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Lord Henley: My Lords, perhaps I may briefly make clear the position of these Benches. The amendments put forward by my noble friend Lord Campbell of Alloway raise some very serious issues. The fact that his amendments have been supported by not one but two former chiefs of staff certainly underlines the seriousness with which the Armed Forces view these issues and how seriously they think they ought to be addressed.

These issues were addressed at an earlier stage. We have not gone into them in the detail applied to the amendments we discussed some time ago. Nor has there been the detailed discussion that will occur on later amendments. However, the issues were certainly raised on Report. At that stage the noble and gallant Lord, Lord Craig, voiced his concerns. He raised those concerns again today. He made clear that it was his understanding that the service chiefs had not been consulted on the drafting of the Bill and on its application to the Armed Forces.

Before I and my noble friends make any decision as to how we vote should my noble friend decide to press the amendment to a Division, we certainly want to listen very carefully to what the noble and learned Lord the Lord Chancellor has to say in response to the amendment. I am eager to hear in particular what he has to say about the suggestion that the service chiefs were not consulted and whether they are satisfied now that they will not be affected in the way that many of my noble friends seemed to feel might be the case. I shall listen with extreme care to what the noble and learned Lord has to say before I make any decision as to how I shall vote in the Division Lobbies.

The Lord Chancellor: My Lords, perhaps I may make this point in agreement with the noble Lord, Lord Goodhart. In his argument on Amendment No. 1, the noble Lord, Lord Campbell of Alloway, appeared to be saying that a domestic court in relation to Amendment No. 1 could refer a spiritual matter to the convention institutions in Strasbourg. Here he is repeating the same point--that a domestic court could refer a convention issue concerning the Armed Forces to Strasbourg. In fact, no domestic court or the Government can refer a convention matter to Strasbourg. Only a victim of a violation of the convention may do that.

The noble Lord, Lord Goodhart, is also correct in saying that the Armed Forces are already subject to the convention and to the Strasbourg court. In the Findlay case, to which he referred, the relevant statutory provisions governing courts martial, in particular as they concern the role of commanding officers in courts martial, were found to breach the convention. Accordingly, our predecessors had to bring forward

5 Feb 1998 : Column 767

primary legislation to deal with that. So there is nothing in particular that is new here. The only point is that under the Bill these matters can be dealt with through our domestic courts and will not have to await Strasbourg.

The key point, in the Government's view, is that the Armed Forces fall squarely within the category of an obvious public authority. If they are not that, it is difficult to say who is. What I mean is that it is scarcely conceivable that there could be a Bill of this kind which did not cover the Armed Forces. Secondly, the Government are plainly answerable in Strasbourg for the actions of the Armed Forces which engage the responsibility of the state. Thirdly, if the intention is to bring rights home so as to allow our own courts to adjudicate on convention issues, this seems to be a clear case. Therefore, we cannot see any justification for excluding the Armed Forces from the scope and reach of the Bill.

As I understand the argument, the noble Lord is content for the Armed Forces to remain subject to the convention rights but maintains that only the Strasbourg institutions and not our domestic courts should be able to adjudicate on those rights. I cannot see the merit in that proposition. The major purpose of the Bill is to allow individuals to enforce their convention rights in United Kingdom courts. It would clearly run counter to the purpose of the Bill if we were to deny our courts the ability to take account of convention rights where the Armed Forces are involved.

The actual effect of Amendments Nos. 9 and 10 is to prevent a declaration of incompatibility being made in respect of legislation concerned with specified military matters or in courts martial proceedings subject to judicial review or the Courts Martial Appeal Court. The effect of the amendments is to prevent the remedial order procedure being used to correct an incompatibility between the convention rights and Armed Forces legislation. That is contrary to the scheme of the Bill. The scheme of the Bill is that legislation should be interpreted in a way that is compatible with the convention rights so far as possible; that incompatible primary legislation should continue to operate; and that Parliament should be given an opportunity to amend the incompatibility by means of an expedited procedure.

