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(c) a puisne judge of the High Court in England and Wales who (following a request by the Judge Advocate General) is nominated by or on behalf of the Lord Chief Justice of England and Wales to sit as a judge advocate.”

On Question, amendment agreed to.

Clause 357 agreed to.

Clause 358 [Director of Service Prosecutions]:

Baroness Crawley moved Amendment No. 184B:

On Question, amendment agreed to.

Lord Inge moved Amendment No. 185:

“(e) has appropriate military qualifications; or (f) has been approved by the Chiefs of Staff.

The noble and gallant Lord said: The importance of the chain of command has been mentioned on more than one occasion during discussion on this Bill. That chain of command goes from the front line right to the chiefs of staff in the Ministry of Defence. A fair and trusted military justice system is a significant part of a trusted chain of command. The noble and gallant Lord, Lord Craig, spoke earlier about the duty of care and the importance of trust in the chain of command. The Director of Service Prosecutions will clearly have a key role to play in maintaining the trust that is developed in the Bill. My amendment therefore suggests that he should both have appropriate military qualifications—I am aware that the noble Lords, Lord Garden and Lord Thomas of Gresford, have suggested amendments that also refer to this—and be approved by the chiefs of staff. I had failed to notice that the amendment as drafted states “or”; I would like it to state “and” if it is possible. I beg to move.

Lord Garden: My Amendment No. 186 would quantify the military experience required. It is in line with other parts of the Bill where we have looked for military experience. We generally support Amendment No. 185, although, if it were earlier, I might have wanted to debate what,

means in terms of political control of the military within the country, but it is probably too late to go into that at this stage.

Lord Boyce: The two previous speakers have spoken eloquently to the amendments. In our debates so far on the Bill, no one has disputed the need for a tri-services discipline Act. I am certain that our servicemen will draw comfort from the fact that they are seen to be different by virtue of there being a need for the Act, but I am certain also that their comfort will be eroded if a key part in its implementation is not played by a person with uniformed experience. That is important for their confidence in the system.

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Therefore, I support the proposal that the person concerned should have a uniformed background. I am very happy with the amendment of the noble Lord, Lord Garden.

Lord Astor of Hever: My name also has been added to the first of the two amendments and I strongly support it. It should be considered absolutely essential that the person who is taking prosecutorial decisions about our service men and women not only understands and appreciates the context in which they operate, but has had some first-hand experience of what service life and conditions entail. Our service men and women must have confidence that the person taking the ultimate decision about whether a case should be brought against them has a first-hand understanding of what serving in the Armed Forces entails. Without it, every time a serious prosecution is brought against one of them, there will be the feeling in the military, rightly or wrongly, that yet again the civilian system is attacking the military. That will only exacerbate the unspoken feeling among our Armed Forces that the Government do not appreciate the maintenance of trust that underpins everything that the military does.

One factor that leads soldiers to trust officers in the chain of command is the belief by a subordinate that his superior officer understands, and has experienced to a degree, the situation in which the soldier finds himself. If we are asking an individual to subject himself or herself to service law and discipline, he or she should be able to have trust in the person who ultimately upholds it. The Select Committee in another place concurred when it stated, at paragraph 73 of its report:

5 pm

Lord Ramsbotham: I support the amendment in the name of my noble and gallant friend Lord Inge. In preparing for our debates on this Bill, I have spoken with the Adjutant-General of the Army, the person responsible for discipline, a post that I once held. I asked him which aspects of the Bill the Army as a whole felt most strongly about. There were two. One has come up many times: the position of the commanding officer. The second was that the prosecuting officer must be someone with service experience. I merely pass that on, because it must be relevant; the views of the Armed Forces must be taken into account when we are discussing this issue.

Earl Attlee: I urge the Minister to accept this amendment, or something similar.

Lord Drayson: I recognise that this is an important area of the Bill. It is a subject on which we have had many discussions over the past months during the Bill’s passage, in this House and at the briefings at the Ministry of Defence. We recognise the strong feelings

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about it not only in this House but also, as the noble Lord has just emphasised, in the Armed Forces, particularly the Army.

I shall cover Amendment No. 185 and the points about qualifications first, because it is important for me to stress upfront that the issue here is how we can best meet these concerns. We do not believe that doing so in the Bill would be the most pragmatically effective way, as I shall explain.

