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Lord Burnham: My Lords, before the noble and learned Lord sits down, and before my noble friend, Lord Renton, replies, perhaps I may ask the noble and learned Lord whether, if the amendment of my noble friend was phrased in the terms of his amendment at Report stage, which in fact he withdrew, it would be acceptable and whether at this stage in the proceedings a manuscript amendment in those terms would be acceptable. I have to say that I have not spoken to my noble friend Lord Renton on this matter.
Lord Renton: My Lords, before the noble and learned Lord replies, perhaps I may say that the amendment which I have tabled for Third Reading is narrower in its effect than the amendment that I tabled in Committee, and tabled again but withdrew before it was discussed on Report. Perhaps I may also say that the amendment that I have tabled today is intended to help the Government by resolving the conflict which will arise, admittedly on rare occasions--but it must be covered in case it does arise--between a conviction for a breach of good order and military discipline on the one hand and the assertion of the rights of the accused person under the Human Rights Act on the other hand.
One should draw attention to the fact that the Clerks at the Table allowed the broader amendment for the Committee and Report stages. The broader amendment referred to "proceedings", but this amendment refers to merely a part of the proceedings--although a pretty vital part--namely, a conviction. It is utterly illogical, especially when the Long Title of the Bill refers to,
- "findings made or punishments awarded on summary dealing or summary trial; and for connected purposes".
Perhaps I may conclude on a purely personal matter. I have been in Parliament for 54 years. I have been in your Lordships' House for 20 years. As far as I can remember, this is the very first time since I came to your Lordships' House that an amendment of mine has been rejected by the Table.
Lord Williams of Mostyn: My Lords, I am sure that that is right, because although the noble Lord and I may have disagreed on matters of principle, I do not think that we have ever disagreed on matters of procedure. What I am transmitting is the advice that has been given. I respectfully repeat the observation
that I made earlier: the Companion makes it perfectly plain that the advice of the Clerks should be taken in relation to matters such as these.I take the noble Lord's point that this is a different amendment in terms of phraseology from the one that was accepted earlier, as he put it. However, the very firm, unambiguous advice that we have--I know that it has been transmitted to a number of your Lordships--is that this is not an amendment capable of being relevant. That does sound rather harsh and discourteous. It is not intended to be. "Relevance" there is used, as I understand it, as a term of art; namely, outside the scope of the Bill. Despite what the noble Lord, Lord Renton, says about connected purposes, our perfectly clear advice is that that does not make this a relevant amendment capable of being discussed.
The noble Lord, Lord Burnham, asked whether at this stage it would be possible to have a manuscript amendment in different terms. I understand that it is not possible.
Lord Renton: My Lords, did the noble and learned Lord say "possible" or "not possible"?
Lord Williams of Mostyn: It is not possible, my Lords, at Third Reading.
Lord Campbell of Alloway: My Lords, with the leave of the House, perhaps I may make a constructive suggestion. If, for example, the noble Baroness, Lady Symons of Vernham Dean, were able to give the kind of undertaking which I suggested as to a code of practice, would that not go a very long way to meet the concerns of my noble friend Lord Renton?
Lord Williams of Mostyn: My Lords, I do not think that I can answer for the noble Baroness as I am addressing the House at the moment, and I am not sure whether I can answer for the noble Lord, Lord Renton, when such a question is put to me, perfectly understandably and courteously. It is really a matter for the noble Lord. What I would say is that this is an important matter. We do regulate our own procedure. The advice is perfectly plain. I would, therefore, after this brief discussion, invite the noble Lord, Lord Renton, not to persist with this amendment.
Lord Renton: My Lords, perhaps I may have your Lordships' leave to speak again because this is an important matter. The noble and learned Lord seemed to suggest that the advice of the Clerks at the Table had to be accepted. But that assumes that they are always right. I must say that I would have put much greater faith in the judgment of the noble and learned Lord than in any of the officials of the House in view of his tremendous experience and learning--and not all of them are even lawyers. With great respect, the reasons which I have put forward carry weight. I cannot use another expression. To say that the amendment, which is more narrow than the one accepted for the Committee stage and which deals with a conviction
rather than with proceedings--convictions are merely part of proceedings--is irrelevant is, with the deepest respect, invalid.
