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I cannot support an amendment that would require the division on a majority verdict to be disclosed to the court. That does not occur in the magistrates’ court, as the decision of the lay members of the Bench is the decision of the court. That is the effect that we seek to replicate for the court martial. The only occasions when splits are announced to a court are when judges are giving their verdicts—for example, in the House of Lords. Lay members of a

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court martial are not judges and I see no good reason to depart from the model of the magistrates’ court in that respect.

Finally, on Amendment No. 59, I welcome the opportunity to address the issue raised by the noble Earl, Lord Attlee, and spoken to by the noble and gallant Lord, Lord Boyce, in relation to court centres. As I said at Second Reading, the military criminal justice system must operate where there are significant concentrations of service personnel. It is therefore quite right for the noble Earl to raise the issue of Scotland, where in future there will be more personnel from all three services, from Faslane to Lossiemouth. As I said in June in reply to the noble and gallant Lord, I believe that there is a strong service case for Scotland, and for the south-west.

I do not believe that the court martial in the UK should be confined to the three new court centres. I am sure that in complex cases where their excellent facilities will be essential, all three services will use them. That is common sense. It is also common sense that where there is no such specialist requirement, the key driver must be the operational effectiveness of the services and not of court buildings. I am sure those who provide services to the military criminal justice system will recognise that.

I hope that the noble Earl will understand why, having supported his reasoning, I am unable to support his amendment. This is not a matter on which we should legislate, but I hope that I have given comfort to him as to our direction in this matter. I hope that the noble Lord will be encouraged by my response and will not press his amendment.

On Question, amendment agreed to.

[Amendments Nos. 50 and 51 not moved.]

The Deputy Speaker (The Countess of Mar): My Lords, Amendments Nos. 52 and 53 have been entered wrongly on the Marshalled List, so I shall first call Amendment No. 53.

Lord Drayson moved Amendment No. 53:

On Question, amendment agreed to.

[Amendment No. 52 not moved.]

Lord Drayson moved Amendment No. 54:

(a) the minimum required by subsection (1)(b); or (b) where rules made by virtue of subsection (2)(a) apply instead of subsection (1)(b), the minimum required by those rules.”

On Question, amendment agreed to.

[Amendment No. 55 not moved.]

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Clause 159 [Rulings and directions]:

Lord Drayson moved Amendment No. 56:

On Question, amendment agreed to.

Clause 160 [Decisions of Court Martial: finding and sentence]:

Lord Thomas of Gresford had given notice of his intention to move Amendment No. 57:

(a) in a case where there are not less than seven members of the court, five of them agree on the finding; and (b) in a case where there are five members of the court, four of them agree on the finding.

The noble Lord said: My Lords, although I have already spoken to the amendment, I wish to reply to the Minister’s comments. It is unfortunate that the Government have not taken the opportunity of bringing in proper majority verdicts. I do not accept the Minister’s reasons on this matter. Majority verdicts would give much more confidence to the public and to those in the services in knowing that where serious charges are brought, carrying with them sentences of life imprisonment, more than a simple majority of officers and warrant officers in a court martial should be required. A great opportunity has been missed.

Perhaps I may comment briefly on the court martial centre in Scotland. I know that my friend and colleague, Mr Gilbert Blades, frequently visits Kinloss and Lossiemouth. It might have been in one of those camps that the officers’ mess was used for a court martial and an officer was brought before the judge on a contempt of court charge for using the judge advocate’s lavatory. I thought that I would share that with your Lordships.

[Amendment No. 57 not moved.]

Clause 163 [Court Martial rules]:

[Amendments Nos. 58 and 59 not moved.]

Clause 308 [Sections 305 and 306: supplementary]:

[Amendment No. 60 not moved.]

Clause 336 [Composition and procedure of service complaint panels]:

Lord Garden moved Amendment No. 61:

( ) an independent member (see subsection (7));”

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 62 to 65, all of which are designed to ensure that an independent member is always available on a complaints panel. Not only would that improve the consistency of approach by the complaints panel but it would give more

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confidence to those who seek redress that there is not some cosy arrangement as it goes up the chain of command.