Noble Lords will understand that the minimum qualifications required to hold the post of director are prescribed in the Bill. These are minimum legal qualifications, which do not amount to a personal specification for recruiting purposes. I also remind noble Lords that my right honourable friend the then Secretary of State said in the other place that it is important that the Director of Service Prosecutions should have relevant service experience. Moreover, under the Bill the prosecuting officers will all be serving officers.

It is our intention that one of the essential requirements for the director should be service experience. However, we believe that we could find ourselves in difficulties if we sought to define in the Bill the kind of service experience that is required. As the noble Lord, Lord Garden, mentioned, that is very difficult to do. Are we talking about someone who held a short service commission maybe 10 years ago? That counts as service experience. Or are we talking about someone who has been in the front line of operations? Not many lawyers are in the front line of operations, although in recent years they have increasingly served in operational theatres. However, that is not the case for our more senior service lawyers.

Rather than finding ourselves in difficulty by putting that requirement in the Bill, we propose to do it through the recruitment process. I recognise that, in their amendment, noble and gallant Lords are looking to put that requirement in the Bill, so we will need to convince them that the recruitment process will be sufficiently robust to meet their concerns. We envisage that the selection panel will be chaired by a Civil Service commissioner and that the vice-chief of the defence staff, on behalf of the chiefs, will be a member, together with a senior member of the judiciary.

Amendment No. 186, which seeks to quantify the type of service experience in terms of years, would mean that we would miss the point regarding the nature and location of that experience. We need to make a qualitative assessment of the type of experience that a candidate for the post has had. Ensuring that the selection panel has on it someone who is in a position to make that judgment is the most effective way of deciding who is to be appointed to the post.

The qualifications of candidates will be a much better way of narrowing down the sort of experience that we want the director to have. Moreover, they are not confined to military qualifications. This will be a demanding post and we will wish to appoint a director who in all aspects is an outstanding individual. This means that he will need, in addition to service experience, a proven track record in

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relevant legal skills, leadership and what we might term “management skills”.

I have referred to service experience. By this I mean an understanding of service life and the operations of each of the services and of the needs and the working of a service system of justice and discipline. This will be essential if the director is to develop effective relationships and enjoy the confidence of the Armed Forces while maintaining prosecutorial independence.

If the requirement is drawn too tightly in the Bill or in regulations, we could find ourselves excluding the person whom we are really looking for—the best person for the job. I feel sure that there are people of the right calibre currently serving who could do this job, but it is vital that a director is appointed on merit in a competitive field, which could include civilians who have relevant experience of the services. That is the way to ensure that we get the right person for the job, rather than recruiting from a narrow field and perpetually running the risk of criticism that there were better external candidates.

The proposed recruitment process will draw on the one used successfully to appoint the Director of Public Prosecutions. There will be a small, independently chaired panel which will make a recommendation to Her Majesty. As I have said, we intend that a very senior serving officer representing the chiefs of staff will be a member of the panel. I hope that this will give precisely the assurances that noble Lords are seeking through their amendments.

The recruitment process, job specification and terms and conditions against which the director is appointed will also be agreed with the services. It is inconceivable therefore that the director would be someone who is unacceptable to the services. For the reasons that I have given, I invite the noble and gallant Lord to withdraw the amendment.

Lord Inge: I thank the Minister for that reply and the assurances that he has given. He clearly recognises our concerns. I understand why it is not possible to include the measure in the Bill. However, somehow we need to involve single service people such as the Adjutant-General, the Air Member for Personnel and the Second Sea Lord in selecting candidates so that they are confident that the person selected is someone whom they can support. I ask the Minister to recognise that this is a matter about which the services, not just noble and gallant Lords sitting in this Chamber, feel strongly. I shall withdraw the amendment, but I may wish to return to the matter on Report.

Lord Drayson: I am grateful to the noble and gallant Lord. I recognise the strong feeling in the services on this matter and I shall do as he requests.

Lord Inge: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 186 not moved.]

Clause 358, as amended, agreed to.

Clause 359 [Prosecuting officers]:

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Lord Drayson moved Amendment No. 186A:

On Question, amendment agreed to.

Clause 359, as amended, agreed to.

