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Armed Forces Discipline Bill [H.L.]

3.14 p.m.

The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, I beg to move that this Bill be now read a second time.

The gracious Speech has as the governing principles of our legislative programme the themes of enterprise and fairness and the creation of a modern Britain. Most of the legislative proposals that we are bringing forward fit into that framework, and I believe that the Bill we are considering today does so too.

Our Armed Forces certainly need to be enterprising and innovative in the face of a fast-changing world. We need to be fair in the way that we deal with our Armed Forces and in the way that they deal with themselves. We need to ensure that our Armed Forces operate in the most modern way possible to meet the challenge of change that is in front of them. I believe that this Bill will help them to achieve those objectives.

As many of your Lordships remarked in our debate on the gracious Speech, Britain is rightly proud of its Armed Forces. We have every reason to be so. We like to see our Armed Forces among the best in the world, if not the best in the world. But I believe that that is not just a view of our forces from a UK perspective, but that the standard, quality and effectiveness of Britain's Armed Forces are seen around the world as among the best in the world, and we can take pride in that judgment.

I also believe that we can take particular pride in our Armed Forces because of the way that they have been tested recently and have not been found wanting. They have come through successfully and have proved that the pride, respect and the faith that we have in them are not misplaced. In Iraq, Bosnia, Kosovo, East Timor and over many years in Northern Ireland, our Armed Forces have been beacons for fairness and decency, liberty and democracy. They have not shirked from what we have asked of them in the name of those values. They have delivered in difficulty and in tension, in war zones and in peace-keeping. We have not sought the conflicts in which they have been engaged but we have been determined to obtain the best possible outcome from those conflicts. Our Armed Forces have been the means by which we have done so.

That performance--that status as being among the best in the world--depends on a range of different factors, but certainly among them is the way in which our Armed Forces are organised and operate. Central to that is their command structure and discipline. Discipline is not the populist image of a barked order on a parade ground; discipline goes far deeper than that. It is about co-operation and command. Co-operation--working together--is the key to how our Armed Forces do what they do. They must have trust in one another and a belief in mutual support. They have to trust that everyone around them will do what they are there to do to secure the objective that has been set, and in turn they must meet the trust that everyone else around them places in them. To tackle successfully the difficult situations that they face, every

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member of our Armed Forces must trust implicitly and without limit every other member. They must know that they can depend on them.

That trust, dependence and faith are the basis of discipline in the Armed Forces. That is what discipline is for, and indeed that is what it is. It is a codification of that trust and dependence. Therefore, discipline provides the vital operational structure that our Armed Forces need; it also provides the legal structure.

But discipline in the Armed Forces is not static; it is not a rigid framework fixed for ever and set in a particular way. The Ministry of Defence keeps Armed Forces discipline under constant review. As society changes, so must discipline. It is not altered or modified to make it fit fashionable notions of laxity on the one hand or toughness on the other, but to make sure that it fits with the changing framework from which and in which we recruit people to the Armed Forces, and to make sure that it fits the legal framework--the system of aggregated assent which at heart gives our Armed Forces the legitimacy they must have if they are to act properly as Britain's first-line national security.

The balance to be struck, as ever, is between keeping in step with wider society, of which the Armed Forces are of course a part, and preserving those distinctive features of service life that are key to their operational effectiveness.

The process of reviewing the discipline system normally engages the interest of Parliament most actively when we come to consider each five-yearly Armed Forces Bill. As your Lordships know, we require a Bill on this regular basis in order to continue the existence of the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. This procedure is in turn subject to the annual continuation orders.

These Acts, known collectively as the service discipline Acts, provide the statutory framework for discipline in the Armed Forces. I am happy to note that there has traditionally been a consensual recognition in Parliament of the importance of this legislation and its purpose. The five-yearly Armed Forces Bills also provide the main opportunity to update the service discipline Acts.

The last Armed Forces Act, in 1996, contained major reforms that we in Opposition were pleased to support. A theme of these changes was the transfer from the service chain of command of authority to take certain decisions concerning the trial of offences under the service discipline Acts. This was in recognition of the need to remove the impression, however mistaken, that the chain of command could have an undue influence over court martial proceedings.

