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Normally, as I have said, drugs are administered to members of the Armed Forces on the basis of advice, considered medical advice and then informed consent. Personnel would not normally be ordered to take drugs. If they were to be ordered to take drugs, that would be done only with the express agreement of the Secretary of State acting on legal and medical advice. Apart from the difficulties of the definition of performance-enhancing drugs, I do not see the need for a specific clause about them. I hope that reassures the noble Lord.
Lord Garden: My Lords, I am grateful to the Minister for the very helpful response to both questions that I raised. I take his assurances on my first two amendments on advice. I would welcome some clarification in writing perhaps about the question of relative rank, because I have not quite got my head around that yet.
We have had a useful exchange on performance-enhancement drugs. I accept that we are looking at an uncertain future, and the noble Lord has given some assurances about how these drugs will be handled. The only thing that concerned me slightly was that he appeared to want to lump performance-enhancing drugs into the same category as those that either cure illness or prevent infection and the like. There are wider arguments, but this Bill is not the place for them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 22 and 23 not moved.]
Clause 24 [Damage to or loss of public or service property]:
Clause 31 [Hazarding of ship]:
Clause 32 [Giving false air signals etc]:
Clause 36 [Inaccurate certification]:
Lord Drayson moved Amendment No. 27:
The noble Lord said: My Lords, I shall speak to Amendments Nos. 27, 28 and 73. Amendments Nos. 27 and 28 respond to concerns raised in Committee that the offence of inaccurate certification was too narrow. I undertook to look at this again, and I have done so. Similar concerns were raised when the Bill was scrutinised in another place.
The offence of inaccurate certification is committed if a service man or woman signs a relevant certificate without ensuring its accuracy. Relevant certificates relate to Her Majesty’s ships, aircraft and aircraft materiel. The amendment would provide for the extension of the offence of inaccurate certification to prescribed equipment. I am grateful to the noble Lord for pushing me to further consider this. The point that he made about equipment on land vehicles relating to identification of friend or foe was a very cogent argument. There is, however, a balance to be struck between extending the offence to all service materiel, which would be excessively bureaucratic, and ensuring that it can cover equipment
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Putting a list of descriptions of equipment in the Bill would be too inflexible and would not take into account changes in technology. The amendment therefore provides for the Defence Council to prescribe the descriptions of equipment to which the offence applies. Amendment No. 73 to Clause 373 requires these Defence Council regulations to be made by statutory instrument. That provides the appropriate level of scrutiny while ensuring the services retain the central voice over which equipment is described for this purpose. The services have been consulted about this and are content with the proposal that I have brought forward. I am grateful to noble Lords for highlighting this issue, and I hope that the amendment meets with your Lordships’ approval. I beg to move.
Lord Astor of Hever: My Lords, these necessary amendments extend the scope of Clause 36 and the offence of inaccurate certification to beyond ships and aircraft. We argued for that change in Committee and I am grateful to the Minister for his response. Although Amendment No. 28 is perhaps vague at first glance, I fully accept his argument in favour of flexibility and I am pleased that he has left it to the Defence Council to prescribe descriptions of equipment to which the offence will apply. That will allow the Armed Forces themselves to influence which equipment is covered by the offence. Therefore, we welcome and support these amendments.
Lord Garden: My Lords, We, too, welcome the amendment. The Minister wrote to me on 23 October to explain how he had taken on board my concerns expressed in Committee about the narrowness of the inaccurate certification clause. I am pleased that he has brought forward these amendments, which will allow the regime of certification to meet future challenges.
However, the annexe to the Minister’s letter stated that the situation remained that testing and checking of all land equipment did not involve a formal certification procedure and that such a procedure would not be practical or useful. I understand that the Minister believes that he needs to look at the issue on a case-by-case basis, and that is important, but the letter gave the impression of there being closed minds within the land systems staff. As the services work more closely together, they need to pick up best practice from each other. Lives depend as much on proper servicing and checking of audit systems on land as on the sea and in the air, where the services have been more practised in that.
I welcome these amendments, but perhaps the Minister might wish to keep an eye on this matter, outside the confines of the Bill.
Lord Drayson: My Lords, the noble Lord is right to be alive to the nuances of such language. I am focused on this area and recognise, given the changing technology of our land systems, that these issues are as relevant to complex land systems as they are to the maritime and air environments. I shall keep my eye very carefully on them.
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Earl Attlee: My Lords, I, too, am grateful for the amendment. One of its advantages is that most people in the Armed Forces will not bother to look at the Defence Council regulations, but it will concentrate their minds in that they must not sign a false certificate.
On Question, amendment agreed to.
Lord Drayson moved Amendment No. 28:
(d) any equipment of a description prescribed by regulations made by the Defence Council.”On Question, amendment agreed to.
