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Lord Carver: My Lords, in explaining his amendment the noble Lord, Lord Campbell of Alloway, mentioned that he is assuming that Clauses 11 and 14 to 25 will not form part of the Bill. He also mentioned the question that was raised in Committee and on Second Reading about the applicability of the Bill in terms of active service. Your Lordships will remember that in Committee I proposed that Clauses 11 and 14 to 25 should not stand part of the Bill. Therefore, it is appropriate that I should explain at this stage why I have not tabled any such amendment on Report.

During the Christmas Recess I took legal advice, as I hope the Minister did. I took such advice from sources that are far more familiar than I am with the goings-on at the European Court of Human Rights. That advice was very clearly that if the existing arrangements for the Army and Air Force Acts over election for trial by court martial at the end of summary proceedings rather than at the beginning were to remain, we would almost certainly lose the case at the European Court, even if we did not lose it in a court in this country. However, more importantly, in the course of that being considered by the European Court, the danger is that the whole issue of whether summary proceedings were themselves in conformity with the convention on human rights might be brought into question. That would be extremely dangerous; indeed, far more dangerous than just bringing the election of trial by court martial to the beginning instead of the end of summary proceedings.

The latter argument has certainly convinced me and it is the one which, I believe, has convinced the senior officers in the Ministry of Defence, as claimed by the Minister in Committee. I accept that they have been

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converted to full support of this Bill. I should not like to guess exactly when they were converted, but they have been converted.

I am not quite sure of the extent to which the amendment of the noble Lord, Lord Campbell, is dependent on Clauses 11 and 14 to 25 staying in the Bill. However, I should like to make it clear now that I assume that they will stand part of the Bill, and that I do not oppose them standing part of the Bill. As to the operation of the whole system, particularly the clauses before Clause 11, in times of active service and high intensity warfare--I certainly still agree that it could not be made to work in those circumstances--I accept that there need not be anything in the Bill to cover that situation. I believe that a precedent already exists in the derogation that the British Government made over the civil courts in Northern Ireland, which is fully explained in Schedule 3 to the Human Rights Act, and that that would be the way to deal with the issue.

However, I am not sure in my mind because I have other worries about the amendment of the noble Lord, Lord Campbell of Alloway, as regards its relation to other courts. If the amendment is dependent on Clauses 11 and 14 to 25 not remaining part of the Bill, I should make it clear that I am assuming that they will remain part of the Bill.

Lord Renton: My Lords, I suggest that what the noble and gallant Lord, Lord Carver, has said makes it clear that there is a serious confusion which could cause trouble in the administration of law within the Armed Forces. That confusion is caused by our obligations under the European Convention on Human Rights and is to a great extent confirmed by the Human Rights Act of last year and by this Bill. It is right that an attempt should be made to reconcile those confusions. For that reason, I think that what my noble friend Lord Campbell of Alloway has proposed with his new clause must be regarded as a valiant attempt to reconcile these problems.

As my noble friend mentioned, I tried to resolve the problem in Committee in a rather short and simple way. However, the noble Baroness, on behalf of the Government, would not accept my amendment. I have tabled the amendment again, although it appears starred on the Marshall List for a strange reason that I may mention when the time comes to deal with it. I believe that the Government really must seriously consider the confusion that can and will arise on many occasions in the three Armed Forces, unless we try to find a way of reconciling the conflicting problems.

My noble friend has made a splendid attempt in this respect. Of course, one could amend his proposed new clause in various minor ways. However, I think that the Government should, in principle, say that they realise there is this confusion and that it must be resolved somehow. I should have thought that the right thing for the Government to do is to say that they will accept the new clause, realising that they have power to amend it either on Third Reading or when the Bill goes to another place.

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Before I conclude I hope that I may mention what my noble friend Lord Campbell said about the part that I played half a century ago when I was one of the representatives--I was a Back-Bench Member in another place--attending the Council of Europe. I went there in 1951 and 1952. By the time I got there in 1951 the European Convention on Human Rights had already been approved. My recollection is--I remember looking up the discussion which had taken place before I got there--that the purpose of the convention was to protect the people of Europe from further instances of the kind of terrorism and horror which had prevailed during the Second World War and which many thought would continue afterwards.

In that context I do not think that there was any attempt to consider and to reconcile the effect of that convention on discipline within the Armed Forces of the European countries. It is rather strange that the conflict could only have arisen almost half a century later. But it has arisen and we have a duty to try to reconcile it. It is for those reasons that I suggest that the Government should apply their minds seriously to this matter and if they do not accept the amendment of my noble friend find a way of their own. However, a good step towards doing so would be to accept his amendment and, if necessary, amend it later.

3.30 p.m.