But I say to the noble Lord, Lord Mayhew, that the Government are not obliged to go by way of the expedited procedure. It might be appropriate in such cases. It would depend upon the extent of the incompatibility, and the detailed consideration of legislation that might be required, whether it would be appropriate to go by way of remedial order, which it would be if, for example, the provision which infringed the convention was capable of easy remedy. There might be a greater argument for primary legislation if a fuller assessment of the relevant legislation was called for. But we do not see a case for exempting the Armed Forces from the terms of the Bill and we do not see a case for ruling out declarations of incompatibility being made in respect of legislation that affects the military.

In practice, convention issues as they might affect the Armed Forces would arise in the course of proceedings before military courts and would be resolved there.

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Appeals would go to the Courts Martial Appeal Court. For example, if a soldier attempted to proceed directly against the Army command under Clause 7(1)(a) of the Bill, the court adjudicating the point would be the one specified in rules made in accordance with Clause 7(2). I am mindful of what the noble Lord, Lord Henley, said. I would be perfectly happy to indicate that we would have to reflect on it, but we would consider designating military courts as the proper venue for the consideration of complaints on convention grounds by Armed Forces personnel against the command of the Armed Forces.

As regards the concerns expressed by the noble and gallant Lord, my right honourable friend the Secretary of State for Defence takes the view that the Bill raises no issues which are special to the Armed Forces. Along with his colleagues, he desires the Bill to proceed. However, the noble and gallant Lord will be aware that several of the convention articles permit restrictions to be placed on an individual's rights provided certain specified conditions are met. It may be that there will be situations in which special considerations will certainly have to apply to the Armed Forces because of the nature of their work. It would be a matter for the Armed Forces to look at each situation on its merits and ensure that any actions they took were consistent with the convention rights as they would be applied to the particular circumstances of the case.

I also remind your Lordships and the noble and gallant Lord that under Article 15 of the convention a state may, in time of war or other public emergency threatening the life of the nation, take measures derogating from its obligations under the convention to the extent required by the exigencies of the situation. I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces. I have given an indication about willingness to consider designating military courts as the appropriate forum for the consideration of complaints on convention grounds by Armed Forces personnel. On that basis I invite the noble Lord to withdraw his amendment.

Lord Renton: My Lords, before the noble and learned Lord sits down, will he deal with the conflict mentioned by my noble friend Lord Campbell of Alloway when the courts, no doubt acting properly, find that there is something in the convention which conflicts with a decision made within the Armed Forces, of which Her Majesty the Queen is the head, as my noble friend said? Would it not be better to avoid such a conflict rather than have to face up to a situation which has to be resolved?

The Lord Chancellor: My Lords, no. If an unlawful act is committed by the Armed Forces which is in breach of the convention, that is intended to be remediable under the Bill.

Lord Campbell of Alloway: My Lords, the noble Lord, Lord Renton, hit the nail right on the head. It is all very well to have to keep listening to the "scheme of the Bill" and what the noble Lord, Lord Goodhart, says about it and, with great respect, what the noble and learned Lord says about it. I am concerned with the maintenance of discipline in Her Majesty's Armed Forces. I am far more

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concerned with that than with the scheme of the Bill. I find no sympathy from the Woolsack nor understanding of the fundamental issue which is of great importance to this country. There has been no satisfactory assurance given. I seek the opinion of the House.

5.15 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 72; Not-Contents, 153.

