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Lord Burnham: My Lords, I thank the noble Baroness for that explanation. The purpose of Amendments Nos. 5 to 7 is solely to underline what we believe is the necessity to reconcile and consolidate the various discipline Acts. As to Amendment No. 2, I was very happy to hear virtually all that the noble Baroness said. However, she said that after the quinquennial Act the Government would look very seriously at reconciliation of the discipline Acts. I do not now seek anything as ridiculous as completion of the necessary work over the Christmas Recess. A considerable time will elapse before the publication of the Bill. I ask that the quinquennial Act should itself contain the reconciliation of the disciplinary Acts. With that caveat, I have much pleasure in withdrawing the amendment.

Amendment, by leave, withdrawn.

Lord Burnham moved Amendment No. 3:


(" .--(1) Where a person to whom this Act would otherwise apply is engaged in operations to which the Geneva Convention of 12 August 1949 and the Additional Protocols of 1977 apply, the several time limits set by this Act by reference directly or indirectly to the time at which the person is first arrested shall not start to run until either--
(a) the arrested person is no longer engaged in operations to which the said Conventions apply; or
(b) fourteen days have elapsed since the arrest was made, whichever is the first.
(2) A reasonable belief on the part of the commanding officer or other superior authority concerned that the said Conventions apply shall be an absolute defence against any allegations to the contrary.").

The noble Lord said: My Lords, we now come to a matter that is a source of substantial worry to a considerable number of noble Lords, particularly those whose experience of administering service discipline is greater than mine. The amendment is related to the impossibility in certain circumstances of administering the Act as set out. One is concerned with timing. We do not believe that under the polar ice cap, in Kosovo or in South Georgia it is possible to apply the time limits contained in the Bill. We have no desire to damage the Bill but we seek to make it possible to apply it effectively.

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Amendment No. 3 has been worded so as to make reference to the Geneva conventions which provide an internationally agreed definition of "armed conflict". That definition is narrower than the UK's definition of "active service", to be found in Sections 224 and 225 of the Army Act and the provisions in the other Acts. The derogation contained in Article 15 of ECHR is not good enough for what we require. We do not suggest that a nation will be in peril very often, which is required for the purposes of that derogation. We seek to apply an acceptable compliant definition of "active service" which, while narrower than the UK working definition, which is also used for other purposes, is a real marker of the dividing line between ordinary service life when the ECHR applies and the extraordinary circumstances peculiar to service life when it is generally recognised that on occasions--this point has been made by a number of noble Lords during debates on the subject--personal liberty must for the time being be subordinated to the requirements of discipline. We talk about additional protocols. The UK became a high contracting party to those additional protocols in 1998. The first additional protocol relates basically to an international conflict and the second to a national one.

Subsection (2) of the amendment deals with whether those additional protocols cover in British law the situation when, for example, British troops operate under the United Nations as distinct from the United Kingdom authority, as in Kosovo. There is a reasonable belief that they do so but no certainty. Subsection (2) is somewhat like that catch-all phrase to which my noble friend Lord Renton will refer later: offences against good order and military discipline.

We believe that subsection (2) is a reasonable definition and a requirement which, if applied, would not be in breach of the Human Rights Act or the ECHR. We believe that the amendment is not contrary to the Human Rights Act or the ECHR. It is a practical way, and the only way, in which it will be possible to apply the Act when we are in peril. I beg to move.

4.30 p.m.

Lord Carver: My Lords, I recognise that the amendment is an ingenious way of meeting the criticism that I made at Second Reading, in Committee and today about circumstances which I refer to as high intensity warfare. For example, if the Gulf War had continued for a great deal longer, it would not have been practical to apply Clauses 1 to 10 concerning custody and gaining authority from the judge advocate.

However, I am not happy with the amendment. Subsection (1) would be difficult to apply. To state that those conditions are the ones automatically to apply will lead to considerable difficulties and complications. It would be unsatisfactory to rely on the reasonable belief of the commanding officer.

I accept that the wording of Article 15 of the convention as a basis of derogation might raise difficulties. But if it can be used as it has been used in

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respect of the civil courts in Northern Ireland, I cannot understand why it should not be used, as the noble Baroness suggested, in those conditions where it would be impractical to apply the provisions.

The advantage would be that the British Government would determine when they wanted to make the change and when they did not, whereas there could be difficulties in deciding on the conditions suggested by the amendment. Although I recognise that the intention is admirable, I regret that I cannot support the amendment.

Lord Vivian: My Lords, to a certain degree this amendment returns to the timing provisions that have been drafted for custody regulation. Like many of your Lordships, I was concerned that the proposals in the Bill for custody would not be workable in operations such as the Falklands, the Gulf and certain peace enforcement situations.

However, on further scrutiny of the Bill, I have now noted--I missed it at Second Reading--that in the proposed legislation there are adequate provisions for flexibility in those instances when operational imperatives make it impossible to conform to those legal requirements. New Section 75B(4) provides flexibility in reviewing custody. It states:

    "If a review is postponed under subsections (3) [and (4) of this clause]".

Presumably this would then entitle a commanding officer to postponement of a review provided that it is carried out as soon as is practicable after the expiry of the last authorisation under new Section 75A(4) of the Bill.

New Section 75E(2) allows the commanding officer flexibility over the timings of custody hearings and reviews, and periods of time in the relevant clauses are to be treated as approximate only.

Lord Wallace of Saltaire: My Lords, I speak on the same lines as the noble and gallant Lord, Lord Vivian. The serious intent of the amendment is to strengthen the phrase in new Section 75B, "as soon as practicable", and to put it into a stronger form.

As a layman in many of these matters, during the past week I consulted two acquaintances who have recently held regimental command on whether such an additional amendment was necessary. Their opinions on the quality of the Bill were different. One said, "We have to accept this. It's a necessary evil". The other said, "It's a thoroughly good thing. It's about time we encouraged COs to recognise that justice should reign even on operations". The strongest impression I received is that the communications revolution has made it possible to operate a system where "as soon as practicable" means not a very long time.

One exceptional circumstance remains: the prospect of a nuclear submarine under a Polar icecap. However, whether one's entire military system should be based upon that one exception needs to be considered carefully. One of those to whom I spoke said, "If you are in deepest Kosovo or Borneo, the Ministry of Defence may not want to speak to you all the time, but

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the BBC or CNN will be demanding an interview, whatever happens". So the image of long operations which are not in touch with base seems no longer to hold. I therefore suggest that the amendment is not necessary and that the phrase "as soon as practicable" covers the necessary clauses.

Lord Lea of Crondall: My Lords, I have been a Member of this House for only a few months. It is interesting to note that when this issue, which loomed large only a few weeks ago, is put under the spotlight it reveals that an active service clause is not a sensible idea. Many Members who believed, as did the noble and gallant Lord, Lord Carver, that that was the way forward do not believe so now. During this debate there has been much reference to flexibility. Clause 2 of the Bill refers to Section 75 of the Army Act and indicates that in practice the issue should be dealt with on a common sense basis.

To reiterate the point in another way, this problem, as perceived by many noble Lords only a few weeks ago, has been thoroughly scrutinised. A broad consensus is emerging on all sides of the House that it has been looked at very carefully and that this is probably not a good solution. The Bill will be debated for many weeks yet in the newspapers and in the country, and those concerned should take note of how this process of scrutiny of this aspect of the Bill has produced a very useful consensus result. It is very useful that the matter has been raised, but I believe that that is the message being received around the House on this point.

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