I would have expected the Ministry of Defence to welcome always having an independent member, as it would almost certainly reduce the number of cases with which the new Service Complaints Commissioner would have to deal. In his reply in Committee, the Minister seemed to think that the arrival of the commissioner would reduce the need for an independent member of the service complaints panel, but both posts are complementary. In his answer then, the Minister again gave specific cases where the Secretary of State might think that an independent member was necessary. But if the Secretary of State makes decisions about when to include an independent member, that will tend to look as though he does not trust the chain of command and that will undermine it. If we have a standard system which is understandable, that will reinforce the chain of command and the confidence that the services have in the system. I beg to move.

Earl Attlee: My Lords, when the noble Lord refers to an independent member, does he mean someone with no military experience whatever or someone who has military experience but is no longer serving in the regular Armed Forces? It might be desirable for someone who is no longer serving and is out of the system to take an independent view, but I am not sure about the presence of a complete lay person.

Lord Garden: My Lords, I mean an independent member in the same sense as in the clause. Perhaps an independent member should always be present rather than only when the Secretary of States decides that one should be there.

Lord Drayson: My Lords, Amendments Nos. 61 to 63 would require an independent member to be present on all service complaint panels, and Amendments Nos. 64 and 65 would allow the Secretary of State to require more than one independent member in prescribed cases.

Our starting point is that at the heart of the relationship between service personnel and the chain of command is the chain of command’s responsibility to investigate wrongs and remedy them. But, in some cases, the balance moves in favour of an independent element in that process.

We have already identified the key areas where an independent element is needed. They are where a complainant alleges unlawful discrimination or harassment, bullying—which can amount to harassment in some instances—or bias or other improper behaviour. But we do not intend to limit the cases to those instances. There will certainly be others in which expertise or independence calls for an independent element. We also propose to ensure independent oversight of the effective working of the system by the appointment of a statutory Service Complaints Commissioner, who will report directly to the Secretary of State.

We considered very carefully the value that an independent member would bring to the decision-making process and concluded that, in addition to the

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key requirement to inject a fresh but informed perspective on a case, we would also look at the knowledge and experience in a particular field. In other cases, independence is not a key requirement, and in those cases there is no reason not to use panel members from the wider chain of command or civil servants—especially ones with knowledge and experience relevant to the complaint.

We therefore believe that our proposals for an independent member on panels in the consideration of certain cases will achieve the right balance between, on the one hand, independence and outside areas of expertise and, on the other hand, the need for the services to respond to complaints and for complaints to be considered by the chain of command with a clear understanding of the service context.

There should not be a requirement for more than one independent member to fulfil this function, given that one member will have been appointed to a particular panel on the basis of his independent and fresh perspective and also, perhaps, experience and expertise applicable to the complaint in question. It is important that the services do, and are seen to, consider and remedy any wrongs, but there should also be an independent element within the system and an independent review of the performance.

On the strength of my response to the proposals, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Garden: My Lords, I do not believe that the Minister said anything new this evening compared with his previous response on this issue, but I shall study what he said carefully in Hansard. This is an important issue as regards how we give the independent panellist some status, but, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 62 to 65 not moved.]

7.45 pm

Lord Garden moved Amendment No. 66:

The noble Lord said: My Lords, I gave notice to the Minister that I would wish to return to the detail of the Service Complaints Commissioner once we had had time to absorb the amendments, which came very late in Committee. We tabled amendments at that stage but we are now in a complex mix of the Government’s proposals and the question of how we fill out some of the detail.

I am most grateful for the Minister’s letter of 24 October, which gave some further information. But, as he said in that letter:

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Time, of course, is very short as regards getting this provision into the Bill in a satisfactory structure. It would be helpful if the Minister could tell us who are the others to be consulted, as mentioned in his letter, apart from the Children’s Commissioner. A question arises over whether the roles of the Children’s Commissioner and the Service Complaints Commissioner are exactly parallel. However, I am aware that the Ministry of Defence has a history of thinking of members of the Armed Forces as children needing appropriate discipline and needing to be kept in order.

