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Lord Simon of Glaisdale: My Lords, I am glad that the noble Lord, Lord Henley, has revived the question that I asked earlier. As he said, this is a most important Bill and one of which I am myself an enthusiastic supporter. It is quite intolerable that matters of importance on it should be discussed at this hour of the night. I also point out that we had the Rippon report on the Sittings of the House in which it was agreed that we should adjourn at reasonable hours. In a very short time

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there is a day scheduled for the Third Reading of the Bill which could well be used for the remainder of the Report stage.

Lord Carter: My Lords, I am not sure that it is altogether the fault of the Government side that we have made as little progress as we have on the Bill. We have to make some progress with the Bill. It is very important. I understand the interests of your Lordships. But I propose to continue the debate and to consult the usual channels at midnight.

Lord Henley: My Lords, the noble Lord said that it has not been the fault of the Government. I am not sure that that is strictly correct. Our Front Bench has not wasted any time, either at this stage or at earlier stages of the Bill. In fact, we have contributed a great deal to getting through the Bill--three days in Committee. The noble Lord himself will vouch for the fact that on that third day we made rapid progress. We are committed to giving the Government their Bill in due time. But we need time for an important Bill of this kind. As I said, some very important amendments are coming up and we cannot debate them at all hours of the night, particularly those of us who have been at this since three o' clock this afternoon. I do think that we could have a slightly more sympathetic response from the Chief Whip.

Lord Carter: My Lords, in the time we have spent discussing this point we could probably have dealt with an amendment. I propose to consult the usual channels at midnight.

Lord Campbell of Alloway had given notice of his intention to move Amendment No. 24:

Page 4, line 10, at end insert ("or
( ) the General Synod of the Church of England, church schools and religious bodies recognised as such by the Secretary of State, and any person exercising functions under the authority of any such institution.").

The noble Lord said: My Lords. I made it plain to your Lordships that this amendment differs from the other amendment. I wish to study with great care what has been said on the other amendment. It is an important matter. It is not a simple issue. I should like to return to this at Third Reading.

[Amendment No. 24 not moved.]

11.15 p.m.

Lord Campbell of Alloway moved Amendment No. 25:

Page 4, line 10, at end insert ("or
( ) Her Majesty's Armed Forces, or any person exercising functions under their authority.").

The noble Lord said: My Lords, the object of this amendment is to exclude,

    "Her Majesty's Armed Forces, or any person exercising functions under their authority",

from the fast track procedure of this Bill. The amendment has the strong support of the noble and gallant Lord, Lord Inge, who sought to put down his name but has written to me to say that he was unable to do so because there were other supporters.

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It is accepted that the Armed Forces are subject to the civil and criminal jurisidiction of our courts and to the jurisdiction of the commission and the European Court of Human Rights, an international body to which there is an individual right of access, subject to the exhaustion of our domestic remedies. It is accepted that due account of the convention must be had by the Government, the Armed Forces and such persons. It is also accepted that the judgment of the ECHR in McCann in 1996, which was the SAS action in Gibraltar, remains the cause of deep dismay.

However that may be, your Lordships may well think that it is neither necessary nor appropriate that in this context alleged breaches of convention on a case-by-case basis should be dealt with by our domestic courts and that declarations of incompatibility as regards Clause 6(3) and (5) should not be granted to trigger ministerial remedial action under Clauses 10 and 11, which is the fast track procedure. It is not the business of government or of the judiciary in this context, on a case-by-case basis, to seek to construct--and this is a similar point--a uniform code of conduct for the Armed Forces from all signatory states in apparent conformity with the convention.

And why not? As your Lordships know, there is no uniformity as regards terms of engagement, discipline, service and so forth, among the signatory states. Each state has its own disparate provisions and system of maintaining good order and discipline. It is not the object of the convention, as, I remind your Lordships even at this hour, the distinguished president Rolv Rysell said, to impose rigid, uniform solutions, but, within limits, to recognise the rights of free societies to choose for themselves.