Because Armed Forces Bills come along with a certain regularity, it is no secret that your Lordships are likely to be invited to consider another such Bill in the next Session; otherwise the service discipline Acts would expire at the end of 2001 along with the legislative authority for maintaining discipline in our Armed Forces. However, the need to modernise

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service legislation cannot always be conveniently ordered into neat five-yearly intervals. The present Bill is about making some important changes that we do not believe should wait until the next Session.

The Human Rights Act 1998 provides the framework within which we now intend to build on the reforms contained in the 1996 Armed Forces Act. The main provisions of the Human Rights Act will come into force in October 2000. The proposals in this Bill are intended to address concerns about compliance with the European Convention on Human Rights before that date.

The Government consider that the proposals now before your Lordships are intrinsically beneficial. They reinforce the fairness that the services believe is at the heart of their discipline system. As with the 1996 changes, the reforms proposed now are concerned with establishing checks and balances on the chain of command--this time in two areas not fully addressed in 1996. The first of these relates to the arrangements for the pre-trial custody of those being investigated or awaiting trial for alleged offences under the service discipline Acts. The second concerns summary disciplinary proceedings; that is to say, cases that are heard by the accused's commanding officer.

The substance of the Bill is in four parts, the first of which deals with pre-trial custody and the other three with summary proceedings.

Clauses 1 to 10 contain our proposals relating to pre-trial custody. At present, the commanding officer has the main responsibility for deciding whether a suspect or an accused should be held in custody pending charge or trial. There are safeguards to ensure that this responsibility is exercised appropriately and that no one is held in custody unnecessarily. However, these safeguards are all internal, involving the chain of command within the services.

In the Bill, we are proposing to strengthen these internal checks and to formalise them in primary legislation. The legislation will require the commanding officer to review the need for continuing custody no later than 12 and 36 hours after the time of arrest. The commanding officer will apply Police and Criminal Evidence Act criteria. I shall describe those in a moment.

We believe it right that there should also be external and independent checks on decisions that affect an individual's liberty. We therefore intend to introduce a requirement for a judicial officer to approve continuing custody in excess of 48 hours.

The judicial officer will decide whether continued custody is justified while investigations continue, applying criteria similar to those used by magistrates in the civil courts. These Police and Criminal Evidence Act criteria relate to the need to demonstrate both that inquiries are being conducted diligently and expeditiously and that more time is required to obtain and preserve evidence. If the judicial officer is not satisfied that those conditions are fulfilled, the individual must be released. In any event, the judicial officer may not approve custody beyond 96 hours. If by that point the individual has not been charged, he

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or she must be released. I can assure the House that neither the 48 nor 96-hour periods will be regarded as norms. The aim will remain either to charge or to release the individual as soon as possible.

If an individual is charged, the question of the need for continued custody pending trial must be assessed anew. Again the commanding officer will take the initial view on this, this time applying similar criteria to those laid down in the Bail Act 1976. These include issues such as an assessment of the likelihood of an offence being committed or of witnesses being interfered with if the individual is not held in custody.

If the commanding officer considers that there is a case for continued custody, the issue must be referred promptly to the judicial officer who will also apply criteria laid down in the Bail Act 1976. If the judicial officer decides that the accused should be held in custody, he may only order custody for a maximum of eight days or for 28 days if the accused has consented to this longer period. The question must thereafter be readdressed by a judicial officer at intervals of no more than eight or 28 days as appropriate.

Clearly, the judicial officer is a key player in all the procedures I have just described. Clause 7 describes who may be appointed as a judicial officer for this purpose; normally, it will be a judge advocate or a naval judge advocate--in other words, one of the figures who exercise independent judicial functions at courts martial. Judge advocates also have a role in other aspects of the proposals in the Bill.

The rest of the Bill concerns the changes we wish to make to the procedures for summary discipline. For most purposes, as I have said, this is where an individual's commanding officer deals with the alleged offence. There are certain procedural differences between the Army and the Royal Air Force on the one hand and the Royal Navy on the other. I think that it will simplify our debate today if I refer mainly to the Army's procedures. I shall mention the slightly different position in the Royal Navy where that is relevant.

