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Lord Campbell of Alloway: My Lords, I support this amendment. I understand what it is designed to achieve and I support that but I wonder whether it really achieves it because within it, although it is the best that can be done, there is always the possibility that the Court of Human Rights would say, "Oh, but the procedure as such leans too heavily against the man". I express it in very simple terms.
For my part, I believe that we may well have to return to the problem of whether Clause 11 should stand part of the Bill. I suggest that that is the only satisfactory way of dealing with this situation in view of some of the arguments which I raised on Amendment No. 1 which really were not controverted by any specific allegation of breach. I shall not return to the Motion that Clause 11 shall not stand part of the Bill unless I am supported in that by my own Front Bench because to do so without that support would be to waste the time of the House.
Baroness Symons of Vernham Dean: My Lords, although I understand the intention of this amendment with regard to the Army and Air Force Acts, I must say to the noble Earl, Lord Attlee, that I am extremely concerned that he believes that it is necessary to table this amendment in the first place.
In a sense, the purpose of the amendment is admirable, and I have no doubt that the noble Earl's intentions in tabling it are entirely benign. But it presupposes that there is a problem in the services which is sufficiently serious to warrant primary legislation.
I really do not believe that that is the case. The services obviously consider it very important that there should be no inappropriate influence exercised in relation to whether or not to elect for trial by court martial or the possibility of withdrawing such an election. I am assured that if there were to be instances where undue pressure was found to have been brought, it would be taken very seriously and those responsible for such actions would be disciplined. The services are rightly proud of their system of discipline and they are rightly proud that that system is seen to be fair.
The Army and the Royal Air Force currently have a procedure regulating the withdrawal of an accused's election for court martial, and that is laid down in instructions. During the process, the accused has full access to an adviser of his choice whose services will be available once the accused is charged. He will also have access to any legal advice which he has chosen to seek.
More importantly, the instructions preclude certain persons from acting as the accused's adviser. Those include the commanding officer, the officer commanding, anyone involved with investigating or prosecuting the offence and anyone advising the officers in command. The current procedures seem to reflect the very system which the noble Earl believes should operate. However, that is in contrast to the provisions of the amendment which seem to presuppose some involvement by a representative of the commanding officer.
It is difficult to disagree with the sentiments behind the amendment. However, I do not believe that the amendment achieves what it sets out to do. My doubts may be different in character but they mirror those of the noble Lord, Lord Campbell of Alloway; namely, that the amendment does not achieve the objective which the noble Earl stated nor does it usefully add anything to the impartial procedures already in place. The procedures are well understood and we do not believe that there is any reason to tamper with them. On the basis of the assurances that I have given to the noble Earl, I hope that he will feel able to withdraw the amendment.
5.30 p.m.
Earl Attlee : My Lords, I am grateful for the response given by the Minister and for that of my noble friend Lord Campbell of Alloway. Perhaps I should have consulted my noble friend before tabling my amendment.
I am not convinced that Clause 11 should not stand part. As I explained in moving the amendment, Clause 11 is not fatal to military ethos or the moral component of fighting power. But I am concerned that pressure can be applied to a soldier or serviceman to withdraw his election. However, I have listened carefully to what the Minister said. I hope that she will listen carefully to what I have said about the problem. In my experience, this problem can occur, particularly if a soldier or serviceman is being stupid and saying that he wants to elect for court martial when it is not in his best interests to do so. I am certain that heavy pressure would be placed on him to withdraw and that he would not be allowed to go through the court martial procedure. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Renton moved Amendment No. 16A:
- After Clause 13, insert the following new clause--
(" . No provision of the Human Rights Act 1998 shall prevent proceedings being taken for offences against good order and military discipline.").
The noble Lord said: My Lords, your Lordships will see that this is a starred amendment on a separate sheet of paper. I moved and withdrew the amendment in
In view of the valuable debate we had in Committee, I do not now press the amendment. However, I feel I should mention that at Third Reading I shall table the shortened version. In the mean time I beg leave to withdraw the starred amendment.
Amendment, by leave, withdrawn.
