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Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. I wonder whether he agrees with me that there is consistent English case law making quite clear that the English courts will not take jurisdiction over spiritual matters or the exercise of jurisdiction by religious courts, whether they are Christian, for example, or the office of the Beth Din in the case of the Jewish faith.
The Lord Chancellor: My Lords, I readily confirm that that is my understanding, too. Having offered those rather detailed reasons which I hope were to the convenience of your Lordships at this stage in our discussions, I invite the noble Lord to withdraw his amendment.
Lord Campbell of Alloway: My Lords, I thank all noble Lords who have taken part in the debate. I thank in particular the noble and learned Lord the Lord
Chancellor, who, with the assistance of the noble Lord, Lord Lester, has sought to give the House certain assurances. I do not know, any more than my noble friend Lord Renton, why his amendment, which relates to Clause 6 and exclusion, was grouped with this amendment. It is one of those mysteries which will perhaps never be resolved.With the greatest respect, I am not convinced by the assurances of the noble and learned Lord the Lord Chancellor. I remain of the opinion that this amendment could well serve a valid, moderate and workable purpose; indeed, it is the minimum requisite to achieve such a purpose.
However, I accept the sense of the House. I always try to do so. Looking at the matter realistically, there is no great or sufficient support for this amendment on the Floor of the House today.
My noble friend Lord Henley says that the Opposition which I support--it is not a political matter anyway, so I do not know why we should be bothered with it--prefers another amendment to my own. I suppose that the Opposition can do that; why it has to inform this House of the fact I do not quite know.
Amendment No. 6 raises a most peculiar problem. Although the Opposition may prefer the amendment tabled by the noble Baroness, Lady Young, there is a problem, a sort of gremlin in it. The amendment attempts to create a statutory defence in our domestic law in a Bill which does not incorporate the rights and obligations of the convention into our domestic law. Therefore there is quite a serious problem, although, as I say, my noble friend Lord Henley prefers to live with that problem.
In any event, I take the point. One does not want to have two Divisions. In the circumstances, expressing my gratitude to the right reverend Prelates who supported this amendment and to noble Lords for having heard the argument, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Campbell of Alloway moved Amendment No. 2:
Before Clause 1, insert the following new clause--
(". Section 4(2B) of this Act makes special provision for Her Majesty's armed forces.").
The noble Lord said: My Lords, this amendment is devoid of any party-political content as Her Majesty the Queen commands the Armed Forces. It is moved, albeit from these Back-Benches, under the aegis of your Lordships' All Party Defence Study Group. It is, as noble Lords may well think, a matter which ought to be capable of resolution by accommodation and consensus, by some categoric satisfactory assurances acceptable to all political parties. Whether such be the case or not remains to be seen.
In its original form this amendment was moved as Amendment No. 25 on Report, having been tabled again on 3rd December, supported by the right reverend Prelate the Bishop of Lichfield and the noble and gallant Lord, Lord Craig of Radley. Your Lordships gave leave
No account was taken of this matter when the Bill was drafted. Indeed, again, no account was taken until the right reverend Prelate the Bishop of Lichfield spoke in Committee. I referred to the approach to the convention as stated by Rolv Ryssdal when speaking to the amendment on religious bodies. Put quite simply,
Under this amendment the court retains a discretion to refer any question of an alleged breach of the convention to the commission or to the ECHR if so advised under extant procedures. But the discretion to make a declaration of incompatibility so as to trigger the fast-track approach for remedial action on a case-by-case basis is removed.
The Armed Forces should be excluded from the fast-track procedure as a special provision because of training and operational matters relating to discipline. It is not acceptable that at, say, Brentford County Court an application should be made that a member of the Armed Forces should not be sent to Bosnia as this would be in breach of Article 8 of the convention in constituting an infringement of his right to respect for his private and family life, even if, as is sadly the case, divorce in the services due to overstretch is rising at an alarming rate.
It is accepted that the Armed Forces are subject to the criminal and civil jurisdiction of our courts and to the jurisdiction of the Commission and the Court of Human Rights, an international body. It is accepted that due account of the convention must be had by the Government, the Armed Forces and such persons. However that may be, your Lordships may well think that it is neither necessary nor appropriate that in this context breaches of the convention on a case-by-case basis should be dealt with by our domestic courts and that declarations of incompatibility should not be granted. It is not the business of government or the judiciary to seek to construct 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 distinct and disparate provisions and system of maintaining good order and discipline. Would
If we had not won the war, there would not be a human rights convention. If we had not been disciplined, we would not have won the war. The discipline and conduct of our Armed Forces, according to our traditions, are near and dear to the heart of the noble Lord, Lord Gilbert, but the attitude of the Ministry of Defence is not known. It is the view of noble and gallant Lords, some of whom will no doubt speak today, that the Bill as it stands would affect many provisions of the services discipline Acts and undermine the authority of commanding officers as regards discipline, operational training and administrative matters and that there is a severe threat to the traditions of our military ethos. I beg to move.
Lord Craig of Radley: My Lords, I added my name to this amendment, as I did to the comparable amendment at Report stage. I asked at that time what the effect of the Bill would be on the Armed Forces Acts. I do not wish to repeat all that I said then, but I explained that I believed the importance of the Armed Forces Acts to be unquestioned. The authority of a commanding officer and the responsibility of those under command to obey lawful orders is fully underwritten by those Acts. I did not receive an assurance on that point. I also asked the noble and learned Lord the Lord Chancellor what the reaction of the Ministry of Defence, and in particular of the chiefs of staff, had been. He was unable to give me any more than an assurance in the following words:
My own inquiries lead me to believe--and I apologise to the House if I am wrong--that the impact of the Bill had not been brought to the attention of those within the Ministry of Defence who, like myself, would have great concern about an impact upon the command authority of individuals within the Armed Forces. I therefore believe that it would be of great assistance to the House to have a fuller understanding of the impact of the Bill upon the Armed Forces Acts. I do not question the value or importance of the Bill, but I remain extremely concerned that we are in danger of allowing it to undermine the essential ethos, military discipline and responsibility of commanding officers within our Armed Forces. On that basis, I believe it important that the amendment be accepted.
"the Convention is not intended to impose rigid, uniform solutions, but within limits to recognise the right of free societies to choose for themselves".
Among the 40 signatory states to the convention the structure of the armed forces in each is far from uniform. The United Kingdom is entitled to retain its own structure with, no doubt, certain changes from time to time to accommodate the "apple factor"--a by-product of overstretch.
"I am not aware that the chiefs of staff have made any representations to government for an exemption along the lines of this amendment".--[Official Report, 19/1/98; col. 1359.]
4.45 p.m.
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