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But it is very difficult to know quite how to approach what has been said. The fundamental conflict is that the noble and gallant Lords think there should be a new service law which recognises the realities of armed combat and which servicemen can trust—they have said so on Second Reading and on other occasions too—and the noble Lord, Lord Drayson, says, “No, we do not want that”. The second form of conflict, which could be resolved, is that the noble Lord, Lord Thomas of Gresford, says, “Yes, perhaps we should do something about it, but we are not going about it in the right way”—a perfectly legitimate comment. My noble and learned friend Lord Mayhew of Twysden thinks we should do something about it and, naturally, would like to think again about how we are going to do it. Unfortunately, how we are going to do it, I am afraid, could never be

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agreed between the noble Lord, Lord Kingsland, and myself because we have a fundamental disagreement about statutory force, an issue which we cannot resolve. In that respect, I am basically on the side of the noble Lord, Lord Drayson. I quite agree that there are many principles at stake, but what are we going to do about it? Frankly, I do not really know, but I think something must be done.

I should say to the noble Lord, Lord Thomas of Gresford, that in the case of the Scots Guardsmen—I happen to know about it—the soldiers’ orders that morning, a Scots Guardsman having been killed by a sniper the day before, were to stop and search. They had been trained with their rules of engagement to give the warning twice—“Stop or I’ll fire”. They had been trained to fire in a certain position, in a certain way, at a certain part of the body to kill or maim. That was their training. On the last occasion, General Sir Mike Jackson was sitting on the Army board. He cross-examined them in depth and was totally satisfied that they were telling him the truth. It is no use saying that if people comply with the rules of engagement, as the noble Lord, Lord Drayson, did, they are all right. The men did not have a defence—they were not all right. If they had had a defence, they could have avoided their conviction.

I will not take up more of your Lordships’ time. I frankly do not know what to do about this, but I feel, like I think the majority do, that something has to be done. I will try and find out how to do it and will be withdrawing the amendment.

Lord Kingsland: My Lords, Amendments Nos. 33 and 34 are amendments to Amendment No. 32 in the name of my noble friend Lord Campbell of Alloway. Although I do not in any way resile from what I said in support of them, I do not propose to press them. I beg leave to withdraw the amendment.

Amendment No. 33, as an amendment to Amendment No. 32, by leave, withdrawn.

[Amendment No. 34, as an amendment to Amendment No. 32, not moved.]

Lord Campbell of Alloway: My Lords, I beg leave to withdraw the amendment.

Amendment No. 32, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 35:

The noble Lord said: My Lords, fifty-seven minutes have passed since I spoke to this amendment, but my determination to have the opinion of your Lordships' House on it has not diminished. Accordingly, I beg to move.

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6.42 pm

On Question, Whether the said amendment (No. 35) shall be agreed to?

Their Lordships divided: Contents, 59; Not-Contents, 134.

Division No. 3


Addington, L. [Teller]
Barker, B.
Beaumont of Whitley, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Brookeborough, V.
Chidgey, L.
Clement-Jones, L.
Dahrendorf, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Flather, B.
Garden, L. [Teller]
Glasgow, E.
Greaves, L.
Harris of Richmond, B.
Jones of Cheltenham, L.
Kirkwood of Kirkhope, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
Maddock, B.
Mar and Kellie, E.
Masham of Ilton, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Monson, L.
Neuberger, B.
Newby, L.
Nicholson of Winterbourne, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Russell-Johnston, L.
Sandwich, E.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Taverne, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Walmsley, B.
Walpole, L.


Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Boothroyd, B.
Boyce, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Craig of Radley, L.
Crawley, B.
Cunningham of Felling, L.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.

31 Oct 2006 : Column 216

Gould of Potternewton, B.
Grantchester, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Henig, B.
Hogg of Cumbernauld, L.
Howarth of Newport, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Inge, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of The Shaws, B.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Levy, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McDonagh, B.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Maxton, L.
Meacher, B.
Mitchell, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
O'Neill of Clackmannan, L.
Park of Monmouth, B.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Puttnam, L.
Quin, B.
Radice, L.
Rendell of Babergh, B.
Rooker, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
St. John of Bletso, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Snape, L.
Soley, L.
Stevens of Kirkwhelpington, L.
Taylor of Bolton, B.
Temple-Morris, L.
Triesman, L.
Trimble, L.
Truscott, L.
Tunnicliffe, L.
Uddin, B.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.52 pm

Clause 133 [Detention: limits on powers]:

Earl Attlee moved Amendment No. 36:

The noble Earl said: My Lords, I shall speak to Amendment No. 37 as well. I moved an identical amendment in Committee.