Summary discipline is an effective means of dealing with minor problems quickly and the vast majority of cases are heard in this way. The Government fully endorse the assessment of the three services: that they need to continue to be able to deal summarily with day-to-day disciplinary issues.

At present, those facing summary proceedings in the Army and Royal Air Force have the invariable right to elect to be tried instead by court martial. This right is slightly qualified in the Royal Navy because of the need to be able to deal with minor disciplinary problems at sea and the problem of quickly convening a court martial on board ship. The increased right to choose to be tried by court martial was introduced in the Armed Forces Act 1996 because of concerns that summary proceedings on their own may not be compatible with the European Convention on Human Rights. In the Army and Royal Air Force, the right of an accused to choose to be tried by a court that

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complies with the convention can be exercised only after the commanding officer has found the charge proved.

If the case is heard summarily, the accused today has no right of appeal to a higher court; instead he may ask for the matter to be reviewed by a higher service authority than his commanding officer. But I believe that it is fair to say that this is not a fully judicial process.

We believe that these procedures should now be changed in two main ways. In the Government's view, it is important that there should be a right of appeal from summary hearings. This seems to us to be intrinsically fairer. Furthermore, we are looking to provide an assured right of access to a court that complies with the convention.

The Bill therefore proposes the establishment of a new summary appeal court for this purpose. This is covered in Clauses 14 to 25. This new court will consist of a judge advocate and two independent officers, generally from the appellant's service, but from outside his or her chain of command. There will, of course, be safeguards to ensure that no one hearing the appeal will have been involved in the case previously.

The procedure at appeal hearings in the summary appeal court will, as far as possible, mirror that of the Crown Court hearing an appeal from a magistrates' court. The hearings will be open to the public. The summary appeal court will not be able to award a sentence more severe than that imposed by the commanding officer.

We wish to avoid any confusion that may arise from the introduction of this right of appeal. As I explained earlier, at present an accused in the Army, being dealt with summarily, is given the option of trial by court martial after his commanding officer has determined that the charge has been proved, but before sentence is passed.

This procedure has certain of the characteristics of an appeal, in that the accused has some idea of what his fate may be when he decides whether or not to involve a higher court. We consider it more sensible to alter the arrangements so that an accused will make the choice between being dealt with summarily or by court martial before the summary hearing. Indeed, this is already the position in the Royal Navy.

This change is covered in Clauses 11 and 12. I hope that your Lordships will forgive me for having departed from the sequence of the Bill, but these particular proposals are more readily understood in the context of the introduction of a right of appeal.

Should the accused decide to be tried by court martial, the sentencing powers of the court will be limited to the maximum that the commanding officer could have awarded had he dealt with the case. This is to ensure that there is no disadvantage, real or perceived, for the accused in choosing to be tried by a court that is independent of the commanding officer and the chain of command.

I want to emphasise that this safeguard does not mean that the accused will be getting off with an inappropriately light sentence. If the commanding

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officer is of the view that the offence is a serious one, he would still be able to recommend court martial trial in the first place.

However, the decision on whether a case should be tried by court martial rests not with the commanding officer, but with each service's prosecuting authority, which broadly fulfils functions akin to those of the Crown Prosecution Service.

Clause 13 and Schedule 2 make the necessary procedural adjustments to cover the powers of the prosecuting authority under the new arrangements for electing trial by court martial. Typical of these is where a case has been referred to the prosecuting authority as the result of a defendant choosing to be tried by court martial, and the authority then takes the view that the original charge is inappropriate. We are proposing that the prosecuting authority may not in normal circumstances alter the charge without the defendant's consent.

This Bill delivers significant improvements to the arrangements for administering discipline in the Armed Forces. It strikes the right balance between preserving the foundations of the system and increasing its fairness. I commend it to the House.

Moved, That the Bill be now read a second time.--(Baroness Symons of Vernham Dean.)

3.33 p.m.

Lord Burnham: My Lords, I do not know whether the Minister is as concerned as I am that she should have to introduce and I should have to respond to the Bill in the face of such a galaxy of five-stars. One of the noble and gallant Lords who is to speak told me today, "We know what we are talking about". I do not know what he and other noble and gallant Lords intend to say, but I hope that the Government listen.