Lord Williams of Mostyn: My Lords, I am not sure how much I can usefully further contribute. I have to say--I think it will be the general experience of the overwhelming majority of your Lordships--that I have always found the quality of the advice given admirably conscientious and thoroughly well considered. I know that the noble Lord will not wish to suggest anything to the contrary. I am not going to offer my own advice. It is not appropriate for me to do so. I am simply making two points to your Lordships. First, I did not say that the advice had to be taken; I said that the Companion makes it clear that the advice should be taken. Secondly, the reason the amendment is not relevant--that is not, I repeat, an offensive word; it is a term of art: in other words, the amendment is outside the scope of the Bill--is that it does not limit itself to procedure, which your Lordships have discussed on quite a number of occasions. It extends to substantive criminal law and the rights of defendants there. That is why it is not an apt, appropriate or relevant amendment to the Bill.
Earl Attlee moved Amendment No. 11:
- Page 39, line 34, leave out ("in respect of whom").
The noble Earl said: My Lords, in moving Amendment No. 11, it may be convenient if I speak also to Amendments Nos. 12 to 26 inclusive. I remind the House that I have an interest as I am a serving TA officer with powers of summary jurisdiction that I exercise on behalf of my commanding officer.
We return to the key question of how long a serviceman should have to exercise his right of appeal under Clause 18. Given a free choice, I would not provide for a right of appeal against summary jurisdiction. It is important that your Lordships understand the effect of such a provision. Unlike in civilian life, the various parties to a case cannot avoid each other. Indeed, witnesses and the accused may be friends, I have myself been in that situation. The commanding officer will be in a difficult situation from the moment the serviceman is warned off for disciplinary action until that action is complete. For instance, for obvious reasons he will be reluctant to talk to a group of his own soldiers if the accused is within that group. Currently, under summary jurisdiction, disciplinary action is complete when the CO, after awarding sentence, gives the order "March out". It is then water under the bridge; it is over. It is to be hoped that there will not be a repeat incident and that life in the unit can get back to normal. The whole process, ideally, will be complete within a week.
Clause 18, as originally drafted, provided for 21 days to launch an appeal. This would have meant disciplinary action taking about a month to be completed, which is far too long. Quite apart from the difficulties I have just mentioned, in a serious case the CO may be minded to remand for court martial rather
than risk having his own award reduced by the summary appeal court. During operations, of course, this might well result in the serviceman being sent home, his career seriously damaged.In Committee I moved an amendment providing for seven days in which to launch an appeal. The Minister recognised the strength of my argument and suggested that 10 days was the absolute minimum. She pointed out the need to seek legal advice, determine the grounds for appeal and then actually lodge the appeal. On Report the Minister moved her own amendment providing for two weeks in which to launch an appeal. Whether I have successfully tempted her with 10 days today, I know not.
The problem is that if we are to have this unwelcome provision of Clause 18, we have to strike the right balance between providing an effective and compliant right of appeal on the one hand, and satisfying the paramount needs of maintaining military discipline and morale, on the other--in short, the moral component of fighting power. If we fail to achieve that, we shall be sowing the seeds of a future military disaster.
In order to meet the needs of discipline and morale, we need to complete the disciplinary process as quickly as possible. However, in a very few cases this will not be possible due to the serviceman being unhappy with the outcome. My amendment provides that the serviceman can certify to his commanding officer that he will not be appealing. He will be effectively stating that he is content with the outcome, that he knows he has done wrong, and that he has been dealt with fairly. He will, of course, need time to reflect, so he will not be able to certify until 24 hours after the CO has completed summary dealing. He then has a further six days in which to certify. During the six-day period he can also withdraw his certificate, which he might want to do, possibly after taking legal advice. Even after this period his right of appeal is still not completely lost as the summary appeal court can still consider an appeal out of time.
The new provisions would enable the vast majority of cases to be dealt with quickly. There will be a few cases where the serviceman is not content and will wish to take legal advice. In those cases he will not sign the certificate. Even if he does, the accused's legal adviser can cancel the certificate, provided he does so within six days. He could even do so by fax. That could be provided for in the rules of procedure. After taking legal advice, the accused may decide not to appeal, in which case he need do nothing other than allow the period in which to appeal to run its course.