My position is that the power to dish out 90 days’ military detention summarily is just too much. I am not convinced that commanding officers want this power. It is not much fun exercising summary judgments and many commanding officers will be distinctly uncomfortable awarding more than 30, let alone 60 or 90 days’ military detention, even if it can be awarded only using extended powers and with the prior knowledge of the defendant—a point of which I am sure the Minister will remind us—and even though the Royal Navy already has 90 days available for detention.

The House needs to understand that military detention is not some form of military community service but a severe but effective regime. The Minister will argue that the change is desirable because without retaining 90 days for the Royal Navy the number of courts martial might have to be increased. That is a fair point, but if the Army can manage with a maximum of 60 days, what is the Royal Navy doing

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wrong with its regime of military detention? It must be doing something wrong. Why cannot it achieve the desired corrective effect with only 60 days? I should be interested if the Minister could tell us how often Royal Navy commanding officers have been granted extended powers beyond 60 days.

The Minister will also argue that if the Army and Royal Air Force were granted the ability to award 90 days with extended powers, they would be able to reduce the number of courts martial by increasing the punishment available, because it would not be necessary to resort to court martial. But the argument would be more convincing if we saw Army commanding officers regularly seeking and using extended powers. One senior Army officer to whom I spoke last week said that he never sought extended powers when he was a commanding officer, and when he was a brigade divisional commander he never granted them. It would be helpful if the Minister could show some statistical evidence that the extended powers are currently being sought and used by commanding officers and of the extent to which the Royal Navy uses extended powers over 60 days.

Make no mistake—I was and still am prepared to exercise military discipline, but detention of over 60 days is excessive. I beg to move.

Lord Garden: My Lords, I supported the noble Earl in Committee on what seemed a sensible amendment, seeking to harmonise detention powers to levels that have been perfectly satisfactory for the Army and Royal Air Force in the past. I look forward to hearing from the Minister how often the Royal Navy uses its powers between 60 and 90 days and why the circumstances are so different.

There is another question, which I trust that the Minister has examined, of the resource costs that may be affected by this. Of course, if one brings up a level of punishment to a higher one, it sucks up the cases of people who would normally get lower punishments. That may involve extra resources in detention provision. I hope that the Minister will be able to tell us that that has been taken into account.

Lord Drayson: My Lords, there has been much interest in the position of the commanding officer in the military criminal justice system, and I believe that we are all agreed on the importance of this. In recent years, some 95 per cent of cases have been dealt with at summary level. These sorts of cases, minor in terms of the criminal law, cover the low-level misconduct which, if not dealt with, can have a significantly corrosive effect on unit discipline and cohesion. We are convinced, and I am sure that the noble Earl will agree, of the merits of this approach.

A key element of our consideration has been to ensure that in the future commanding officers will be able to deal with an appropriate range of offences. We have looked carefully at the different approaches of each of the services. We have done so in anticipation of the requirement in years to come and therefore

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against a background of an increasingly expeditionary approach to operations in all our armed services. This has informed our approach to the offences that commanding officers should be able to deal with and the levels of punishment which they should have available.

Under the Bill, Army and Air Force commanding officers will be able to deal with a small increase in the number of offences than they can deal with now. These are offences, such as assault occasioning actual bodily harm, which in straightforward cases are regularly dealt with by their naval counterparts and which, if proved, may require greater punishments. We must not forget, of course, that at Clause 239 it is specifically provided for that an accused must be given credit if he admits an offence and has co-operated with service police, and this applies to punishments awarded in the new summary hearing system as well as at the court martial.

I am happy to send further detailed examples to the noble Earl of the Navy’s use of this power, but I can give some data on how often it is used. In 2005, Royal Navy commanding officers awarded periods of detention 79 times at summary trial. Of these, eight were for 60 days or more, and seven of these followed a guilty plea. In a further 24 cases, commanding officers awarded punishments of more than 40 days’ detention. In 23 of these, credit for guilty pleas may have reduced the punishment from more than the 60 days which this amendment proposes. Removal of the power of 60 to 90 days’ detention for the Royal Navy would therefore generate an unacceptable increase in cases sent for trial by court martial. It would quite simply have an adverse impact on confidence in the system of discipline and on operational effectiveness.

Conversely, by gaining these powers, the Army and RAF might well see a small reduction in the number of cases that need to be dealt with by court martial if accused persons are happy to be dealt with by their commanding officer. There are important safeguards in place over the use of extended powers to deal with the additional offences and the use of sentences of detention longer than 28 days.

