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Lord Burnham moved Amendment No. 1:

(c) that having regard to all the circumstances (including over-riding operational requirements) prevailing at the relevant time it is not practicable for the investigation to be launched diligently and expeditiously").

The noble Lord said: My Lords, I am sure that the Minister will be relieved to hear that discussions about the services' medical services and the shortage of fuel will be held in another place at Question Time this afternoon, and may be referred to but will not be debated in your Lordships' House this afternoon. This afternoon we are in the final stages of what we believe to be an unfortunate Bill which is designed--and possibly achieves, but we are not so certain about that--to achieve adherence to the European Convention on Human Rights and the Human Rights Act.

Amendment No. 1 returns to a point that I have raised since Second Reading in different ways. I have raised it on every occasion and do so now with due seriousness. The measure is designed to consider the practicalities of the operation of the Bill. We have said, and we believe, that it is not practicable to apply the conditions of the Bill on active service, whatever that may mean. I have moved amendments in Sanskrit, and in any other language I care to think of, which refer to the Geneva Convention, additional protocols and Uncle Tom Cobbleigh.

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I return to what I believe to be a simple point. The amendment is phrased in simple English to make it clear that where there is a difficulty in applying the terms of this Bill, a commanding officer or other persons in charge of a service element may be permitted to delay consideration of a disciplinary case until it is practicable to do so; that is to say, when the unit leaves the active service conditions and operations in which it was involved at the time the matter first arose.

As I say, we have discussed almost every aspect of this on a number of occasions. It is a matter which we take extremely seriously. We believe that the Bill should operate in a way that does not damage military discipline. Therefore, I have no hesitation in yet again moving this amendment. I beg to move.

Lord Inge: My Lords, I have taken considerable trouble to talk to the military--not only to its lawyers but to other members, particularly in the Army. I am grateful to the noble Lord, Lord Burnham, for outlining his understanding of the implications of applying the Bill under operational circumstances.

I have been assured by, what I would call, the "foot soldiers", like myself, and the Army lawyers that this matter is covered elsewhere in the amended--I stress the word "amended"--Army Act at Section 75A. Operational considerations are given effect in that Act, as they are in the discipline Acts of the Royal Navy and the Royal Air Force. I believe the amendment is unnecessary.

Lord Campbell of Alloway: My Lords, I shared the endeavours of my noble friend Lord Burnham that it was not practicable to apply the Bill on active service, a point taken by me on Report and at Third Reading of the Human Rights Bill, and by several noble and gallant Lords at Second Reading and on Report of this Bill, which I supported. Amendments Nos. 1 to 4, which are grouped, are concerned with custody, as indeed is the whole range of Amendments Nos. 1 to 9.

On Report, one has to accept that the noble and gallant Lord, Lord Carver, took the view that at times of active service and high intensity warfare, the Bill could not be made to work. But the noble and gallant Lord said that,

    "there need not be anything in the Bill to cover that situation".--[Official Report, 18/1/00; col. 983.]

On Report, at col. 1000 of Hansard, my noble friend Lord Vivian--who has had far more active experience relevant to modern conditions than I have ever had--took the view that Section 75B(4) afforded adequate flexibility in those instances where operating imperatives made it impossible to conform with the legal requirements.

The noble Baroness, Lady Symons of Vernham Dean, has given a series of important assurances. The Bill was designed,

    "so as to be compatible with all circumstances in which the Services might find themselves".

That, in a sense, remains to be seen.

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She said also that,

    "operational considerations will remain paramount".

That no doubt is a firm and genuine intention. She said that commanders will,

    "give appropriate priority to the operational imperatives of the situation",--[Official Report, 18/1/00; col. 1004.]

which will not conflict with the procedures in the Bill.

As part of these assurances she said that commanding officers,

    "must be given proper guidance in the application of these new procedures and the way in which they should exercise the flexibilities that are inherent in this Bill".--[Official Report, 18/1/00; col. 1005.]

Finally, the noble Baroness advocated the need for a single operating system in all circumstances to reduce the scope for confusion, as was spoken to by other noble Lords.

It is of vital consequence that guidance to commanding officers as to operational considerations and having regard to the imperatives of the situation should be codified--perhaps in some kind of code of practice--and that this should be made available not only to commanding officers but to all courts martial, the courts martial appeal court and the summary appeal court. Perhaps the Minister will be able to give a formal undertaking to that effect. But, if such be the case, what is the objection to primary legislation which has the authority of permanent effect until the next amendment of the service discipline Acts, which are amended regularly from time to time?

3.15 p.m.

Baroness Thomas of Walliswood: My Lords, my first duty is to apologise to the House on behalf of my noble friend Lord Wallace of Saltaire, who has been leading on our behalf on the Bill. He is absent from the House because he is today fulfilling a long-standing commitment abroad. So I will speak very briefly to the amendments of the noble Lord, Lord Burnham--although perhaps not quite as briefly as he did.

As the noble Lord said, he tabled a series of amendments to the effect of the present amendments. These reflected the anxiety in certain quarters at earlier stages of the Bill as to the ability of commanding officers to ensure compliance with the ECHR at time of war or when on active service. The noble Lord mentioned that he had tabled other amendments to a similar effect on Report. On that occasion, no less than three gallant and noble Members spoke to the effect that existing legislation, as amended, provides sufficient flexibility for commanders in the field to act in a sensible way.

During the debate on the amendment of the noble Lord, Lord Burnham, on Report, the Minister confirmed the soundness of that thinking and also assured the House that,

    "operational considerations will remain paramount".--[Official Report, 18/1/00; col. 1004.]

There is a whole paragraph to that effect, which the noble Lord can find in Hansard.

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We do not support any amendment to the Bill along these lines. If the noble Lord, Lord Burnham, decides to test the opinion of the House, I will advise my noble friends to vote against his amendment.

Lord Hoyle: My Lords, I admire the doggedness and determination of the noble Lord, Lord Burnham. He has returned to this issue time after time. I hope that when he read my comments on Report he found them favourable. It appears that, once again, noble and gallant Members of the House have said to him that the issue is covered by legislation. I remind him again that the present Chiefs of Staff support this measure and that they would be against duplication of the system. Rather than the tide running for the noble Lord, it seems to be ebbing a little more against him each time he speaks. I hope that after taking everything into consideration he will not press his amendment today.

Lord Carver: My Lords, the noble Lord, Lord Campbell of Alloway, referred to the line that I had taken at Second Reading and in Committee about this issue. There was never any doubt in my mind that operational requirements would take priority; it was a question of whether the system could be made to work. I also accept that on Report I suggested that derogation under Article 15 might be enough but that there are cases in which that might be difficult to apply, as the noble Baroness said when summing up. However, on Report, I was greatly impressed with the words of the noble Lord, Lord Vivian. He spurred me on to look again more carefully at Sections 75A and 75B of the Army Act as revised by the Bill.

I draw the attention of noble Lords to the words on page 2, line 22 where it states that:

    "After receiving a report under subsection (1) above the commanding officer shall as soon as practicable determine".

The same kind of provision is made on page 3, line 35 where it states that:

    "If a review is postponed under subsection (3) above--

    (a) it shall be carried out as soon as practicable".

I accept that sufficient flexibility has been provided to make it possible, if constant reference to the judge advocate is not practicable under the circumstances, for the review to be delayed. For that reason, I regret to have to say to the noble Lord, Lord Burnham, that I cannot support his amendment.

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