The Minister’s letter outlines a timescale for implementation—which, again, is helpful—with selection beginning next year for appointment by the end of 2007. It would be useful to have in the Bill a schedule of what is required for a person to be a service complaints commissioner. That is what my amendment attempts to do. As I said, it has been tabled in some haste because the Government’s amendment came late and we had little time in which to respond.

It is important that this new post should be defined in the right direction. Specifically, can the Minister tell us whether it will meet all the requirements of the Blake report, which considered the need for such a commissioner? For example, paragraph 12.101(iii) of the report states:

Is that the sort of commissioner that the Minister is proposing? I beg to move.

Lord Astor of Hever: My Lords, we oppose the amendments in this group, which are an unnecessary addition, given the presence of Clause 366. We are concerned that the amendment would give even more powers to the commissioner and would therefore undermine the chain of command even further than is done by Clause 366. We have heard many times from noble and gallant Lords and other noble Lords in this House that preserving the chain of command is the essential ingredient for the discipline of the Armed Forces, and we cannot support an amendment that would further weaken that.

Lord Drayson: My Lords, we now return to what I previously called a key part of the Bill, on which I have written to noble Lords. In speaking to Amendment No. 66, I shall also cover Amendments Nos. 67 and 72.

I remain absolutely convinced that the appointment of a Service Complaints Commissioner under the Government’s amendments moved in Committee is right for the way that the Armed Forces operate. It meets the overall objectives underpinning Mr Blake’s recommendation in the Deepcut review, which sought to promote the effective operation of existing military proceedings, rather than to replace them and to provide independent assurance that the procedures are working as effectively as they can. It will provide the best solution for service personnel. They need to have confidence in a fair and efficient system. I believe that this is best achieved by the changes we are making in the Bill. They streamline the existing system and introduce

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independence where that is necessary. But they also retain a connection between redress and the services. I think it essential to retain the important role of the services in looking after the welfare and discipline of those under command.

I would like to reiterate some of the main points of our proposed system. First, the Service Complaints Commissioner will have an important role in relation to allegations of bullying, harassment and other forms of misconduct. The commissioner will be able to refer such complaints to the chain of command, which will then have to check with the alleged victim whether he or she wants to make a complaint. These allegations can be sent to the commissioner by the alleged victim or any other member of the public. So the Bill will provide an alternative to going straight to the chain of command. We will lay down in subordinate legislation, which will be subject to affirmative resolution, how the commissioner is to be kept informed about cases he has referred to the chain of command. This will also ensure that whoever contacted the commissioner about the case can also be kept informed of progress.

There will be independent oversight by the commissioner of the performance of the system as a whole, with direct reports to Parliament and direct access to Ministers. Further, the independent element in the consideration of complaints related to bullying, harassment and other forms of misconduct will be provided by the presence of an independent member on service complaint panels. We have already talked about complaint panels and I now want to concentrate on the commissioner.

As I have said previously, and I again stress here, although some of the proposals in Amendments Nos. 66 and 72coincide with those of the Government, Amendment No. 72 goes beyond what is proposed by the Government. The noble Lord’s amendments would involve the creation of a parallel system of complaint, controlled and directed by a commissioner. The relationship between its decisions and those of the internal redress system is not specified, but I suspect that having two systems would inevitably be complicated. The amendment leaves it to the Secretary of State to work out the details of this parallel or alternative system.

However, these amendments would undermine the responsibility of the services for dealing with complaints and the parallel system they require would mean that some complaints would be dealt with under the internal system and some under the commissioner’s. This could result, for example, in a lack of consistency in dealing with complaints; in the application of time limits; and ultimately, a significant and worrying decline in the ability of the services effectively to look after their own people.

However, I share the view of the noble Lord, Lord Garden, expressed in the House on 12 October, that it will be crucial to ensure that the post of Service Complaints Commissioner is filled by an appropriate person. As such, we intend that this individual will be someone of the stature and experience appropriate to a post of this importance, as the noble Lord has said.

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We will consult the Children’s Commissioner in line with the recommendation of the House of Commons Defence Committee.

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