Discussions with regard to the Bill have been directed, irrespective of the desirability of the contents, towards the question of whether it is necessary at all. Might not the contents be enacted by means of a statutory instrument? The Bill, or something like it, has been maturing in a departmental pigeon-hole for a considerable time, long before the Human Rights Act, and it would seem hardly worthy of the pre-eminence it has been given as the first Bill to be debated in your Lordships' House this Session.

I shall not waste your Lordships' time by arguing that primary legislation is not required, but the position is at least arguable. I draw the Minister's attention to the Motion of the noble and learned Lord, Lord Simon of Glaisdale, under No Day Named, stating that the prolixity of the statute book ought to be diminished. Presumably, the Government's argument is that primary legislation is necessary because the Bill demands changes to the Army Act. I should be grateful for the Minister's opinion on that.

During the long series of debates on what is now the Human Rights Act, my noble friend Lord Campbell of Alloway moved an amendment which suggested that the Armed Forces ought to be deleted from the classes of person covered by the Bill. His proposals were not

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carried through into the Bill, but the suggestion has been made that this Bill is necessary to comply with the terms of that Act.

When the ECHR was originally signed in 1951-- I am not sure whether that was under the Conservative government or that of my noble friend's grandfather--France signed only under reserve, excluding the Armed Forces from its application. We recognise that previous events might have forced the Government to legislate somewhat along these lines, but how much better it would have been to enter a caveat 48 years ago.

Our problem is that the Armed Forces, which will be affected by the Bill if enacted, work over a wide and differing field. What may be acceptable in the garrison towns of Colchester and Aldershot may not be practicable or in the least possible at the sharp end in East Timor or Kosovo. Under the terms of the Bill, detention must be authorised by a judicial officer. It is a nice thought to imagine a civilian judicial officer wading through the jungles of East Timor to authorise the commanding officer to put into close arrest a Gurkha who has run amok.

In the debates on what became the Human Rights Act, the noble and learned Lord the Lord Chancellor recognised the problems facing the Armed Forces. He said that the Government would consider designating military courts as the proper venue for the consideration of complaints on ECHR grounds by Armed Forces personnel against the command of the Armed Forces. He said:

    "Special considerations will certainly have to apply".

Article 15 of the convention states that in time of war or other public emergency a state may take measures derogating from its obligation. The problem is what constitutes "other public emergency". If we can agree on that, will the same apply to this Bill?

The Bill would seem to have two main objects. One is to dot the "i"s and cross the "t"s of complying with the European Convention on Human Rights, to which we are bound by previous legislation. In preparing the Bill, the Government have no doubt asked themselves whether court martial procedure under the Army Act is in breach of Article 6 of the ECHR.

This is a tiresome Bill and we shall have strong things to say about it in Committee. But I hope that it will wipe the slate clean and that there will be no further changes necessary under the ECHR or the Human Rights Act. Do the Government believe that they are now doing enough and that this is the minimum they can get away with?

The judicial officer, who plays such a large part in the Bill, will take away much of the control and authority that a commanding officer has over his unit. The amended Section 75C of the Army Act proposed by the Bill would state:

    "If, on an application by the commanding officer of a person arrested . . . a judicial officer is satisfied that there are reasonable grounds for believing that the continued keeping of that person in military custody is justified",

he may authorise it. I presume the commanding officer has no say in the matter at all and the periods for which

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custody may be used are very short. Again, that may be all right in Catterick or Colchester but not in the front line or in a submarine under the polar ice cap.

Sadly, the Bill is an invitation to the barrack-room lawyer. It must be contrary to good order and military discipline to allow such a person an increased forum in our courts. Whatever is agreed, the Bill must not bypass military discipline. The convolutions of the Bill as they stand must encourage the suspect to frustrate the summary disciplinary procedure when he can elect trial by court martial on the most frivolous grounds. The current disciplinary procedure has been shown on countless occasions to demonstrate that only by exercising quick and firm justice can the morale of a unit be maintained. Not only does the procedure laid down in the Bill remove part of the control of a commanding officer but the timing must lead to delay in getting a problem dealt with and finished. It is suggested that real-time video links can be used. That will be a big help in the wilds of East Timor. Furthermore, it must be dangerous to create a process which allows soldiers to complain about their commanding officers and to reduce their authority.