Baroness Symons of Vernham Dean moved Amendment No. 17:
The noble Baroness said: My Lords, in moving Amendment No. 17, I shall speak also to Amendments Nos. 19, 21 and 22. The purpose of these amendments is to reduce from 21 to 14 days the period in which an accused may lodge, with the summary appeal court, an appeal against the decisions of the commanding officer.
I am sure that your Lordships will recall that in Committee I agreed to reconsider the period in which an appeal may be brought in response to the amendment tabled by the noble Earl, Lord Attlee, which he graciously agreed to withdraw at that time.
In Committee I explained that we selected 21 days primarily because it seemed sensible to mirror the civilian system and also seemed a reasonable amount of time to allow an accused to secure legal advice, apply for legal aid and lodge an appeal.
I was unable to accept the amendment of the noble Earl as the period of seven days, which he suggested, was likely to be incompatible with the convention as being too short a time in which to appeal. The possibility of large numbers of applicants seeking leave to appeal out of time or, indeed, of accused invariably lodging possibly ill-considered appeals simply to ensure that they were within time, seemed to me to be something we would all wish to avoid.
However, as I indicated, that 21-day period is not set in stone. I am satisfied that 14 days is a period acceptable to both the accused and the services. That will give an accused two working weeks in which to prepare his or her appeal.
The amendments proposed by the noble Earl, Lord Attlee, suggest that the period should be reduced to 10 days. I believe that that figure is based on the statement I made in Committee that anything less than 10 days would probably be incompatible with the convention. I do not withdraw that statement; nor do I seek to contradict it with this amendment. However, I do not believe that 10 days is an appropriate period in which to allow someone to seek to organise an appeal. It is purely a matter of judgment and of where one believes the realistic time period should fall. We believe the period of 14 days to be reasonable. I do not believe there is any merit in giving someone a right and then making it difficult for such a person to exercise that right. Given the circumstances I have described, I believe that 14 days is a fair and reasonable period; fairer and more reasonable than the 10 days which the noble Earl asked us to consider in the subsequent amendment. I hope that he will feel able to support the government amendment on this point.
Lord Burnham: My Lords, half a loaf is better than no bread. Amendment No. 17 is not grouped with Amendment No. 18. I give notice at this stage that I still intend to move Amendment No. 18, but I have pleasure and thanks in accepting Amendment No. 17 tabled by the noble Baroness.
On Question, amendment agreed to.
Lord Burnham moved Amendment No. 18:
The noble Lord said: My Lords, there is a mildly improper story which I should not tell in your Lordships' House, the gist of which is that we establish a principle, and it only remains to determine the sum.
On this side we started off in discussion with 48 hours against the Government's 21 days, though I cannot remember whether that was put on the face of the Bill. At an earlier stage of the Bill we went to seven days. I believe there is a real problem in that 10 days is too long. We want to get on with things. We may have two men who are given punishments, one of whom is prepared to accept it immediately and the other wishes time to think before he gives an answer.
I still believe that 10 days is too long, but I am trying to establish a price for the Government. Noble Lords have been telling me throughout discussion on the Bill that communication is easy and that it is possible for a man to be given information, consultation and everything one would care to think of, as referred to in the amendment tabled by my noble friend. He can be told that he has every opportunity to talk, and I believe that can be done within 10 days. I urge the Government therefore to come to us and say "10 days".
My noble friend, from whom I have taken over the moving of this amendment--slightly to his disgust--may want to add something to what I have said. I beg to move.
"No provision of the Human Rights Act 1998 shall prevent members of the Armed Forces from being found guilty of offences against good order and military discipline".
That partly resolves a conflict we had when discussing Amendment No. 1 today and one which we have discussed in various ways in Committee. Last week I tabled a variation of the original amendment in that form. For some strange and invalid reason a clerk in the Public Bill Office refused to table it. I did not know of that until yesterday when I arrived here after 5 o'clock, so I went and discussed it. I was not convinced of the reasons given. However, in view of the short time available I did not press the matter but decided to table the amendment in its original form.
Page 39, line 41, leave out ("twenty-one") and insert ("fourteen").
Page 39, line 41, leave out ("twenty-one") and insert ("ten").
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