Would it not be contrary to good order and effective discipline to afford a domestic forum in our courts to every barrack room lawyer or disgruntled or aggrieved serviceman in which to allege breaches of the convention? I think back to my days in the BEF. There was always someone grousing about something. It seems to me quite incongruous that one can keep really good, tight discipline with the system proposed by the fast track procedure.

In conclusion, I make a short point. If we had not won the war there would not be any human rights convention. If there had not been good discipline in the forces they would not have won the war. The discipline and conduct of our Armed Forces, according to our long traditions, is essential to our national security. I know that it is accepted by the noble Lord, Lord Gilbert, as our number one priority. I beg to move.

Lord Goodhart: My Lords, this amendment has been tabled by the noble Lord, Lord Campbell of Alloway, on the basis that it just keeps the Armed Forces out of the fast track. That is not exactly the effect of the amendment. If that is the intention it is not the effect. Subsection (1) of Clause 6 provides:

    "It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights".

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Subsection (3) goes on to define "public authority". The amendment will apply not only to the fast track legislation procedure in subsection (2) but the whole basic structure in subsection (1).

With all respect to the noble Lord, this amendment is astonishing. It would exempt the Armed Forces altogether from the jurisdiction of the English courts under the European Convention on Human Rights. The English courts know perfectly well--no doubt better than the European Court of Human Rights--the importance of discipline in the British Army and will apply the law sensibly and properly. British forces have an extremely good record on human rights. For example, in Bosnia, at great cost to themselves, British forces have preserved the human rights of the citizens of that country. But the experience of other countries demonstrates that armed forces can be, and frequently are, the most serious infringers of human rights. One has only to look, for example, at the situation in Argentina before the Falklands war. Therefore, armed forces above all need to be subject to the European Convention on Human Rights.

It is extraordinarily unlikely that the British Armed Forces will behave in this way, but the fact that it is extremely likely that they will not commit violations of human rights is no reason why they should be exempt from the jurisdiction of the English courts in that respect. There is nothing in the European Convention that is inconsistent with the maintenance of proper discipline in the Armed Forces. I believe that this amendment has no justification whatsoever.

Lord Craig of Radley: My Lords, I rise to support the amendment to which my name has been added in the Marshalled List. I support it because I believe that Her Majesty's Armed Forces should be excluded from the embrace of the widely-drawn concept of a public authority. I have studied the explanations given at Second Reading and in Committee about how a public authority will be identified. I accept that it is wisest to leave it to the courts to decide as cases come before them. I do not seek to challenge that. The Armed Forces are a public authority, but I believe that special considerations apply to service personnel. We need to judge these against the arguments for not excluding the Armed Forces as a public authority from this Bill--arguments which say that exceptions lead to problems and that individuals in the Army, Navy and Royal Air Force should have as much right to the protection of the convention as any other of Her Majesty's subjects.

But strong as these and similar arguments may be, they are not the only ones. Servicemen and women are subject to the Armed Forces Acts. There are offences of conduct prejudicial to good order and discipline, of disobeying a lawful command, and so on, which have no direct parallel in civilian life. These are enacted because they underpin and are vital to the operational effectiveness and discipline of the Armed Forces.

Without further elaboration, the conclusion is self evident. The Armed Forces may be, and often are, treated differently by legislation. Even though we have all-volunteer services, whose members are made aware of the particular constraints which will apply to them

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for as long as they remain in the forces, there have been moves to treat service personnel more in line with contemporary civilian practice rather than leave them without the ambit of civilian law. It is not the time to debate whether that trend has gone far enough, too far, or been altogether in the best interests of the country and the services themselves.

Several experienced voices have expressed concern about some of the changes to court martial procedures, the high level of litigation which now persists throughout the Armed Forces, and about other challenges to the responsibility and authority of command. An inference has begun to emerge that civilian-style management rather than military-style leadership is what the services should adopt, particularly in peacetime.