Lord Lester of Herne Hill: My Lords, I have not taken part in the previous debates on this Bill but I have carefully studied the Hansard reports. My military qualifications for taking part are rather meagre. During the Suez war I had the privilege of performing national service in the Royal Artillery first as a field gunner and later as a second lieutenant working with but not of the First Brigade of Guards, based in Kent. I suppose that I was on active service in the sense that we were at 24 hours' notice to embark for Egypt, but perhaps happily for others we never left our barracks in Shorncliffe. As a teenage subaltern I assisted in one court martial and on occasion I had to enforce discipline, including briefly depriving offending gunners of their liberty. That experience scarcely qualifies me as an expert on military law and discipline but it convinced me that the regime for dealing with disciplinary offences was archaic and unfair.

A better reason for venturing into this debate in the presence of so many noble and gallant Lords, including the noble and gallant Lord, Lord Carver, with whose legal advice I respectfully agree, is my knowledge and experience of the human rights convention and its case law. The Minister has made a statement under Section 19 of the Human Rights Act 1998 of her view that the Bill is compatible with the convention rights. It is unfortunate that the Government have not sought to set up the long-promised Joint Select Committee on human rights because I have no doubt that such an expert committee would agree with the Minister's view. In the absence of such a committee I shall do my best to explain, as an unworthy substitute, why I believe the Bill to be compatible with convention rights, why I think that it

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is appropriate and necessary and why I believe that the amendment proposed by the noble Lord, Lord Campbell of Alloway, is inappropriate and unnecessary. I shall also try to explain why the recollections of the noble Lord, Lord Renton, are not totally accurate--there is no reason that he would know this--as regards what went on in the Cabinet before we decided to ratify the convention in 1950.

The Bill secures the convention right to liberty, guaranteed by Article 5, the right to a fair trial by an independent and impartial tribunal, guaranteed by Article 6, and the right to the enjoyment of these convention rights without discrimination, as guaranteed by Article 14. Without this legislation--this Bill--there would be a serious risk that when the Human Rights Act 1998 is in force next October Ministers and senior officers of the Armed Forces would be vulnerable to legal challenge under the existing legislation, with collateral damage to morale, good order and military discipline. The Bill sensibly diminishes that risk--it cannot be eliminated altogether--and the Government are to be commended for introducing a measure to bring our statute book and practice fully into line with convention standards.

When the Human Rights Act is in force British courts will have not the power but the duty of construing legislation where possible compatibly with the convention rights, applying the well-known principles of legality, fairness and proportionality developed by European and Commonwealth courts. Our courts will do so more rigorously than does the European Court of Human Rights as an international court because that is what Parliament has decided that they should do by enacting the Human Rights Act. With effect from next October all public authorities, including Ministers, government departments and officers of the Armed Forces performing functions of a public nature, including disciplinary functions, will be liable for any failure to comply with convention rights in the way they perform those functions. Therefore the Government are acting in the interests of commanding officers and in the interests of service personnel as well as in the wider public interest in introducing a system which will protect convention rights and avoid unnecessary litigation by lawyers such as myself.

In my view the Bill achieves a fair balance between two vital public interests: the public interest in creating a framework of discipline to be applied effectively to the three Armed Forces wherever in the world they are based in peacetime and in times of conflict; and the public interest in ensuring that the civil rights of service men and women are effectively protected against any abuse of essential disciplinary powers. I am fortified in my opinion by the fact that the Chiefs of Staff have been fully consulted on the changes and endorse the need for them.

Critics of the Bill in this House have made much of the fact that when France ratified the convention in May 1974 it made a reservation in respect of the Armed Forces. So, more recently, has Turkey. The French reservation was not open-ended. It was specifically linked to the effect of Articles 5 and 6 of

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the convention on Section 27 of Act No. 72-662 of 13th July 1972 governing the system of discipline in the French armed forces and to the provisions of Article 375 of the French code of military justice. I am not an expert on French law and I cannot inform the House of the scope of those provisions, nor whether their compatibility with convention rights has been challenged. What I can say is that the European Court of Human Rights would interpret the French Government's reservation narrowly to ensure that it did not in any way undermine the very substance of the convention rights to liberty and to a fair trial without discrimination. Opponents of the Bill would be most unwise to draw support from the French Government's reservation, which does not in any event apply to the UK or to any other contracting state. Turkey's reservation has been circumvented by the European Court in the case of Loizidou for slightly different reasons.

Departing for a moment from this theme, as regards the Attlee government of 1949 to 1950 and the first Wilson government in 1965, having read the debates, I read again overnight the Cabinet papers which recorded what happened before we ratified the convention and before we decided to accept the right of individual petition. The then Lord Chancellor, Lord Jowitt, was concerned that ratification would be incompatible with the visiting forces Act in relation to American forces in Britain and the absence of any right to habeas corpus. That was the only issue with regard to military law which troubled the government in 1949 to 1950. Similarly, when the Wilson government decided to accept the right of petition--although by that time it was perfectly clear from the text of the convention and from case law that it applied to the Armed Forces--the Ministry of Defence and other government departments found no difficulty so far as concerned the absence of a reservation.