Clause 38 [Other prize offences]:
Clause 30 [Allowing escape, or unlawful release, of prisoners etc]:
Lord Thomas of Gresford moved Amendment No. 30:
“(1A) A person shall not be charged with an offence under this section committed in the United Kingdom if the corresponding offence under the law of England and Wales is treason, murder, manslaughter or rape.
(1B) Where the corresponding civil offence is murder or manslaughter, an offence under this section shall be deemed, for the purposes of subsection (1A), to have been committed at the place of the commission of the act or occurrence of the neglect which caused the death, irrespective of the place of the death.”
The noble Lord said: My Lords, although the amendment is grouped with Amendments Nos. 31 and 35, they relate to three separate and important issues. If noble Lords, in particular the noble Lord, Lord Campbell, will forgive me, given that things have moved on since Committee, I think that it is necessary to spend some time considering these amendments.
Amendment No. 30 simply repeats the provision in the Army Act 1955 that:
which relates to the military charge for committing a civil offence,
- “committed in the United Kingdom if the corresponding offence under the law of England and Wales is treason, murder, manslaughter or rape”.
Noble Lords who were here when we debated this matter in Committee may recall my comment in withdrawing the amendment that I had not heard any reason from the Government as to why a change as dramatic as this was being made in the existing provisions.
I am grateful to the noble Lord, Lord Drayson, and to the Bill team, who, no doubt, assisted him, for writing to me extensively on 25 October. In particular, the justification put forward in the letter was that the present exclusions for “treason, murder, manslaughter or rape” committed in the United Kingdom were, he stated, “an historical anomaly”. He went on to say:
“By this I mean that it is anomalous that the Service system can deal with very serious sexual offences committed in the UK but not rape; that they can deal with grievous bodily harm or official secrets cases in the UK but not manslaughter. And they can deal with very serious cases (carrying up to life imprisonment) for a number of offences committed within the UK (as well of course abroad). The list of exclusions is arbitrary”.
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5.15 pm
Having had that letter from the Minister, I realise that it is an arbitrary list of exclusions. However, the answer is not to remove those exclusions but to extend the offences which, if committed in the United Kingdom, should not be subject to court martial. Thus, not only should a soldier or a civilian subject to service law not be charged with offences of treason, murder, manslaughter or rape committed in the United Kingdom, as at present, but, following the Minister’s analysis, he should not be charged with any offence carrying a sentence of life imprisonment.
Perhaps I may explain to your Lordships that if a person is sentenced by court martial to more than two years’ imprisonment, he is immediately thrown out of the services and will serve his sentence not in a military prison but in an ordinary prison as a civilian. If the sentence is life imprisonment, he then becomes subject to the regime for lifers within the prison and he will be subject to all the usual routines of parole and so on until his sentence is exhausted. So, if a soldier or civilian subject to service law is to be convicted of serious offences such as that and immediately lose his status, it seems right that he should have the opportunity of being tried in the Crown Court and not by court martial. Therefore, I propose to withdraw Amendment No. 30 and redraft it for the purposes of Third Reading to extend the list of offences that would be subject to ordinary trial.
The Minister also says—this is really at the crux of the matter so far as we are concerned—in his letter:
“I do not accept that a military system which is the equivalent of the civilian system must be the same as that civilian system in every respect. Our aim is to create a service system which is as good as the civilian system and which is appropriate for the services. It must be capable of operating in a service context and have due regard to that context”.
I am sure that it is the Government’s aim to try to bring the court martial system up to the standards of the civil system, as exemplified by trial by jury in the Crown Court. It seems to me that, if the Government were to accept some of the amendments that we have tabled, they would be some way along the line to improving the system. It has improved over the years but not as a result of the desire of any Government, whether this or any predecessor Governments; it has improved because of decisions of the European Court of Human Rights, which has pointed out in judgment after judgment that a fair trial by court martial has not been possible in important cases.
That brings me to Amendment No. 31. Although, as with all Bills, this Bill was certified by the Minister as complying with the European convention at the beginning of its passage, a decision of the European Court on Wednesday last week was fundamental. I pray it in aid in support of Amendment No. 31.
Your Lordships may recall that in Committee we discussed the case of Martin, in which I was involved. It went to the House of Lords and subsequently, in 1997, to the European Court. The judgment was delivered last Wednesday, just in time for this debate. That gives your Lordships some idea of the importance of the Human Rights Act—it was not available for the House of Lords' decision in 1997—in bringing the European Convention into British law.
