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We envisage that appointment will take place through public advertisement and a fair and open competition, and that the normal principles of the public appointments process will apply. We will consult further with any other persons whom we think can usefully contribute. We intend that the selection panel will include an external, independent element, and we are exploring the possibilities, including the opportunity for the selection panel to be chaired by a senior Civil Service commissioner. I remain convinced that the appointment should be made by the Secretary of State, as is the norm in comparable cases, and we see no reason to be different with this appointment.

I also agree that the commissioner should be adequately resourced in order to give effect to the role. This will need to be kept under review in relation to the commissioner’s workload as the role develops. As an individual officeholder, the commissioner will have the legal powers necessary to appoint staff. The commissioner’s annual report will provide the commissioner with the opportunity to raise any concerns about resources and the ability adequately and effectively to carry out the role on that basis. I most firmly believe that the existing system will work fairly and efficiently, and that it will maintain the balance between the service role and the appropriate degree of independence in responding to complaints. I therefore ask the noble Lord to withdraw the amendment.

Lord Garden: My Lords, I am grateful to the Minister for his response. I now find myself somewhat confused about what this new post will do, which is part of the problem. There seems to be a reluctance to define the post in any great detail. The Minister has raised the issue of the independent member of the service complaints panel, yet when we discussed that a moment ago, that was something that would be invoked only when the Secretary of State saw fit. On these Benches there is a real concern that we may find that all the recommendations of Nicholas Blake after Deepcut fall between two systems, neither of which has been fully implemented.

I turn to the suggestion of the noble Lord, Lord Astor of Hever, that Clause 366 says everything necessary—I think he was indicating that. In that case, we differ because it is a very sparse clause and just says that the Service Complaints Commissioner exists.

I take seriously the Minister’s concerns about particular aspects of the schedule that we are offering in Amendment No. 72. I shall reconsider that, but we have not finished the debate on whether we have a clear view through the Bill on what the Service Complaints Commissioner will be able to do and whether that will meet the requirements of Blake. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.



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Clause 339 [Reports by Commissioner on system for dealing with service complaints etc]:

[Amendment No. 67 not moved.]

Lord Garden moved Amendment No. 68:

The noble Lord said: My Lords, we take very seriously the issue in the amendment of whether we are meeting the responsibilities that are necessary for the under-18s. That is not just because it was such a major feature of the Deepcut inquiry, but also because of our international obligations. If the business programme had allowed us time to debate the Bill yesterday, I thought that today we would come to this amendment when the House was fuller than it is now. I want a proper debate on this matter. Given the way in which the business has been handled, I can probably save considerable time this evening, if the Minister agrees that we return to this at Third Reading. It is an important fundamental principle about how under 18s are handled as members of the Armed Forces. I beg to move.

Earl Attlee: My Lords, I am not clear whether we are to debate this amendment or not.

Lord Garden: My Lords, under pressure from various sides, in view of the time, I was attempting—

Lord Drayson: My Lords, I can help the House. I am happy to debate this matter at Third Reading.

Lord Garden: My Lords, I am most grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Garden moved Amendment No. 69:

The noble Lord said: My Lords, Amendment No. 69 covers another important issue, so I would like to take a little time to speak to it. As your Lordships will recall, it is a variation on the issue of the responsibilities of the commanding officer as regards worrying about suspicious movements through his airfield. Your Lordships will have seen that the vice-president of the United States last week appeared to endorse the practice of interrogation using water-boarding as a “no-brainer”, to quote him. The evidence since we last discussed

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extraordinary rendition has been growing constantly. The new book by Stephen Grey, Ghost Plane, was featured in the Guardian of 26 October. We have tried to get the Government to respond to these concerns in different ways, with amendments to the Civil Aviation Bill and the Police and Justice Bill.

8 pm

I now have a much more limited aim: to ensure that military personnel are not implicated in this nightmare activity of extraordinary rendition. The debate we had in Committee was extraordinarily useful. The Government took their usual position that there is no problem because it is all covered by international treaties already. The Minister gave us reassurances that the military are not really at risk because all these flights are covered by diplomatic clearances; the commanding officer is thus absolved of responsibility.

