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Lord Vivian: My Lords, I strongly support Amendments Nos. 2, 5, 9 and 10 in the name of my noble friend Lord Campbell of Alloway concerning the Armed Forces. I reiterate and strongly stress that these amendments in no way affect the human rights
conveyed through the Bill to service men and women, who could still submit a case to the European Court of Human Rights should they so wish. The amendments do not take away their human rights.What do the amendments do? They prevent those enlisted in the Armed Forces from using the fast-track procedure detailed in Clauses 10 to 12, which would result in a military offence bypassing the military discipline system. I believe that we are dealing here with a procedural matter. A disciplinary offence could be referred to a civil court within the United Kingdom and judged by people who have no knowledge of military conditions and the military way of life. That would clearly undermine the authority of a commanding officer. I am concerned that it would make large sections of the service discipline Acts invalid and unusable.
It is horrifying to think that, had those in the services been able to use this new system, some might have refused to fix bayonets at Tumbledown in the battle for the Falklands and refused to continue the attack against the enemy when the ammunition ran out. How horrifying to think that any soldier might refuse to go into a dangerous area of Belfast for fear of being shot at by a sniper and, more than likely, killed. How horrifying to think that servicemen might disobey an order to hold and defend a position at all costs against a forthcoming enemy attack. Similar cases can be made for the other two services. Examples can also be given in relation to equally important training and administrative matters within the Armed Forces.
If I were to give a lawful command, placing a serviceman in a position in which he is likely to lose his life, as in the examples I have just given, a case could easily be made that I have intentionally caused loss of life. As I understand the Bill in its present form, service men and women could trigger a case to be dealt with under the fast-track procedure detailed in Clauses 10 to 12 involving the civil courts, bypassing the military system and totally undermining the authority of a commanding officer. The ability to bypass military discipline could tempt some service people down this route, leading to much expensive litigation and the possibility of vast sums being paid in compensation.
Members of the Armed Forces work with great team spirit. It is that team spirit and not the individual that counts in service life. When servicemen make the supreme sacrifice, they do so for each other, for their unit and for their country. That entire way of life and military ethos are underpinned by the code of military discipline. Bypass that proven system of military discipline and ethos, and the high morale and efficiency so critical to the Armed Forces will be destroyed.
Parliament has recognised the special need for a military code of discipline for generations; hence the service discipline Acts. Why should we now legislate for a new system when the one we have works so well? Failure to carry the amendment will destroy all existing military ethos and morale and will lead to inefficiency and poorly trained Armed Forces. I ask the noble and learned Lord the Lord Chancellor to think again.
I believe that the overall security of the realm may be put at risk. I strongly urge your Lordships to support the amendment.
Lord Goodhart: My Lords, the quality of the Armed Forces of the United Kingdom is remarkably high. They may be the best forces in the world. Most of those who, like me, did national service in the years after the war emerged with considerable respect for the Armed Forces; indeed, I am still a member of the regimental association connected with the regiment in which I had the honour to serve.
I do not agree that forces discipline should be exempt from the operation of the Human Rights Bill. Indeed, the proposal in the amendment does not do that. It actually applies to only one limited aspect of the Bill; that is, the power to declare that a statute is incompatible with the European Convention on Human Rights. The amendment does not stop any member of the Armed Forces raising a convention right if that convention right is dependent on something like an executive order and it is not a question of incompatibility with any statute. To a large extent therefore the amendment will leave the members of the Armed Forces with the right to raise convention points in legal action.
The forces are not exempt from the European Convention on Human Rights. An extremely important decision in February 1997, in the Findlay case, held that the court martial procedure under the Army Act 1955 was in fundamental breach of Article 6 of the convention. The previous government, to their credit, recognised that that procedure was indefensible even before the court gave its decision. For that reason they introduced what was enacted as the Armed Forces Act to set up a new procedure which complies with the European Convention on Human Rights. That involves the intervention of the European Court at the request of a member or former member of the Armed Forces. The sky does not seem to have fallen in on military discipline as a result.
The jurisprudence of the European Court recognises the special position of the Armed Forces. For example, in the case of Engel v. The Netherlands, the court accepted that confinement to barracks--what some of us remember as the dreaded "jankers"--did not involve an infringement of the right to liberty under Article 5, though it would have done so in the case of a civilian. The argument here is the same as it is elsewhere. If the Armed Forces are already subject to the jurisdiction of the Strasbourg court, why not extend that jurisdiction to the courts of the United Kingdom? I must say once again that the noble Lord, Lord Campbell of Alloway, repeated his suggestion that the courts have a power to refer cases to the European Commission or the European Court of Human Rights; but no such power exists.
Easier access to convention jurisdiction may possibly lead to a small flurry of challenges to forces discipline procedure in the first few months in which the Human Rights Bill comes into force. But the courts are robust enough to reject those challenges if no serious point is involved. I do not believe that the Bill will do the slightest damage to the efficiency or morale of the forces and there is some danger that an exemption
would do such damage. After all, these days we have a volunteer Army. What will be the effect on recruitment if those joining the forces are told they will be deprived, so far as the British courts are concerned, of rights enjoyed by everyone else in this country, such as the right to a fair trial under Article 6? I therefore call on the House to oppose the amendment.
Lord Mayhew of Twysden: My Lords, I thank my noble friend for tabling this amendment. It is capable of securing an important safeguard for the management or the administration of our armed services. However, I should like to advance a slightly different argument in its support.
I agree with the noble Lord, Lord Goodhart, and my noble friend Lord Vivian that the Armed Forces are called upon to perform exceptional services. As we all know, they include on occasion being prepared to risk one's life. I believe therefore that they need to be regulated by exceptional legislation providing, in particular, for a unique disciplinary code and structure.
It is no less important that our armed services should always act within the law. As has been said, that applies already to the provisions of the convention and it is a duty which the Bill will now make explicit. Obedience to an order that is unlawful has never been a defence in our law and I am sure that it never will be. These arrangements are a prime illustration of what we mean by the rule of law. But we always need to remember that these arrangements and rules can expose servicemen to difficult questions of judgment and often to great danger.
It is easy for us in Parliament--and, if truth be told, rather satisfying--to intone about the rule of law. It is much more difficult and dangerous to uphold it in the course of one's duty when one is, for example, in support of a civil power on the streets of Northern Ireland. It follows that the Armed Forces disciplinary Acts need to be carefully and perceptively constructed; and so they are. They are the product of long experience and long evolution. Any change to them therefore needs to be the result of equally careful consultation and debate including, crucially, parliamentary debate. I believe that that should only be done by primary legislation, which I concede may need to be brought forward urgently in a specific case. It cannot suitably be done by a remedial ministerial order made under the fast track procedure in this Bill. That would be available if a court exercises a discretionary power to declare that a provision of primary or subordinate legislation is incompatible with a convention right. The deficiencies of the order-making procedure in this House and in the other place for this purpose are all too well known to noble Lords. There is no need for me to rehearse them.
I therefore applaud the thrust of the amendment. It is a purely procedural amendment, not a substantive one. It will still be open to the serviceman or woman to challenge in the courts the lawfulness in convention terms of disciplinary action taken against him or her of the kind the amendment deals with. The amendment does not put the Armed Forces above the law; it does not chip away at the obligations of the convention in their case; nor does it act at the expense of members
of the Armed Forces in terms of their rights under the convention. What the amendment does do is to remove what I believe to be the wholly inappropriate fast track procedure for making summary changes in the sensitive legislation by which the Armed Forces are at present properly regulated.5 p.m.
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