Of itself, each individual change may not be significant or even damaging, but the cumulative effect of a whole series of them is a different matter. The old adage of straws on a camel's back springs to mind. There is unease about the progressive impact of so much upheaval at the very heart of service discipline, ethos and culture, even though effort is made to work with the grain of the changes. It is against that background that I am seriously worried about further uncertainties which could arise in the Armed Forces if they are not excluded from the gamut of public authorities to which the Bill will apply.

How tempting, as the noble Lord, Lord Campbell of Alloway, said, will it be for the occasional crackpot, barrack room lawyer, or hobbyhorse rider, to instigate proceedings once they can be brought in a local court. Would there be a yet greater increase in litigation tending, wittingly or unwittingly, to undermine the cohesion and normal command structure of the Armed Forces--structures which are the essence of military effectiveness? Is there any likelihood that incompatibility might arise between the Armed Forces Act and the convention? Is it not conceivable that convention rights may be added to one day? How should convention matters be treated if our forces are at war or on operations overseas short of war? How confident can we be that different British courts will adopt a consistency of approach when dealing with any service case? A difference between the services, on one matter or another, could cause great difficulty.

Even if every one of those concerns could be satisfied--at this late hour my list is far from complete--they all outweigh the arguments for not making an exception for the Armed Forces. Without an assurance that not excluding the Armed Forces as a public authority will not be detrimental to their effectiveness, we embark upon a risky course. As the noble Baroness, Lady Young, said, this is not an academic exercise.

Will the noble and learned Lord the Lord Chancellor advise whether the MoD and the chiefs of staff have been consulted? I hope that they have.

I urge the Government to accept the amendment. If it is adopted, service men and women would not, of course, lose their right to apply to the Strasbourg court. There are those who argue that that is too slow and

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subject to delay. Perhaps we could be told what effect the Bill will have on such delay. If most of the cases are dealt with in the UK, then surely the load on Strasbourg will be greatly relieved. I support the amendment.

11.30 p.m.

Viscount Colville of Culross: My Lords, I respect what my noble and gallant friend said about the special position of the Armed Forces. However, I have had two telling experiences in the field in relation to human rights and the security forces. In the early 1980s I was sent as special rapporteur to Guatemala in order to report on the extent to which the population and the security forces were living in accordance with the United Nations' human rights rules. There is no doubt that in the extremely unpleasant situation which then existed in that country excesses were being committed by the security forces against the civilian population, which was not being controlled internally by the armed forces. I made reports which were accepted by the Government. We did everything we could by persuasion to improve matters.

I then moved to a similar inquiry in Northern Ireland. There was also concern that the way in which the security forces and the population interacted might lead to human rights abuses. It is perhaps a tribute to the Armed Forces, rightly mentioned by my noble and gallant friend, that even at the height of all the troubles the only derogation and reservation that this country had to make to the European Convention is set out in Schedule 2 to the Bill, and it is concerned only with the length of detention during interrogations. None of the other provisions of the emergency provisions legislation in Northern Ireland fell into the category that required a reservation. Indeed, noble Lords who have read my reports may have seen that for a period of seven years I was able to report to the House that the security forces had behaved with remarkable control and regard to the rules, and that they were ever ready to improve their performance in this respect.

That does not indicate a situation in which the Armed Forces in this country, as regards their human rights record, would have anything to be afraid of if they were subject to the oversight of the domestic courts in Great Britain. As regards Armed Forces personnel, I am sure that the noble and gallant Lord is not opposed to the right to a fair trial, for instance, at a court martial or to due process. I see that he agrees with me that he is not.

Is it not better that we should judge our own cases and allow members of the Armed Forces and those who have any complaint against them to go, first, to the British courts to see whether they can be vindicated rather than being the only people excluded as public authorities and the only people who have to go to Strasbourg or against whom the complainants would have to take the case to Strasbourg? I do not consider that the reputation, history and record of the Armed Forces that I have seen in operation in this country, let

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alone in Bosnia, requires any such exemption or exception and it does them less than justice to suggest that they need any such protection.

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