Coming more to the present, pre-trial custody involves an interference with right to liberty for which there must, under the convention, be adequate safeguards against abuse. The Bill provides for adequate internal and external safeguards in three ways: by requiring the commanding officer to review the need for continuing custody; by requiring the commanding officer to apply the criteria prescribed by the Police and Criminal Evidence Act; and by requiring a judicial officer to approve continuing custody in excess of 48 hours. I believe that these changes are necessary to secure full compliance with Article 5, including adequate safeguards against possible abuses of discretionary powers. The fact that the judicial officer will normally be a judge advocate or a naval judge advocate, who exercises independent judicial functions in courts martial, ensures the necessary safeguards of independence and impartiality as well as the necessary expertise.

The changes made to the procedures for summary discipline are also, in my opinion, needed to secure full compliance with Articles 5, 6 and 14, by giving a right of appeal from summary hearings and by establishing a summary appeal court, consisting of a judge advocate and two independent officers, generally from

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the appellant's service, with public hearings and a limitation on sentencing powers to ensure fairness and proportionality.

The amendment of the noble Lord, Lord Campbell of Alloway, would, as we have heard, create an Armed Forces human rights court consisting of between two and four 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. The court would deal with appeals from decisions of courts martial or the courts martial appeals court on questions relating to the application of the convention, and would be convened by the Secretary of State as and when it was expedient, in his opinion, to attend to business.

There are several objections to the amendment. First, it is unnecessary because courts martial and summary appeal courts will be obliged, under the Human Rights Act and under the Bill, to interpret and apply the law compatibly with convention rights, as will every other court and tribunal in the land. There is no need to add a further tier of statutory appellate jurisdiction.

Secondly, the requirement that the president of the proposed court must be a senior member of the judiciary would impose a considerable and unnecessary additional burden on the already overburdened senior judiciary.

Thirdly, there is nothing to be gained by the amendment in terms of the composition or expertise of the appellate court. Clause 15 of the Bill provides for judge advocates, who must be of at least five years' standing as qualified lawyers, to be appointed by the Judge Advocate General and the Chief Naval Judge Advocate. Clause 16 provides that officers will be qualified for membership of the summary appeal court if they are commissioned military officers in any of Her Majesty's naval, military or air forces with not less than two years' service. Clause 21 provides for the case stated procedure to the High Court on the ground that the summary appeal court's judgment is wrong in law or in excess of its jurisdiction. The respondent to the appeal could presumably challenge the decision by way of judicial review in the High Court, although that is a matter that the Minister may wish to clarify. Obviously it is important that respondents as well as appellants should have some means of access to the most senior courts.

Fourthly, under the amendment it would be left to the Secretary of State to decide when to convene the proposed human rights court. It is difficult to understand why the Minister should decide that question. The Bill is more flexible and practical, enabling the summary appeal court for each service to sit in two or more divisions, enabling a number of courts to sit in different places to hear different cases at the same time, as the interests of justice require.

I regret that I cannot be present throughout the whole of the debate on the Bill--I have to chair a meeting elsewhere--but I hope it is clear from what I have said that I regard the opposition to the Bill as

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misconceived and contrary to the best interests of the Ministry of Defence and the Armed Forces, officers and service personnel. If I may say so, nothing has been more debilitating to service morale than the completely unnecessary litigation against the Ministry of Defence, involving sex discrimination against pregnant women and others, race discrimination and sexual orientation discrimination. The reason I call it "unnecessary litigation" is that it must have been plain to everyone that all such litigation was bound to lead to defeat for the Ministry of Defence, at enormous expense to the taxpayer and to the morale of people in both the ministry and the Armed Forces. The Government surely are sensible in seeking to avoid further unnecessary litigation by creating a fair, rational and practical new statutory framework.

3.45 p.m.

Lord Craig of Radley: My Lords, I have listened with great interest to the noble Lord, Lord Lester of Herne Hill. I hope that he will accept--certainly in my case and, I believe, in that of others--that those of us who have been tabling amendments to the Bill are not against the principle of human rights applying to the Armed Forces. We are seeking to test whether the solution that the Ministry of Defence has come up with in the Bill is the best solution from the service discipline point of view. The wise words of the noble Lord, Lord Renton, and the amendment that we are now discussing, have been very helpful in testing whether the solution brought forward by the Minister is the very best one possible. I hope that the House will approach the matter in that way and not by way of assuming that we are trying in some way to disown the obligations of the Ministry of Defence under the Human Rights Act.

When the Human Rights Bill was passing through the House I tried very hard to obtain some arrangement which would minimise the impact of the human rights legislation so far as it concerned forces discipline. I failed in that, but I am very pleased that the matter has come forward in this form. I very much look forward to what the Minister has to say in response to the amendment.

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