Lord Drayson moved Amendment No. 186B:

“Service Complaints Commissioner (a) a member of the regular or reserve forces; or (b) a person employed in the civil service of the State. (a) as the servant or agent of the Crown; or (b) as enjoying any status, immunity or privilege of the Crown.”

The noble Lord said: I beg to move.

Lord Thomas of Gresford: I wonder whether the Minister would agree not to move that amendment at this stage. I think that my noble friend Lord Garden indicated that he wished to consider the amendment, which was tabled rather late, and would return to the matter on Report. We would welcome the opportunity to look at the wording and possibly to improve it.

Earl Attlee: Would it not be better to have it in the Bill and, if we are not quite happy with it, to amend it on Report?

On Question, amendment agreed to.

Clauses 360 to 363 agreed to.

Schedule 15 [Civilians subject to service discipline]:

Earl Attlee moved Amendment No. 187:

“(c) any period when pressurised doors are closed.”

The noble Earl said: I shall also speak to Amendment No. 188. These two little amendments amend or extend the provisions relating to civilians subject to service discipline. Amendment No. 187 affects aircraft. It suggests that service law should apply when the pressurised doors are closed, rather than just when the engines are running. Schedule 15 is amended accordingly.

On Amendment No. 188, the Committee will be aware that civilian contractors are being deployed on operations increasingly frequently. The term used is CONDO. There are all sorts of legal difficulties, and I know that the MoD is grappling with them, but CONDO is essential and is here to stay. Is the Minister convinced that the arrangements in Schedule 15 and the other arrangements are fit for the purpose of using contractors deployed on operations? I beg to move.

Lord Drayson: Amendment No. 187, on which I can be brief, would extend the service jurisdiction to civilians in military aircraft before it is necessary to do so. That is why we do not believe that it is necessary.

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Speaking more fully on Amendment No. 188, the noble Earl, Lord Attlee, asked whether we believed that the schedule was fit for purpose. We do, since the extent to which the new Act should apply to civilians has been very carefully considered by the Ministry of Defence. The starting point was to identify those civilians with a sufficient connection with the Armed Forces to justify making them subject to a limited range of offences under service discipline. Two key requirements emerged from that. First, that civilians should be subject to this limited system if they are physically located with the forces, for example, when resident or staying in service accommodation, or travelling in Her Majesty’s ships afloat. Secondly, even if not physically located with the forces, civilians should be subject to service discipline if the nature of their relationship with the forces is such as to justify it. Thus, for example, the jurisdiction should extend to persons working in the support of the forces. I have seen for myself in operations the vital work that those civilians do, for example, in the support of our communications network.

The noble Earl’s substantive amendment would not cover the range and diversity of the civilian workforce connected to the Armed Forces; for example, journalists, freelance consultants, employees of welfare bodies such as the British Red Cross, or the Navy, Army and Air Force institutes, to name but a few, would be excluded. More broadly, the amendment does not provide flexibility for the Defence Council to categorise civilians on a case-by-case basis or to specify geographical or physical locations to where service disciplines should apply. In short, the noble Earl’s amendment is undesirable and I hope that he will not press it.

Earl Attlee: I thank the Minister for his reply and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 pm

[Amendment No. 188 not moved.]

Schedule 15 agreed to.

[Amendment No. 189 not moved.]

Clauses 364 and 365 agreed to.

Clause 366 [Orders, regulations and rules]:

Earl Attlee moved Amendment No. 190:

The noble Earl said: I do not intend to press Amendment No. 190, so I hope that I am not shot down by the Minister with his customary skill. However, my Amendment No. 195 is in this group. Schedule 2 is important to the Bill and, therefore, all changes to it should be approved by Parliament. I shall not speak to Amendment No. 198. I beg to move.

Lord Garden: Perhaps if I speak to my amendments, some of the commentaries might be short-circuited. This is a complex grouping that relates to Clause 366, a useful part of the Bill in which

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all the delegated powers are grouped so that they can readily be seen. I should remind your Lordships that I am a member of the Delegated Powers and Regulatory Reform Select Committee. The problem with the clause is that it refers to many previous issues that we have dealt with, and the Government have picked up most of the Select Committee’s recommendations, so I can be brief.

My Amendment No. 192, which seeks to provide stronger parliamentary scrutiny to part of Clause 127, has fully been addressed by the government amendment following the recommendation of the Delegated Powers and Regulatory Reform Committee in paragraph 10 of its report.

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