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Lord Montagu of Beaulieu: My Lords, I thank the noble Lord for that Answer. Can he tell us what advice or consultation took place with other countries which have such roads, particularly with regard to their operation, and does he agree that the more commuters car-share the better?

Lord Whitty: My Lords, I absolutely agree. Clearly, in the long run, a reduction in the number of car journeys is appropriate, particularly at peak commuter times. It is noticeable, for example, that at the moment on the way into London approximately 80 per cent of car travel is made by single occupants. That matter must be addressed, and a policy of education and persuasion must be adopted to get people to change their habits.

Lord Randall of St Budeaux: My Lords, with regard to congestion, does the Minister agree that, in aggregate terms, the bus lanes are not strategically very significant and that we should be reducing the number of car journeys in this country, first, by genuinely understanding the needs of the public and, secondly, by recognising that 68 per cent of car journeys are terribly short? However, does my noble friend also agree that the suggestion of the noble Lord, Lord Montagu, of encouraging car-sharing is rather a good one?

Lord Whitty: Yes, my Lords, I believe I have indicated that I consider it to be a good suggestion and one which individuals and employers should encourage. The bus lanes on motorways and trunk roads may be a relatively small feature of our transport system. However, bus lanes within urban areas have proved most effective and have, for example, improved the average journey time of buses in London by 29 per cent. Those journey times could be significantly further improved if there were no obstructions. I believe that, certainly in the urban environment, bus lanes have proved their worth.

Lord Brabazon of Tara: My Lords, can the Minister confirm a report in The Times today that, rather than reducing traffic or, indeed, holding traffic at present levels, Ministers will concede today that traffic levels will rise by more than a quarter over the next decade? If that is true, would it not be better--I think particularly of the M4 bus lane--to scrap bus lanes altogether because all that motorists see on the M4 bus lane are tourist coaches, taxis and the occasional Government Minister?

Lord Whitty: My Lords, I am not sure whether I have recently passed a copy of a leaflet to the noble

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Lord, Lord Brabazon, which proves through independent research that at peak times travel times for car drivers on the M4 have improved significantly. There are always a number of taxis on that road, most of which are full of bona fide travellers and not Government Ministers, who, of course, are bona fide travellers in a different sense!

So far as concerns the figures which will be released today by my noble friend Lord Macdonald, the base line figures show an increase in traffic in most areas. However, the various combinations of government policy, applied effectively, would reduce significantly levels of congestion and pollution--the most important issue--rather than traffic volume. That is particularly so in urban areas and to a significant degree on motorways, where traffic is likely to increase most. I suggest that the noble Lord reads that document in detail before he comments further.

Lord Bradshaw: My Lords, will the Minister, in association with his colleagues in the Home Office, take steps to ensure that all police forces in the country co-operate with local authorities in using camera technology to enforce discipline in bus lanes, wherever those bus lanes are?

Lord Whitty: Yes, my Lords. One of the issues to be addressed in the better funding regime we are piloting in relation to speed cameras is the enforcement of parking and lane restrictions. As I have indicated, that will help to improve traffic flow, particularly in congested urban areas. More generally, police forces and chief constables will be following advice to give greater attention to road safety matters including the congestion of bus lanes.

Lord Rotherwick: My Lords, will greater consideration be given to allowing powered two-wheelers, which are both economic and environmentally friendly, further use of bus lanes? As the majority of accidents to these vulnerable, powered two-wheelers are caused by other people, does he think that in heavily congested areas bus lanes would be by far the best place for them?

Lord Whitty: My Lords, local experiments have been carried out where powered two-wheeler motor cycles have been allowed to use bus lanes. The results are not absolutely clear. Nevertheless, I recognise that in certain circumstances, powered two-wheelers can make a contribution to reducing congestion in urban areas. We would wish an integrated transport policy to take full cognisance of that fact.

Lord Elton: My Lords, as the Minister has broadened his answers to include digital cameras, can he confirm reports that the cost of installing them will be met by a substantial increase in parking fines, possibly of 50 per cent?

Lord Whitty: No, my Lords. Perhaps the media and possibly the noble Lord, Lord Elton, are confusing two separate stories. The funding of such cameras and

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associated road safety improvements is, indeed, being put on a better and more hypothecated basis. However, the increase in the fixed penalty charge recently indicated by the Home Office relates to a general upgrading of fixed penalties. The previous figure had remained the same for over 10 years. Therefore, an increase was well overdue.

Lord Mackay of Ardbrecknish: My Lords, can the Minister explain how the Government's policy of reducing car use, or at least stabilising it in future, squares with the policy, which I understand that the DTI wants to pursue, of relaxing almost completely the planning rules on out-of-town "mega" shopping areas?

Lord Whitty: My Lords, again, I believe that the noble Lord is reading too much into newspaper reports. There has been no change in the planning system as regards out-of-town shopping areas. As regards the general approach to car use, there is a huge underlying growth in traffic, as has been discussed, and it is a case of restraining such traffic. The real issue for motorists and society as a whole is to restrict congestion and pollution. We believe that the measures we are taking will achieve those objectives.