The other main purpose of the Bill would seem to be to consolidate the service discipline Acts. It undoubtedly goes some way towards that, but the Government appear to have shied at the thought of taking it to its logical conclusion. They have not even been able to resolve the dilemma that the Navy's judge advocates are serving officers in uniform while in the Army and RAF they are civilians. One of the reasons given for the introduction of the Bill arises from the decision--which I consider insulting--in the case before the ECHR of Hood v the United Kingdom where it was decided that a commanding officer could not be considered impartial in authorising pre-trial detention. I presume that a naval judge advocate, sitting in uniform and looking like any other officer, is impartial.

Will those "impartial" judicial officers protect or interfere with the commanding officer who has little or no judicial experience? No doubt it will depend largely on the individual but interference with the military ethos is inevitable. Under the terms of the Bill there will be substantial costs and increases in manpower. The Government's own estimates are for 95 additional military personnel, including 53 non-commissioned officers in the Military Police and 37 additional civilians employed by the Ministry of Defence.

The Government seem to have a blind faith that they can conjure men out of thin air. Although recruitment is going comparatively well at present, the chances of achieving a net increase to the projected numbers throughout the services of trained men is negligible. The Government talk of 850 to 900 appeals to the summary appeal court in a year. The mind boggles at the thought. In the classic words of the regimental quartermaster sergeant, "Who's tae pay?" Implementation of the Bill is likely to cost £9 million a year from a budget which is already stretched beyond comprehension. The Lord Chancellor's Department

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and the Home Office, the guardians of the Human Rights Act, will not pay. Yet again the defence budget will have to carry the cost.

Above all, my noble friends and, I am sure, the noble and gallant Lords will require assurances about the maintenance of service discipline as we know it and must have. This is not merely a technical Bill to conform with the requirements of European and other legislation. It is part of the ongoing steady process of wearing away discipline in services where discipline is essential. The noble Baroness has laid down what discipline is, for which I am grateful. I am not sure, however, that she has the implementation of it correct. I shall advise my noble friends to give the Bill a Second Reading, but I do so with some reluctance and with the assurance that we shall have much to say in Committee and on Report.

3.44 p.m.

Lord Wallace of Saltaire: My Lords, we all agree on the importance of discipline and order to the effectiveness of the Armed Forces in peacetime, and, above all, in conflict. We all recognise the quality of the British Armed Forces, their professionalism and their cohesion. We all understand also that command and discipline are matters both of the negative dimension of punishment for those who do not accept orders, and of the positive dimension of the leadership qualities and the morale of those who find themselves part of any unit.

The discipline system of the British armed services has changed considerably over time. The harsh regime thought necessary 200 years ago to maintain order among troops who were largely illiterate and uneducated was of course different from that considered appropriate for a highly skilled, well trained professional force today. Having read a little of the history of the subject, I must say that a certain conservatism within the Armed Forces has resisted changes in the discipline system at each stage that reform has been introduced. That is characteristic of almost any professional service.

The proposals before us represent a further change. The question which we, as a legislative Chamber, must consider is whether they strike an appropriate balance under new circumstances or whether they tip the balance too far against the necessary elements of punitive discipline in favour of the democratic principles of representation and respect.

I thank the noble Lord, Lord Chalfont, for giving me in advance an indication, in an informal conversation last week, of the tenor of what he was going to say today. I therefore spoke over the weekend to a number of contacts who had held senior positions of command in Her Majesty's armed services. I was relieved and pleased by their response, which I shall do my best to summarise.

The first point of which I was reminded was that the role of the Armed Forces in a post-Cold War world is, of course, evolving. We do not for the foreseeable future face the prospect of catastrophic all-out war.

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We are certainly no longer likely to have forces which are out of touch with the home country for extended periods of time. The noble Lord, Lord Burnham, referred to the problems of maintaining that sort of order in East Timor. Many of us have been reading a great deal about the revolution in military affairs over the past few years, including instant communications on a global basis. Even military forces in the jungles of East Timor are not out of touch with the Ministry of Defence or with UK strike command.