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This was the trial of a 17 year-old civilian, the son of a serving soldier, for murder. The trial took place by court martial in Germany because at the time of committing the offence his father was in the Army, stationed in Germany. By the time the trial took place, 12 months later, his father had left the forces and the young lad was taken back to Germany, having been on remand in this country, and he was tried there. First, the matter went to the courts martial appeal court in which the noble and learned Lord, Lord Bingham, who was then Lord Chief Justice, said:
that is, of an abuse of process—
“With the benefit of hindsight, it seems plain that the trial could have been conducted in England without undue difficulty. It would in our view have been preferable if this young appellant, whose subjection to military law was purely vicarious and involuntary, had been tried here with all the procedural safeguards which procedure in the ordinary criminal courts affords. We cannot, however, stigmatise these proceedings as abusive. They were strictly in accordance with a procedure prescribed by Parliament to apply in such cases”.
As I said to your Lordships, the Human Rights Act had not been thought of when that case was heard in 1996.
When the matter went to the House of Lords, the noble and learned Lords, Lord Slynn of Hadley and Lord Hope of Craighead, expressed the view that the decision to prosecute the applicant, a civilian aged only 17 at the time of the murder, by court martial had been inappropriate. Again, the decision was that the proceedings were conducted within the rules laid down by Parliament and could not, therefore, be abusive.
It is very interesting to see what the European Court of Human Rights has made of this in its judgment which was published last Wednesday. An important judge in that court is Sir Nicolas Bratza, a very distinguished English lawyer who, when practising in this country, used to appear mainly on behalf of the Government. He has an impeccable background. The European Court went beyond children under the age of 18 to all civilians and decided:
“It is, however, a different matter where the national legislation empowers a military court to try civilians on criminal charges ... While it cannot be contended that the Convention absolutely excludes the jurisdiction of military courts to try cases in which civilians are implicated, the existence of such jurisdiction should be subjected to particularly careful scrutiny, since only in very exceptional circumstances could the determination of criminal charges against civilians in such courts be held to be compatible with Article 6”—
that is, the article which requires a trial to be fair—
“The power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis”.
It concluded that the complaint of young Martin was fully justified and upheld his appeal and awarded costs. There was a violation of the requirements of a fair trial. In the past few days, the European court has decided that that which is proposed in the Bill denies to a defendant a fair trial.
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Bearing in mind the Martin case, my amendment is limited to a civilian under the age of 18 who is subject to service discipline. It suggests that no civilian of that age may be prosecuted before the court martial for an offence under this clause. The service civilian court should set up a proper system of juvenile courts, or something akin to them, which could deal with the under-18s. No more should youngsters who have not joined the Army, Navy or Air Force be hauled in front of a court martial, with all that that implies, but without, as the then Lord Chief Justice, the noble and learned Lord, Lord Bingham, said, the procedural safeguards that the Crown Court affords.
I say it loud and clear: we have moved a long way on courts martial. However, they are not the equivalent of a Crown Court jury trial with the procedural safeguards we have in this country. Still the Government drag their feet with this Bill in front of them. I do not suppose we will look at the issue again for 10, 15 or 20 years.
I hope that the Government can respond. They must respond to the European court’s judgment. In his letter, the noble Lord, Lord Drayson, says that:
“Given the ruling of the European Court in Martin which we have received today I am sure you will understand if I confine my comments for now to these issues in relation to service personnel”.
As your Lordships would expect, the Government were not able to respond so quickly, in relation to civilians, to a judgment delivered only last Wednesday. Again, that is why I will not be pressing Amendment No. 31 tonight, but I shall table it again at Third Reading. That will at least give the Government a little time to consider whether this Bill is not the ideal opportunity to respond to the concerns of the European Court of Human Rights.
I told your Lordships that these were three disparate issues. Amendment No. 35 is on a different, although not unrelated, issue. In 1861, 150 years ago, it was decided that the courts of the United Kingdom could try any British citizen charged with murder, even though that murder did not take place in the United Kingdom. Any British citizen may be tried for an offence committed abroad. All that Amendment No. 35 provides for is that, where the courts of the United Kingdom have such extra-territorial jurisdiction to try a service offence committed abroad, the defendant may elect to be tried in the United Kingdom.
All the opposition to our amendments has been along the lines that we must maintain disciplined services. I entirely agree with that aim. We should stop from time to time, however, and look at it from the defendant’s point of view. That is what is missing. We have looked at the criminal court system in this country with the aim of ensuring a fair trial and doing what is right for the individual, and have tried to prevent the innocent from being convicted. Notwithstanding some of the recent measures by the Government that have weakened the position of the defendant in the British courts, we still look at it from the defendant’s point of view. We should do that when considering a military system of justice, instead of always concentrating on the needs of discipline, morale and so on. We should look at whether a person charged with an offence before a court martial
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5.30 pm
Lord Drayson: My Lords, this is an important matter, so I will speak to it in some detail. Amendment No. 31 seeks to prevent civilians who are under 18 being tried before a court martial. As the noble Lord, Lord Thomas of Gresford, said, on 24 October the European Court of Human Rights gave its judgment in the case of Martin. We need to be clear what it decided.
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