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The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, perhaps I may begin by assuring the noble Lord, Lord Burnham, that I should not in the least have minded discussing medical services or fuel for the Armed Forces, except that neither topic is relevant to the Bill before us. However, no doubt we shall be able to discuss those matters should the noble Lord decide at any point to table Questions on them.

The noble Lord is seeking once again to include some kind of opt-out amendment in the Bill concerning the arrangements that will permit an individual to be arrested and held in custody without

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charge. The noble Lord has tabled three substantive amendments, repeated three times, for each of the armed services. We addressed the difficulties with this type of amendment in Committee. I regret to inform the noble Lord that the new amendments contain nothing compelling to persuade the Government that they should be incorporated into the Bill. However, I can think of three very compelling reasons why they should not be included.

The first reason relates to Amendments Nos. 3, 6 and 9. They provide that a person may be kept in military custody without charge for more than 48 hours, because an investigation could not be launched. In effect, that could prolong indefinitely the period before which a person must be brought before a judicial officer. The effect of the drafting of the noble Lord's amendment would override the provisions in the Bill which limit to 96 hours the total custody of an individual without charge, because the wording of the amendment provides an alternative to the current provisions which include the 96-hour limit. Indeed, they are completely open-ended in terms of the length of custody without charge that would be permissible.

In relation to the convention, we have been advised that in order to comply with the principle of fairness, 96 hours is the maximum period of custody without charge that is likely to be compatible. On that point alone, it is my understanding that we do not have flexibility and I appreciate the reasons for that. A period of 96 hours--four days--is a long time in which to be deprived of one's liberty. In any event, we do not expect the 96-hour limit to create any problems because we would expect charges to be laid before someone within that period or for the person to be released while investigations continued. Furthermore, the Bill does not affect the ability of the commanding officer to restrict an individual's movements; for example, an individual could be confined to barracks.

As I have said on previous occasions, the Bill offers a great deal of flexibility in relation to timing, as several noble Lords have already pointed out. It also offers flexibility in relation to enabling the commanding officer to delegate certain of his powers. This flexibility has been developed with the services to meet those needs which I appreciate have been of great concern to many noble Lords, foremost among whom has been the noble Lord, Lord Burnham. However, the provisions have been designed to accommodate the kind of situations that we have discussed during the passage of the Bill, such as the events in East Timor, a submarine under the polar ice cap, or the demands of operational flying.

The second reason why the amendments are unnecessary is that, as drafted, what will be new Section 75A of the Army Act allows flexibility in relation to custody which may be required in difficult operational circumstances. Therefore, this has already been dealt with on the face of the Bill. The legislation allows the person who made the arrest to keep an individual in custody without charge until the commanding officer has received a report from the arresting officer advising him of the individual's arrest

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and has made his own decision on whether to keep the individual in custody. Additionally, the Bill requires the commanding officer to make his decision on custody only "as soon as practicable". Flexibility for operational exigencies is already on the face of the Bill, as the noble Lord, Lord Campbell of Alloway, reminded us when he referred to the words of his noble friend Lord Vivian on Report, and as the noble and gallant Lord, Lord Carver, also reminded us today.

Finally, any argument that the commanding officer should not be troubled in operational circumstances with questions of custody can be countered by the provisions in new Section 75E. In effect, this provides for the functions of the commanding officer in relation to custody to be delegated. For example, if the commanding officer of a flying station is absent for regular operational reasons, he can delegate his powers in relation to the matter to an officer under his command.

I must say that my third reason for not accepting these amendments is because Amendments Nos. 1, 4 and 7 contain drafting flaws which appear to me to be pretty much fatal and to render them inoperable. The flaws result from the very first word used--"and"--which requires the amendments to be read in conjunction with the words immediately preceding them. Those words, which are of course already in the Bill, lay down the conditions that enable the commanding officer to authorise custody. Essentially that custody is necessary to secure evidence and the commanding officer must be confident that the investigation is being conducted speedily. As I see it, because the amendments are prefaced with the word "and" to add a third condition about the operational circumstances prevailing at the time, that would mean that the commanding officer would find it more rather than less difficult to justify custody. I suspect that that was not the intention of the noble Lord. It is possible that the word he sought may be been "or". However, the House can consider only the amendment as drafted.

In any case, the overriding point I wish to make is that the Bill does not need the additional flexibility which the noble Lord purports to achieve with these amendments. The detailed proposals in the Bill, which, I remind noble Lords, have been closely developed over many months with the services who will be responsible for the operation of the new procedures, provide all the flexibility they need. For that reason, I urge the noble Lord, Lord Burnham, to listen carefully to the words of the noble and gallant Lord, Lord Inge, who told us that he has taken advice from those whose judgment he trusts. It must be said that the noble and gallant Lord has more experience in these matters than either the noble Lord, Lord Burnham, or myself. The noble and gallant Lord is satisfied on the point. Furthermore, the House is aware that the noble and gallant Lord, Lord Carver, has rightly and properly scrutinised the Bill in great detail. He, too, has expressed himself satisfied on this point. The Government are satisfied and, most importantly, all

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three of the armed services are satisfied. For the reasons I have given, I hope that the noble Lord will see fit to withdraw his amendment.

3.30 p.m.

Lord Burnham: My Lords, during the course of all the stages of the Bill it has been the aim of my noble friends and myself and those who are like-minded on this matter to ensure the maintenance, at the highest level, of service discipline and morale. Whatever the Chiefs of Staff may have assured the Minister--that the people who come under their command are entirely happy with the terms of the Bill--that is not my information or that of my noble friends.

Having said that, I am surprised and depressed by the speeches of the noble and gallant Lords, Lord Inge and Lord Carver, who state that they cannot see any cause for the amendment which I have put forward. I believe that they and others are wrong in their attitude to the Bill. If the Bill enables the Armed Forces to work exactly according to the terms of the European convention and of the Human Rights Act, so be it, but I do not believe that it does; nor do I believe that in many aspects the Bill fulfils its aims; nor will it be readily acceptable to many members of the Armed Forces on the ground.

However, in the light of the attitude of the noble and gallant Lords, and very reluctantly--because I repeat I think it is wrong--I feel I have no alternative but to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 9 not moved.]

Lord Renton had given notice of his intention to move Amendment No. 10:

    After Clause 13, insert the following new clause--


(" . 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.").

The noble Lord said: My Lords, I can see that the noble and learned Lord the Attorney-General wishes to intervene.

The Attorney-General (Lord Williams of Mostyn): My Lords, I think that the noble Lord, Lord Renton, knows what I am going to say. I am advised by the House authorities that Amendment No. 10, which the noble Lord was about to move, is not relevant to the subject matter of the Bill. As your Lordships will know, the Companion states quite clearly that the amendments must be relevant to the subject matter of the Bill and that the advice of the Clerks should be taken in relation to matters such as these. The Clerks in the Public Bill Office advise that whereas this Bill deals with matters of criminal procedure, the amendment does not confine itself to matters of procedure, but extends more generally to the application of substantive criminal law in military courts and the rights of defendants there. The advice therefore is that the amendment is not relevant to the Bill.

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We all have a responsibility to see that our procedures are governed by the House as a whole. Accordingly, with that short explanation, which I hope neither the noble Lord, Lord Renton, nor your noble Lordships, think is intended to be anything other than helpful, I ask the noble Lord, Lord Renton, to accept the advice which the Clerks have offered, and not to move Amendment No. 10. I do understand that the Clerk of Public Bills has given notice to the noble Lord, Lord Renton, that he was writing with this advice.

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