The world has changed and moved on and the structure of discipline certainly needs to reflect that. Expeditionary forces today remain in constant communication with headquarters and with the MoD. We are not sending forces to the north-west frontier for months at a time, or to spend weeks sailing around the Pacific, as the "Bounty" did, totally out of touch with any other force.

The second point which various people made to me is that the role of our volunteer and professional forces is to defend democratic values. I was told that we should therefore take care to ensure that they represent democratic values as far as is practicable and compatible with their functions.

Thirdly, I was told that we want our Armed Forces to reflect what is best in our own society. We should note that, among the tasks that we are calling on our armed services to fulfil, we expect them to represent Britain and British values.

In the Queen's Speech debate I spoke about the growth of defence diplomacy and the immensely valuable work that British officers and teams are carrying out across eastern Europe in a number of states of the former Soviet Union, and in Africa where they are training military forces to accept the principle of civil control of the military and the principle of the military as servants of the state rather than of those who wish to take over the state. If we want our services to fulfil and to represent those important tasks, we must ensure that the values within their discipline system are those of which we can be proud.

Can the Minister tell us whether this Bill is likely to be the last one on military discipline to come before the House in this Session? Of course, she will be aware that the matter of gay rights in the military is on the agenda. It has been put on the agenda by the European Court of Human Rights. That is a further issue of civil rights and of the representation of democratic values within the military. Can we be assured that a separate Bill on that will follow shortly?

I have already referred to resistance to change. It is necessary that anyone who is proud of the service within which he or she operates accepts change. However, I believe that warnings of disaster would over-stress the threat of change. The most robust comment that was made to me by my friends over the weekend was that resisting changes in the discipline system is the kind of approach that led the British Army to shoot a number of soldiers who were suffering from shock during World War I. We no longer do such things, but we need to recognise that further reforms must not undermine the changing Armed Forces and

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that they must represent a basis for more highly trained, professional, democratic but nevertheless still effective Armed Forces. I welcome the Bill.

3.52 p.m.

Lord Bramall: My Lords, when the Human Rights Act 1998 was debated in your Lordships' House many noble Lords with personal experience of dispensing military discipline and, I hope and believe, justice, warned that if the Act were applied in precisely the same degree to those under military discipline with particular responsibilities in terms of obedience and duty as it were to those in civilian life with no such responsibility, discipline would be adversely affected when most needed and seriously undermine the authority of the all-important commanding officer. Therefore, there was a strong case for some sort of derogation from the Act for the Armed Forces, as I believe the French have wisely achieved for theirs.

At the time, as the noble Lord, Lord Burnham, has said, assurance was given by the noble and learned Lord the Lord Chancellor that it was not intended or anticipated that the Armed Forces should be so affected and if that appeared likely, special legislation may have to be introduced to correct that.

However, that has not happened. There has been no blanket or partial derogation for the forces. The Human Rights Act is soon to incorporate into our national law those parts of the European Convention that concern the rights and civil liberties of all individuals. The Ministry of Defence has accepted the advice of counsel that to be precisely compatible with the articles of the convention and, therefore, with our national law, the Armed Forces Discipline Bill must now go further than the very sensible 1996 reforms and make major changes in respect of current arrest and summary dealing procedures. Despite the Minister's fine words about the Armed Forces which will be much appreciated, that "re-raises" all the fears originally expressed.

Perhaps I may quickly tell noble Lords who are less experienced than my noble and gallant friends, or the noble Earl, Lord Attlee, and the noble Lord, Lord Vivian, what will happen on the ground. At the moment when a serviceman or servicewoman is brought before the commanding officer on suspicion of having committed an offence, the commanding officer alone decides whether, in accordance with criteria similar to the Bail Act 1976, he or she should be placed in custody pending investigation and trial. If the matter is capable of being dealt with summarily by the commanding officer, it is entirely his decision whether to do that. The accused must then attend the hearing, although if he or she still wishes his or her case to be heard by an independent tribunal before the commanding officer passes sentence, he or she is given the right not to accept the award but to be tried by court martial, which of course can award a greater punishment. In a disciplined society, I believe that that ensures that justice is done.