I was, however, less comforted once I reread the views of the noble Lord, Lord Kingsland—I am pleased to see him in his place—whose knowledge of the law much exceeds mine:

My amendment is a very mild one in some ways, to ensure that we do not end up in that situation. In Committee, the Minister was obviously less certain about the commanding officers’ situation, as, one must assume, the commanding officers will be. The amendment permits the Defence Council to help commanding officers by issuing appropriate regulations, and reminds them of their legal responsibility. I beg to move.

Baroness D'Souza: My Lords, my name is on the amendment, so it will come as no surprise to your Lordships that I support it. It comes in a slightly different form from its previous incarnations, but the purpose is very much the same: to ensure that there is some rule, regulation or standardised procedure whereby the use of UK aerodromes and airspace facilities is prevented, in any shape or form, from being involved in the unlawful practice of rendition.

Lord Kingsland: My Lords, I also lend our support to the amendment of the noble Lord, Lord Garden. As he indicated, we had a long debate about this matter in Committee, and he has reformulated the amendment to accurately reflect the international law on torture. It seems, admirably, to summarise the current legal situation, and I congratulate him on bringing it forward.

Earl Attlee: My Lords, I support the thrust of these amendments. For myself, I would be happier if the provision started, “A person subject to military law commits an offence if”, but I am grateful for the advice of my noble friend Lord Kingsland that it is a good amendment.



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Members of our Armed Forces should not have anything to do with extraordinary rendition. As the noble Baroness, Lady D’Souza, said, they should have nothing to do with it “in any shape or form”.

Lord Drayson: My Lords, the amendment once again raises issues such as extraordinary rendition, as well as international obligations. In the context of the Bill and the debate in Committee, however, the concern relates particularly to the responsibilities of commanding officers.

I do not intend to add to what my noble friend Lord Triesman said on extraordinary rendition in general in the debate on 18 July. Nor do I wish to add to what was said more recently, on 18 October, by my noble friend Lady Scotland. She made it clear, in the context of the Police and Criminal Justice Bill, that the Government are more than satisfied that the police already have sufficient legal powers. They are able to react to any intelligence suggesting that any offence under either UK domestic law or our international obligations is being committed when foreign aircraft transit through our jurisdiction, including our military airfields.

I am afraid that Amendment No. 69 does not add anything to the law as it stands. As I have said, there are already sufficient legal powers to react to any intelligence that an offence is being committed. Any regulations that might be made under the proposed clause would not add to those powers. Propose subsection (2) of the amendment, again, adds nothing. Of course commanding officers, like anyone else, must not become parties to crime. We do not consider that there are any other international obligations which this clause could be referring to.

I hope that what I have said adds to the debate and reassures noble Lords that this amendment is neither necessary nor desirable. There is already sufficient provision in domestic law to cover their concerns. I hope that, having raised the matter once more, the noble Lord feels able to withdraw the amendment.

Lord Garden: My Lords, I am grateful to the Minister. We at last seem to be getting towards a consensus on a way forward on all Benches apart from those of the Government. The noble Earl, Lord Attlee, gave me a useful thought on how we might modify the amendment a little to bring it back when, I think, we will find the House will support it. When I have had a chance to look at that, I shall come back at Third Reading. For now, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 70:



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The noble Lord said: My Lords, I simply ask the Minister: are records kept of every person who is evacuated from overseas operational theatres as a result of injury or serious illness? If not, why not? I beg to move.

Earl Attlee: My Lords, I am grateful for the noble Lord’s flattery in tabling an amendment I tabled in Committee.

Lord Astor of Hever: My Lords, I also support this amendment, which, as my noble friend Lord Attlee said, he moved in Committee. It is absolutely right that records should be kept of any servicemen evacuated from operations as a result of injury or serious illness. The perceived lack of information in this area, whether justified or not, is not helpful either to the families of service men or women, or to public opinion. The argument that records are being collected anyway is not, in my view, strong enough to keep this provision out of the Bill.

Lord Drayson: My Lords, as I said in Committee, I recognise absolutely the deep importance of properly recording casualty figures. I also said that records are made and kept of all those who are transported out of theatre for medical reasons. I have since provided further information to the noble Earl on the defence medical information capability programme.