The powers of punishment available to commanding officers is an integral element of Bill proposals. The amendment would have an immediate adverse affect on the administration of discipline in the Royal Navy and would remove what would be an important improvement for the Army and Air Force. The proposals in the Bill have been carefully developed to reflect the current and anticipated future requirements for commanding officers and safeguards appropriate for service personnel. I hope that in light of this explanation the noble Earl will withdraw his amendment.

7 pm

Earl Attlee: My Lords, I am still a bit disappointed. The Minister mentioned actual bodily harm. It is sensible to include that as an offence that could be dealt with summarily, for the simple reason that actual bodily harm need not be a very serious assault. It is a matter of some damage being done to the victim.

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The Minister said that the Bill was being carefully considered. I suspect it is rather more that the Royal Navy won this battle. I am grateful for the Minister’s response. I think he is wrong, but I will not return to my amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 37 not moved.]

Earl Attlee moved Amendment No. 38:


The noble Earl said: My Lords, I shall also speak to Amendments Nos. 39 to 48. The Government have made it much harder for the commanding officer to exercise summary jurisdiction. It is thus harder to maintain discipline and morale in military units. I always wondered how the services would work around these legislative changes. The answer is what is called “administrative action”, which is taken instead. By and large, service personnel are content with this, because when they foul up, the matter can be dealt with speedily—a short flash-to-bang time—just like the situation that obtained before the moving target of the ECHR impacted upon the summary dealing arrangements. Ministers from my party have been just as morally weak-willed as those from this Government.

The problem, though, is that there is no appeal against administrative action. That is particularly significant if the action is a discharge, or, in the case of an officer, a requirement to resign the commission. The Minister will point to the grievance procedure and the welcome changes under the Bill. However, I think there is still a gap, particularly in the case of forced discharge or resignation, because it is harder to fight your case from without.

Some noble Lords may think the tribunal might be a hindrance to the chain of command. I do not think it should be. For instance, suppose a serviceperson’s career is to be terminated because his services are no longer required. He can be discharged. With the proposed tribunal, however, the decision to discharge can be repealed, and rapidly, because there is a provision in my amendment to provide for rapid decision-making. In a case similar to that of Mr Skinner, of Deepcut notoriety, the tribunal could not—indeed, would not—take very long to reject any appeal against discharge on the grounds of suitability to serve in Her Majesty’s forces.

Another problem arises where a serviceperson is required to pay for loss or damage of equipment. I confess I am not fully conversant with current procedure and the provisions of the Bill, but I have personally been invited to pay for loss of equipment by administrative action. I never signed for the

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equipment I was alleged to have lost—a sleeping bag. The quartermaster sergeant did not have any paperwork that I had signed to show that I had lost a sleeping bag. The problem was that everyone in the squad had signed for a sleeping bag, so he assumed that I had lost one. I had not. Old soldiers will be thinking, “No change there”, but a tribunal would provide some way of rapidly seeking redress.

Some noble Lords may think that this process would be terribly time-consuming. The tribunal could consider several simple cases in a morning, but in more complicated cases it may be able to deal with only one in a sitting. Some might think that the tribunal should have a wider remit, but in drafting my amendment I was careful not to overlap with the remit of the commissioner of military complaints. My objective is to provide a means of appeal primarily against administrative action, which is becoming much more prevalent, particularly against a discharge or requirement to resign the commission. I beg to move.

Lord Garden: My Lords, I welcome the fact that the noble Earl, Lord Attlee, has moved his amendment on administrative tribunals, which we did not have time to consider in Committee. The use of administrative action by the services in order often to bypass the need for legal action was commonplace in the past and, from what the noble Earl says, that has not changed over the years since I was in the services. Whereas civilians have recourse to industrial tribunals when their employer deals with them through comparable action, the only action open to the serviceman at the moment is a redress of grievance, which we know is ponderous and not transparent in showing justice being done.

I recognise that we may have a new situation with the ombudsman arriving, which may solve some of the problems. The one criticism I had of the noble Earl’s amendment was that at Amendment No. 39 the rights of appeal seemed to be rather narrowly drawn. I can think of cases of administrative action, varying from merely placing a letter on the personal file through to a posting on short notice, that might in other jobs amount to constructive dismissal because it has affected the person’s career.

I support the principle here. If we can ensure the needs are covered by the commissioner, we may be able to meet the needs that there are, but we need to be aware that administrative action in the services is an important part of the set of different disciplinary measures available to commanding officers.

Lord Drayson: My Lords, Amendments Nos. 38 to 48 seek to create a right of appeal to a form of tribunal against certain administrative actions, mainly any decision to discharge someone or to require him to resign. The tribunal would be able to overturn the decision or decide on other administrative action.

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