Under the new Act, let us take the case of, say, two soldiers accused of a disciplinary offence likely to deserve a custodial sentence. If the commanding

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officer considers that the suspects should be held in close arrest prior to charge, within 48 hours he must bring their case before a judicial officer to confirm the period of custody which cannot, without referring back to him again, be more than eight days at any one time.

Before the commanding officer can even start to deal with them, the accused have to be asked whether they are prepared to be tried by him at all, or whether from the outset they want a court martial, which cannot now give a greater sentence than that which the commanding officer can give. Suppose one of the accused says that yes, he is prepared for that, but the other is not, the one who has elected for a court martial will then have to be held, with periodical references to the judicial officer, until the court martial is applied for and convened. The one who is brought up in front of his commanding officer and receives a sentence has a second bite at the cherry and has to be given 21 days in which to appeal against his commanding officer's punishment on grounds of finding or sentence or both.

That appeal will have to go to an entirely new summary appeal court, consisting of a judge advocate and two military officers drawn from outside the accused's chain of command. The accused is allowed to be legally represented and if the commanding officer has awarded a custodial sentence--detention--that sentence would have to be suspended for that 21-day period, although what one would do with the man in the interval is not at all clear.

Try transposing all that to the remotest theatre of operations where judicial officers are in short supply, if they exist at all, and where commanding officers and adjutants have as their first priority operational matters; then try to assess the extra time-consuming administrative burden that will be thrust upon the unit, to say nothing of the slowing up of justice which is not necessarily in the interest of the accused, let alone in the interest of the regiment or unit. Consider the general uncertainty about discipline that will prevail and, above all, the undermining of the commanding officer's standing and authority at a time when his leadership and the confidence that he engenders are all important to the unit's professional performance. The mind boggles. What a licence that would give to what I may describe as the barrack-room lawyers and to the unofficial punishments behind the gym which we have done so much over the years to stamp out--completely, I hope.

I have no doubt, particularly hearing what the Minister has said, that this Bill will provide copper-bottom protection to the Armed Forces' disciplinary procedures against legal challenges in courts and tribunals in this country. For that reason, the Armed Forces may have to learn to live with it, albeit reluctantly. But let us be quite clear: it is doing the Armed Forces no service at all. It will be making their job, particularly the exacting and key one of commanding officer, infinitely more difficult.

First, punctilious compliance will undoubtedly prove--I say this without fear of contradiction--to be grossly expensive both in manpower and financial

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resources. The extra manpower required to administer the summary appeal system, the number of legal staff, judge advocates and the military police that will be needed do not exist and will have to be specially recruited. That may prove difficult. Moreover, to that extra personnel cost must be added the cost of training all concerned in this complicated procedure, the travel involved and the amendment and reprinting of all the existing publications, manuals and regulations. That will amount to tens of millions of pounds and be ongoing, just at a time, as the noble Lord, Lord Burnham, pointed out, when an overstretched budget is being arbitrarily cut by 3 per cent compound interest per annum. That will have repercussions throughout the defence programme.

Secondly, it will greatly add to the administrative burden of units, both in barracks and operational situations, and it will slow up the course of justice.

Thirdly, as I said, it is likely seriously to undermine the authority and esteem in which the commanding officer is held--and he, as we all know, is the key figure in the morale and motivation of a unit on which professional effectiveness depends.

What can be done? A great mistake was made in not lodging a reservation or "opt-out clause" as our more pragmatic French comrades-in-arms did. I believe that it should still be possible to win some exceptions to compliance, provided the Government are prepared to mount a vigorous justification. The two areas I have in mind are, first, the appeal to the summary award and, secondly (as a fallback), a waiver to allow a custodial sentence to be served within the 21-day appeal period.

For example, if the soldier can, at the outset, elect not to be tried by his commanding officer but have direct access to a European Convention on Human Rights-compliant court, surely the right of appeal against the summary sentence--the second bite of the cherry--becomes largely superfluous and a strong justification could be made to dispense with it altogether. That would remove a lot of the objections and uncertainty over discipline as well as significantly cutting down the cost.