For the wider benefit of noble Lords today, I inform them that this programme will contain reporting tools enabling the Defence Medical Services to compile and analyse information about the progress of service personnel receiving treatment following injury or illness on operations. It will also identify the types of injury and illness experienced during an operation. This new system is due to enter service progressively from next year and it will be available to deploy on operations from 2008. Given that we already collect and communicate the data on casualty figures and are doing so much more to improve casualty reporting, I ask the noble Earl to withdraw his amendment.

Lord Thomas of Gresford: My Lords, it is, in fact, in my name, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 364 [Director of Service Prosecutions]:

Lord Inge moved Amendment No. 71:

The noble and gallant Lord said: My Lords, throughout the passage of this important Bill, great emphasis has rightly been placed on the important part played by the commanding officer and the chain of command in the administration of the military justice system. In saying that, I am thinking particularly of the great

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importance of those involved understanding the demands of operational service. This is why this amendment sought to ensure that the Director of Service Prosecutions had military experience. Certainly I believe that the chiefs of staff must be consulted on the appointment of the Director of Service Prosecutions.

Like many other noble Lords, I am particularly grateful for the way in which the Minister has kept us involved during the progress of the Bill. Therefore, on reflection, I have accepted that there may be occasions when there is not a suitable service lawyer to fill the appointment of the Director of Service Prosecutions. I obviously hope that this will be the case only on rare occasions. However, I accept the argument that it would be wrong to create a straitjacket by placing a statutory requirement in the Bill. If such a situation arose—when there was no suitable candidate with military experience—I hope that it would be possible by regulation to ensure that the Director of Service Prosecutions designate undertook an appropriate induction course. It is essential that servicemen and servicewomen have confidence that the Director of Service Prosecutions understands the conditions of operational service. I beg to move.

Lord Boyce: My Lords, I support the amendment moved by my noble and gallant friend Lord Inge. It is important that the confidence of our Armed Forces is sustained in the Director of Service Prosecutions, the best way being by him having appropriate military experience. If there is an exceptional situation where he does not have such experience, he should be given the opportunity to gain some before he takes up his post.

Lord Astor of Hever: My Lords, my name is also on this amendment. The background of the Director of Service Prosecutions remains a critical issue to those in the services. I would agree with the noble and gallant Lord, Lord Inge, and say how helpful the Minister has been. I hope that he will consider the suggestion in the noble and gallant Lord’s amendment. I support the idea of an induction course in those cases where a director with uniformed experience cannot be found.

Lord Drayson: My Lords, I recognise the strength of feeling on this important matter. As noble Lords and noble and gallant Lords have said, I have looked at it again following our debate in Committee to see whether it would be helpful and appropriate to amend the Bill. I have especially taken on board the views of both current and former service chiefs, who have

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considered this matter very carefully indeed—rightly so. They have assured me that they are content with the Bill as it stands and with the proposals that I outlined to your Lordships for the selection process. They welcomed the consultation that there will be about the job specification, and the terms and conditions for the post, and the involvement of a senior serving officer in the selection process. I think we agreed on two things: that the director should have appropriate service experience; and that the recruitment process should be sufficiently robust to ensure that the person appointed will be an outstanding individual who will enjoy the confidence of the services while being entirely independent from them.

By “service experience”, I mean an understanding of service life and operations in each of the services and of the needs and the working of a service system of justice and discipline. It is possible that there will be an outstanding candidate for this important post who does not have previous uniformed experience or, indeed, whose service might have been some years before. In both cases it would be particularly important for them to undertake an appropriate induction period before taking up the appointment. Similarly, where the director to be appointed is from one of the services, he or she might also need a period to develop a deeper understanding of how the other two services operate. We recognise that such an induction process needs to be intensive and of a sufficient duration in order for the individual to develop a detailed understanding of life across all three services. As I have already said, it is essential that the director has a knowledge of how each of the services operates and of the needs and the working of the service system of justice and discipline. On the basis of these reassurances, I hope that the noble and gallant Lord feels able to withdraw his amendment.

Lord Inge: My Lords, I thank the Minister for that encouraging reply, particularly what he said about an induction course. I beg leave to withdraw the amendment.


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