Division No. 1

CONTENTS
Alexander of Tunis, E.
Annaly, L.
Ashbourne, L.
Belhaven and Stenton, L.
Beloff, L.
Blaker, L.
Blatch, B.
Boardman, L.
Caldecote, V.
Campbell of Alloway, L. [Teller.]
Carnegy of Lour, B.
Chesham, L.
Cockfield, L.
Colwyn, L.
Cox, B.
Craig of Radley, L.
Crickhowell, L.
Davidson, V.
Dixon-Smith, L.
Eden of Winton, L.
Ellenborough, L.
Gormanston, V.
Granard, E.
Halsbury, E.
Hambro, L.
Harmsworth, L.
Hemphill, L.
Holderness, L.
HolmPatrick, L.
Jakobovits, L.
Kinnoull, E.
Kitchener, E.
Leigh, L.
McConnell, L.
Macleod of Borve, B.
Malmesbury, E.
Marlesford, L.
Massereene and Ferrard, V.
Mayhew of Twysden, L.
Miller of Hendon, B.
Molyneaux of Killead, L.
Monson, L.
Murton of Lindisfarne, L.
Naseby, L.
Newall, L.
Nickson, L.
Norrie, L.
Northbourne, L.
O'Cathain, B.
Onslow of Woking, L.
Park of Monmouth, B.
Patten, L.
Pender, L.
Plummer of St. Marylebone, L.
Rawlinson of Ewell, L.
Renton, L.
Robertson of Oakridge, L.
Romney, E.
Rotherwick, L.
Rowallan, L.
Saltoun of Abernethy, Ly.
Shaw of Northstead, L.
Shrewsbury, E.
Simon of Glaisdale, L.
Soulsby of Swaffham Prior, L.
Strange, B.
Swansea, L.
Tebbit, L.
Vivian, L. [Teller.]
Waterford, M.
Westbury, L.
Wilcox, B.

NOT-CONTENTS
Ackner, L.
Acton, L.
Addington, L.
Alton of Liverpool, L.
Amos, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Avebury, L.
Bassam of Brighton, L.
Bath, M.
Beaumont of Whitley, L.
Berkeley, L.
Blackstone, B.
Borrie, L.
Bridge of Harwich, L.
Brooke of Alverthorpe, L.
Bruce of Donington, L.
Burlison, L.
Carlisle, E.
Carter, L. [Teller.]
Chandos, V.
Charteris of Amisfield, L.
Chorley, L.
Cledwyn of Penrhos, L.
Colville of Culross, V.
Currie of Marylebone, L.
Dahrendorf, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dholakia, L.
Diamond, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Eatwell, L.
Ezra, L.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Fitt, L.
Gallacher, L.
Gilbert, L.
Gladwin of Clee, L.
Goodhart, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grenfell, L.
Hamwee, B.
Hanworth, V.
Hardie, L.
Hardy of Wath, L.
Harris of Greenwich, L.
Haskel, L.
Hayman, B.
Healey, L.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Howell, L.
Howie of Troon, L.
Hoyle, L.
Hughes, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L. [Lord Chancellor.]
Jacobs, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jenkins of Putney, L.
Judd, L.
Kennedy of The Shaws, B.
Kirkwood, L.
Lester of Herne Hill, L.
Levy, L.
Linklater of Butterstone, B.
Lockwood, B.
Lovell-Davis, L.
Ludford, B.
McCarthy, L.
McIntosh of Haringey, L. [Teller.]
McNair, L.
McNally, L.
Maddock, B.
Mallalieu, B.
Mar and Kellie, E.
Merlyn-Rees, L.
Meston, L.
Methuen, L.
Milner of Leeds, L.
Mishcon, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Morris of Manchester, L.
Murray of Epping Forest, L.
Nelson, E.
Newby, L.
Nicholson of Winterbourne, B.
Nicol, B.
Orme, L.
Paul, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Richard, L. [Lord Privy Seal.]
Rochester, L.
Rodgers of Quarry Bank, L.
Rogers of Riverside, L.
Russell, E.
Sainsbury, L.
St. John of Bletso, L.
Sandberg, L.
Sandwich, E.
Serota, B.
Sewel, L.
Shore of Stepney, L.
Simon, V.
Smith of Clifton, L.
Stoddart of Swindon, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taverne, L.
Taylor of Gryfe, L.
Tenby, V.
Thomas of Macclesfield, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Thurso, V.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Walker of Doncaster, L.
Wallace of Saltaire, L.
Wedderburn of Charlton, L.
Whitty, L.
Wigoder, L.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

5 Feb 1998 : Column 770

5.25 p.m.

Clause 1 [The Convention and the First Protocol]:

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