Armed Forces Discipline Bill [H.L.]

3.4 p.m.

Report received.

Lord Campbell of Alloway moved Amendment No. 1:

    Before Clause 1, insert the following new clause--

("Armed Forces (Human Rights) Court

.--(1) An Armed Forces (Human Rights) Court designated by rules in accordance with section 7 of the Human Rights Act 1998 shall be established to adjudicate on questions relating to the application of the European Convention on Human Rights to the provisions of the Service Discipline Acts raised on appeal from the decisions of Courts Martial or the Courts Martial Appeal Court.
(2) An appeal may only proceed with leave of the Court granted on the grounds that it is arguable that the decision was in breach of Convention as represented in the Notice of Appeal.
(3) The Court having heard the appeal may either affirm or set aside the decision (or remit the case for further consideration), and make such order as to costs as may be deemed to be just and appropriate.
(4) New evidence may not be adduced at the hearing (whether oral or on affidavit) unless in the opinion of the Court the demands of justice so require.
(5) The Court shall be convened by the Secretary of State as and when it is expedient in his opinion to attend to business.
(6) The composition of the Court shall consist of 2 or 4 members of the Armed Forces appointed by the Secretary of State sitting with a senior member of the judiciary as President appointed by the Lord Chancellor.
(7) Arrangements to give effect to subsection (6) are to be made in consultation between the Lord Chancellor and the Secretary of State.

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(8) The question arising for determination of the Court under the provisions of this Act may not be raised on an application for judicial review unless leave of the Court was refused by the Court.
(9) In this section "the Service Discipline Acts" means the Army Act 1955, the Air Force Act 1955, and the Naval Discipline Act 1957.").

The noble Lord said: My Lords, Amendment No. 1 proposes the setting up of a designated military appellate court solely concerned with the determination of convention issues arising in the course of the disciplinary process under the service discipline Acts on appeal from courts martial or courts martial appeals court in order to ensure compatibility with the convention.

The amendment is drafted on the assumption that Clause 11 and Clauses 14 to 25 do not stand part at Third Reading. If they were to stand part, subsection (1) of the amendment could be easily redrafted to include the summary appeals court. Consequential amendments to the Bill would be of no material significance.

The fundamental question arising for your Lordships' consideration is whether such convention issues should be resolved by a military court with relevant specialist expertise of the highest order or as part and parcel of the general appellate jurisdiction as proposed by the Government.

The strength of the case for the amendment could well be fortified by other questions arising which interact, irrespective of whether a summary appeals court were to be set up, as to which Clause 11 holds the key. The following questions arise. Could the service discipline Acts, as such, be struck down as incompatible with Articles 5 or 6 of the convention? Is the advice tendered by government to such effect as justifying this Bill as requisite to comply with the convention well founded? As no specific breach of any article of the convention under the extant disciplinary process has been asserted by government and none has been identified, is it either profitable or indeed possible to anticipate compatibility as proposed by the Bill?

Is it not appropriate to seek to amend the service discipline Acts to deal with identified putative breaches as proposed in Amendments Nos. 8 to 14? Is the reason given in the MoD letter received by me yesterday for the Government's change of mind not to set up such a court as is proposed by the amendment, that there would be insufficient calls on such a court to merit its establishment, well conceived? Does the Government's assertion that the summary appeal court and the courts martial appeal court should deal with convention issues as they arise afford a satisfactory means of resolution? Lastly, is Clause 11, which triggers the setting up of the summary appeals court, workable in practice, in particular on active service on armed operations short of war? Would it inhibit the maintenance of good order and discipline or is it requisite under the extant regime where the commanding officer informs the accused that the charge has been proven and there is a right to elect trial by court martial? That is a procedure which no one in the services to whom I have spoken considers to be unfair or discriminatory in any way. Such are the broad parameters of this debate.

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As to the justification for setting up an armed forces (human rights) court, as proposed by the amendment, the main objection in the MoD letter received yesterday is met. This court would only be convened ad hoc; "as and when" the occasion arises; it would be wholly cost-effective. The court would be constituted by the Lord Chancellor and the Secretary of State in consultation, the appointment of a senior member of the judiciary having relevant expertise of the highest order to preside, sitting with two or four duly appointed members of the Armed Forces.

As there is no binding system of judicial precedent and as the articles of the convention are to be interpreted with flexibility on a case-by-case basis, the form of judicial resolution proposed by Amendment No. 1 is surely to be preferred. Would either a commanding officer or the summary appeal court, as constituted under Clause 17, have the requisite expertise to determine compatibility? Interpretation of the articles in the light of a mass of evolving jurisprudence assuredly warrants the attention of a senior member of the judiciary with the relevant knowledge and expertise, as proposed by subsection (6) of the amendment.