Finally, in a very few cases there will be genuine difficulties either with the finding or the sentence. During previous stages, the Minister drew attention to the time required to launch an appeal. Because there will be so few cases falling into this category, we can be more generous with the time available to launch an appeal. The amendment therefore provides 21 days, as originally provided for in the Bill. These arrangements ensure that the Bill will still be compliant with the ECHR.
There may be some concern about the extra forms and administration that the new arrangements would entail. For the Army, the UNICOM computer system which already automatically generates the charge forms will be able to produce the certificate at the same time. No doubt the other services have similar facilities on their computer systems. There are often administration actions after summary dealings, providing a convenient opportunity to sign the certificate.
Some noble Lords may be concerned that a serviceman may be forced to sign his certificate. At Report stage I tabled an amendment to deal with the possibility of a serviceman being pressurised into withdrawing his election for court martial. My modest experience of service life has informed me of what actually happens in the real world. However, I was firmly put in my place by the Minister, who said:
- "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".--[Official Report, 18/1/2000; col. 1013.]
Strongly to advise a serviceman not do something that would in fact severely disadvantage him is one thing. Unfairly to pressurise him to sign a certificate that would give up his right of appeal would be quite another. I do not believe that any officer would do so; nor, I am sure, does the Minister.
If these amendments were to be agreed, the Bill would be significantly improved. In practice, there would then be hardly any difference in the current summary dealing arrangements, but the Bill would still be compliant with the ECHR. I beg to move.
3.45 p.m.
Baroness Symons of Vernham Dean: My Lords, I appreciate that the amendments arise from a desire to ensure that the authority of the commanding officer and his ability to maintain discipline are not undermined. It is claimed that the undermining effect would result from the gap between the award of a sentence by the commanding officer and its commencement. I remind the House that there will be such a gap only where a sentence of detention is handed down. All other sentences will commence immediately.
I understand that the purpose of the amendments is benign. However, I cannot recommend that your Lordships agree to them, for two reasons. The first is that they are simply not necessary. We believe that most service personnel who have been dealt with summarily will accept their punishment and will want to get it over and done with, just as they do now. Because of that, we thought that it would be unacceptable to insist that an individual waited for the full 21, now 14, days before he or she was allowed to begin the sentence, if that is what the individual wished to do. We have therefore included a provision in Schedule 3 of the Bill which allows an individual to
begin his or her sentence of detention straight away. It does not require him or her to sign and lodge any certificates. He or she can simply get on with it.The second reason I cannot accept the amendments is that I am afraid they are flawed, in so far as they do not provide an adequate link with the current provisions in the Bill relating to commencement of sentences of detention, and will not necessarily work to achieve what we believe is the purpose behind the noble Earl's amendments.
The amendments as drafted do nothing more than allow an accused to submit a certificate to the commanding officer saying that he or she does not intend to appeal. But it is not mandatory for an individual who is accused to do that. The amendments do not in any way compel an individual to make a decision whether or not to appeal in seven days. An accused may still choose not to appeal but not mention that to anyone for a full 14-day period; or he or she may take the decision after nine, 10 or 11 days and seek to begin the sentence then.
Moreover, the amendment is flawed in so far as it does not require an individual who has certified that he or she does not intend to appeal to begin the sentence before the expiry of 14 days. Presumably, the lack of compulsion upon the accused then to begin the sentence defeats the very purpose of the amendments tabled by the noble Earl.
I have assumed that the purpose of the amendments--in many ways a very worthy purpose--is to help to accelerate the carrying out of justice. The noble Earl made that clear in introducing his amendments. However, we find ourselves again in a position of having to examine the terms of the amendments as drafted. I fear that they fail in their own terms. They are simply not drafted in a way that would ensure that matters were expedited in the way in which the noble Earl believes they would be. I suspect that the deficiency is in the drafting, and that defeats the purpose of the amendments.
I have little to add as to whether we ought to revert to an appeal period of 21 days. The services have agreed that we can live with the status quo; namely, the 14 days now on the face of the Bill. I see no reason to tinker with the Bill again unless it is entirely necessary.
I do not want to appear ungracious about the noble Earl's amendments. I know that he has tabled all of them with the best interests of the services in mind. I am grateful to him for that, and for the explanations that he has provided on the amendments. However, I assure the noble Earl and his noble friend Lord Burnham that the provisions have been carefully scrutinised by the services, and they are satisfied that no further changes are necessary. I hope that on that basis the noble Earl will feel able to withdraw his amendment.
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