wherever possible. However, there may be some situations where, exceptionally, there will be a risk of direct involvement in hostilities by under-18s. For example, that could happen if a ship or a unit is already in theatre and it is not practical to remove under-18s without undermining operational effectiveness or if removing them would endanger the mission or the safety of other personnel.
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We would not want to rule out the possibility of suitably qualified personnel aged 17 or over undertaking armed patrolling duties. They would be judged by a competent officer to have the maturity and appropriate attitude to take personal responsibility for a firearm with live rounds and would be accompanied by another appropriately trained and qualified service person. Particularly for the Army, weapons handling and guard duty are important aspects of service life.
We fully recognise the special responsibilities that come with arming under-18s and take appropriate precautions relating to their safety and well-being. These include: tighter procedures to identify those at risk of self-harm and to deny them access to means; the need for weapons training and assessment before an individual is qualified to be armed; the responsibility of the chain of command to know each individual and to be confident that they are sufficiently mature and sensible to carry a weapon; and the requirement for each guard to be under the
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We have taken steps to reduce the need for trainees to conduct armed guarding duties as a routine requirement by increasing recruitment to the Military Provost Guard Service. In the longer term, it is expected that the recruitment of additional members to the Military Provost Guard Service will obviate the need for phase 2 trainees to undertake routine guard duty.
We fully appreciate that the training environment should take into account the specific requirements of recruits and trainees under the age of 18. In the Army, there are training facilities exclusively for recruits under the age of 17 at Harrogate and Bassingbourn, although some under-17s are also trained at other training establishments.
However, we do not believe that this is an appropriate approach to adopt across the Armed Forces, as accommodating under-17s separately from their colleagues would cause barriers that do not reflect the reality of the service environment. We have, however, concentrated on improving accommodation for all recruits at several training establishments, and there will be ongoing improvements to the training environment through the defence training review.
Commanding officers take their responsibilities towards their people extremely seriously, and they are well aware of the particular needs of younger recruits and trainees. Guidance for commanding officers specifically relating to working with under-18s is being reviewed in the light of the Deepcut review.
Other work has included the development of a “care of trainees” module, which was introduced to the training programme for instructors and other supervisory staff and has now been incorporated into the “train the trainer” course for instructors. In addition, a new policy on the provision of supervisory care in phase 1 and phase 2 training establishments has been introduced. This requires each unit to produce a supervisory care directive, which is based on the thorough assessment of the risk to trainees, taking into account the particular factors pertaining to the establishment and nature of the training undertaken.
In view of the measures already being introduced, which I have described, I am confident that the needs of service personnel under the age of 18 are being robustly addressed and that there is no requirement to introduce primary legislation to enforce the special provision for these young service personnel.
Lord Garden: I am grateful to the Minister for reading out the annexe to his letter to me of 9 October. It saves me from doing so because that is the very evidence I would use to suggest that the Ministry of Defence is not taking this problem seriously. I think that he may have misread one bit because my annexe refers to recruits under the age of 17 at Harrogate, whereas he actually said “under the age of 18”. But that is a small point.
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If operational actions are compromised because under-18 year-olds are there when suddenly a combat situation develops and you cannot get them off the ship or out of the theatre, that suggests that there has not been enough thought about putting them there in the first place. They have been put in a position where they are liable to be in a combat situation.
It is extraordinary that such servicemen must have live ammunition to guard because there are not enough members of the Military Provost Guard Service “but we are rather hoping that we can find funds to get some more”, and the thought that the Ministry of Defence is just going to ignore the recommendations of the Deepcut inquiry about under-17 year-olds is outrageous.
We need to talk about how to move forward urgently so that we can bring forward something that will not cause major difficulty with the Bill on Report. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Astor of Hever moved Amendment No. 183:
(1) On the enactment of this Act the Secretary of State shall cause to be prepared and publish a document to be known as the Manual of Military Law (“the Manual”).
(3) The Manual shall be prepared and published in such form and manner as best enables all information that it contains to be up-dated as appropriate.”
The noble Lord said: This is very much a probing amendment. It seeks to impose statutory requirements on the manual of military law. Such a manual already exists and is both long-established and in frequent use.
Commanders in the field are under obvious pressure and great strain even before taking into account their legal obligations. They need to take prompt and well informed decisions. It is therefore
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The Government argued in another place that this clause would remove “flexibility” from this document. However, it is essential that those in the heat of battle and under intense media scrutiny can refer to it with full confidence. It is right that we prescribe its contents to include all the various sources of law that affect our troops. It is equally important that there is provision for updating the manual when necessary.
The amendment allows all the “flexibility” needed in language, length and form of the document. But for the manual to serve its purpose it needs to be authoritative. Its value to commanders and their advisers is that they can rely on it completely.
It is essential that the accused and the accuser in any case will have had reference to the same authoritative document. Finally, it is important to remember that this manual is the document that the Armed Forces will use and refer to, not the Bill we are discussing in Committee. I beg to move.
Earl Attlee: I support my noble friend. I have two questions about the future manual of military law, manual of defence law or whatever it gets called. Will it be available for units electronically? Will it be published and available on the net?
Lord Garden: I generally support the amendment. We all know that there must be a manual of military law at some stage on the basis of the Bill. If the amendment were accepted, we might want to consider additions to subsection (2), such as reference to the redress procedure and the service complaints commissioner—the sorts of things we are adding to the Bill at the moment. But I certainly support the amendment of the noble Lord, Lord Astor.
Lord Thomas of Gresford: From a practical point of view, such a manual is very much needed. There is no readily available volume which is updated, as the noble Lord, Lord Astor, said and which is comprehensive. It would greatly assist lawyers as well as officers in the field to have the law comprehensively set out in a manual.
Lord Drayson: I can be very helpful and direct on this point. We are in complete agreement with noble Lords on the need for such a service manual. We have already started working on it. We recognise the fundamental importance of getting it right. On the point raised by the noble Earl, Lord Attlee, yes, it will be available on the net; it will be available electronically. I hope that, having made that absolutely clear, with that assurance, the noble Earl will feel able to withdraw his amendment.
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