The court as constituted would afford the most appropriate and effective forum for the determination of these convention issues. Convention rights are to be acknowledged and applied at all stages of the disciplinary process. But before resort may be had to the Commission or the ECHR, domestic procedures must be exhausted. Subsection (8) preserves the supervisory jurisdiction of the High Court only if leave to appeal was refused under subsection (2) (the sifting mechanism).

Under the extant regime there is the election of trial by court martial (if the case is proven) from which an appeal on a convention issue would lie to the court proposed by Amendment No. 1. Under the Bill, as proposed, the supervisory jurisdiction of the High Court could be invoked at any stage of the disciplinary process.

Amendment No. 1 derives originally from a proposal of the noble and learned Lord the Lord Chancellor at Third Reading of the Human Rights Bill when opposing my amendment to remove the Armed Forces from the fast-track procedure as inhibiting the due discharge of the summary disciplinary process to maintain good order and discipline. The noble and learned Lord took the point and acknowledged that such process--the disciplinary process--bore scant kinship with the exercise of summary jurisdiction in our civil or criminal courts. He proposed that appeals on convention issues would lie to the courts martial appeal court and be resolved there.

In a letter addressed to me dated 10th March from the noble Lord, Lord Gilbert, at the MoD, reference was made to a proposal for a designated military court to determine issues solely relating to convention rights, such as is proposed by this amendment. By courtesy of the noble Baroness, Lady Symons of Vernham Dean, copies of all relevant correspondence with the MoD

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have been made available in the Library of your Lordships' House, and the House is grateful. The letter from the noble Lord, Lord Gilbert, ended,

    "Such a Court as you mentioned would be designated by rules in accordance with clause 7 of the Human Rights Bill; the rule would be agreed in the period between the Bill receiving assent and its coming into force. I do not think you need to worry therefore about this option being foreclosed if we do not take an immediate view on this proposal. We have enough time to reach a fully considered decision".

Accepting that assurance, I was wholly content and did not worry until I saw this Bill. The position as stated in the letter of 10th March was that the proposal of the designated military court, for which I am contending, was accepted and should not be foreclosed upon; but that rules as to implementation of that proposal were under consideration. It is not known why that proposal should have been rejected by another letter from the noble Lord, Lord Gilbert, to the noble and gallant Lord, Lord Craig of Radley, on 9th June in favour of referring convention issues arising in the disciplinary process to the civil courts for determination. That letter is not so readily intelligible.

It is not known why the proposals in that letter should have been rejected. Perhaps--one does not know--some ministerial task force has been at work. If so, your Lordships may wish to examine its instructions and its findings. Perhaps as a result of a series of internal departmental consultations (which included the MoD, the Home Office, the Lord Chancellor's Department and the Foreign and Commonwealth Office) the Government changed direction more than once, became disorientated and eventually lost their way, not only on instructions to prepare for this Bill, but also on the advice tendered to the Chiefs of Staff and the noble and gallant Lords who took part in the debate on the Bill.

The service discipline Acts apply in a variety of circumstances--in times of peace, in times of war, on armed operations, and on active service short of war, on which now around half of our Armed Forces are engaged. As drafted, Articles 5 and 6 of the convention do not expressly apply to the disciplinary process of the Armed Forces. The House was informed on a previous occasion by my noble friend Lord Renton--who is present and who was involved in the early stages with setting up the constitution for the court--that, as far as he remembers, there was no intention that this Bill should apply to the Armed Forces. Indeed, as your Lordships know, France opted out without any ado.

As regards adopting the continental approach to interpretation, if the ECHR were to decide that Articles 5 and 6, as such, applied to the disciplinary process, the text would suffer very substantial erosion and limitation upon the rights and obligations conferred on civilians. A flexible approach should be adopted. On the facts and circumstances of any particular case, the doctrine of "proportionality" would be applied, in particular on active service short of war. This convention does not require any signatory state to enact legislation, such as proposed by this Bill, which would inhibit the maintenance of good order and discipline in its armed forces. Most signatory states possess armed forces with disparate disciplinary

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processes. Amendment No. 16A, which is tabled in the name of my noble friend Lord Renton, is well conceived.

Compliance with Articles 5 and 6 only requires that the disciplinary process should be fair and conducted under fair procedures without discrimination. No one can foresee or pre-empt the range of circumstances in which these articles could apply as regards compatibility of a disciplinary process with the convention. The facts and circumstances of any particular case mean that a collateral convention issue could well arise, such as, for example, under Article 8, especially in peacetime circumstances.

Assuredly the convention does not require amendment to the service discipline Acts or the setting up of a summary appeal court, as proposed by the Bill. It is wholly implicit that convention rights and obligations imposed on civilians should suffer substantial erosion and limitation. The extent of such limitation has not, as yet, been examined by the Commission or the Court. The Court would not strike down the service discipline Acts as such and the means of seeking compatibility, as proposed by this amendment, is commended to your Lordships. I beg to move and, in doing so, I apologise to the House for the time that I have taken.

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