Lords Hansard text for 12 Oct 200612 Oct 2006 (pt 0015)

Amendment No. 197 seeks to ensure that any changes to the court martial rules covered by Clause 162 are subject to the affirmative procedure. The clause gives a long and detailed, but not necessarily exhaustive, list of provisions that may be made. Therefore, it is at the heart of ensuring that the system is fair and just. Paragraph 17 of the Delegated Powers and Regulatory Reform Committee’s report recommended that,

I note that a government amendment deals specifically with that point. I agree with that, but I wish to go further: we need all rules to be subject to affirmative procedure, given their central importance to the court martial system.

My Amendment No. 199 brings four sets of regulations into affirmative action. I shall not deal in any detail with those covered by the government amendments—that is, Clause 270, Clause 326(2)(c), Clause 328 and Clause 332(2).

However, I should like to address Clause 334(5). Clause 333(1) enables the Defence Council to delegate its functions to a service complaint panel, but Clause 334(5) allows the Secretary of State to change the composition of that panel by negative procedure. Given that that could change the new system in a significant way, affirmative action is appropriate, as the Delegated Powers and Regulatory Reform Committee recommends at paragraph 26. However, I note that the Government have narrowed their change down to just Clause 334(5)(a). In my view, that does not meet the recommendation of the Delegated Powers and Regulatory Reform Committee and it leaves open all aspects of the service complaint panel, apart from composition. I wish to hear the Government’s reason for not fully addressing the committee’s concerns.

Lord Drayson: I am in awe of the noble Lord’s grip of the complexity of these matters at this late stage in the consideration of the Bill. I shall respond to Amendments Nos. 195, 197 and 199. I am grateful to the noble Earl, Lord Attlee, for his clarification and for avoiding unnecessary description.

This group of amendments all have the same effect: making the rule-making clause to which they refer subject to the affirmative resolution procedure. To a large extent, the government amendments achieve what each of the noble Lords’ amendments would do,

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but we are not convinced that quite all those which are the subject of amendments should be subject to the affirmative resolution procedure.

The Bill contains a number of rule-making powers. Many concern procedural detail, which may need to be amended to accommodate operational requirements or changing circumstances. When it is appropriate to make a rule-making power subject to the affirmative procedure, we have provided for that. In particular, we have accepted all the recommendations of the Delegated Powers and Regulatory Reform Committee.

In relation to Amendment No. 197, concerning court martial rules, we consider that the rules which govern the constitution of the court martial and those on sentencing when an accused has elected trial should be subject to the affirmative procedure. However, we do not consider that it is necessary or appropriate for the rules which deal with procedural details to be so subject.

Similarly on Amendment No. 199, we agree that the aspects that relate to matters which are excluded from the redress system and the composition of the panel should be subject to the affirmative procedure, and, among other things, government Amendment No. 195A achieves that. But we are not persuaded that it is appropriate for the affirmative procedure to apply to all the procedural detail concerning the panel.

Finally, we do not consider that, as proposed in Amendment No. 199, the regulations concerning desertion and forfeiture of service under Clause 328 merit the affirmative procedure. We have made a number of other matters subject to the affirmative procedure by our amendments to this clause. These include the procedure for referral of cases to the prosecuting authority, the referral of cases by the service complaints commissioner, and any provisions that we make aligning the service discipline Acts with the Bill.

I hope that noble Lords are content that in large measure we agree with their view of what needs to be subject to affirmative resolution and that they recognise that in general the government amendments achieve that. In the circumstances, I ask noble Lords not to press their amendments and to support those of the Government.

Lord Garden: The Minister’s reply contained no surprises in the sense that it restated the position as it is. The only area at which I will need to look further is my question whether the Government’s amendments have fully taken on board paragraph 26 of the 23^rd report of Delegated Powers Regulatory Reform Committee, which recommends that the power in Clause 334(5) shall also be subject to the affirmative procedure, in that the amendment relates to paragraph (a) of that subsection.

It may sound like a detail but these delegated powers are remarkably important, so we could perhaps discuss that and come back to it, particularly as the government amendments have rejigged the way in which they have been presented at rather late notice, and I may not have caught all the subtleties of it.

Earl Attlee: I am grateful to the Minister for that response, and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

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Lord Drayson moved Amendment No. 191:

Page 183, line 30, after “89,” insert “113,”