If the first fails, the second is that if an accused has no intention of questioning his commanding officer's summary award, he should then be able to sign a waiver allowing any custodial sentence to be served at once without waiting for the 21-day period to elapse. That would certainly speed up justice.

Finally, whatever the outcome--I hope that the Government will seriously consider the points raised in this debate because there is a great deal of experience in this Chamber on these matters--the Ministry of Defence must insist that it be provided with the extra financial resources required to implement any reforms. I gather that the Lord Chancellor, in whose department come all the judge advocates, has firmly said that any extra expenditure on judge advocates must be borne by the Ministry of Defence and not by his department. I hope that the Ministry of Defence, backed by the right honourable gentleman the Prime Minister, will be equally robust with the Treasury over this entirely non-military requirement; otherwise,

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apart from any other damage the Act may do, it will have a knock-on effect throughout the defence programme and achieve what, in the vernacular, one might call a "double whammy".

4.3 p.m.

Lord Craig of Radley: My Lords, I recall during the debates on the Human Rights Act 1998 drawing your Lordships' attention to two specific features of the legislation which concerned me and other noble Lords. One was to do with the way in which human rights cases brought by service personnel would be heard by our national courts under the new legislation. The second was my concern about the progressive upheavals at the very heart of service discipline. On top of the impact of the new human rights' legislation on the Armed Forces Acts, service courts martial and other legal arrangements had had to be changed. There was a climate of uncertainty about the provisions of the Armed Forces Acts.

Responding to those points, the noble and learned Lord the Lord Chancellor sought to allay the concerns which I and other noble Lords expressed. He indicated his willingness to,

    "consider designating military courts as the proper venue for the consideration of complaints on convention grounds by Armed Forces personnel".

The Lord Chancellor appeared to accept that there could be problems for the Armed Forces if local civilian courts were to take a variety of views about similar cases brought before them. However, he went on to say,

    "I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces".--[Official Report, 5/2/98; col. 768.]

I was heartened by what the noble and learned Lord said. Those assurances did much to allay my concerns. But not for long. We did not get the single military court for which I pressed then and subsequently, nor the use of military courts which was hinted at by the Lord Chancellor. In spite of the concerns expressed, we were steamrollered, and civilian courts will be used. Yet another derogation in the authority of the Armed Forces Acts was imposed upon the Armed Forces. So much for the assurances of the Lord Chancellor that there would be no threat to the effectiveness of the Armed Forces. It proved an empty promise.

Now we are considering a Bill which, far from appearing to treat the convention as a flexible instrument, goes to extraordinary lengths to dot every "i" and cross every "t" in the treatment of the convention within the Armed Forces Acts. The detail is mind numbing and the scope for misunderstanding and error seems to be almost infinite. I make no criticism of the drafters of this Bill, but the result of their efforts to apply the convention rules is not a good example of military precision and unambiguous detail. Is that what the Lord Chancellor meant by "flexibility"?

All of us share the high regard which our Armed Forces so rightly enjoy in this country and throughout the world. The Minister expressed that point strongly in her opening remarks. That outstanding reputation

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rests on four pillars. The first is the quality and commitment of the individual as a volunteer. The second is the ethos of his or her service and all that that means in terms of corporate commitment, pride and loyalty to service. The third pillar is the professionalism achieved by the most rigorous and applied training for the operational roles which may be faced. The fourth pillar--I do not put them in any ascending or descending order of priority any more than one could claim that any one of the four legs of a chair was more important than any of the others; all are of equal importance--is discipline, both individual self-discipline and service discipline. If we erode one or more of those pillars, then we start to undermine the stability and professionalism which are the much-admired hallmarks of the British Armed Forces.

I fear that there may be too many in government and advising government without enough experience of the forces who consider that the services must accept, regardless of any impact upon them, all this revision of the tried and tested methods of managing their discipline. But service discipline is an operational as well as a legal matter. I wish that Ministers would heed closely some of the well-founded advice that they have been getting from those who have spent a lifetime in the services.

As I, with others, stressed during the passage of the Human Rights Act 1998, I was concerned that we were,

    "in danger of allowing it"--

that is, the Bill--

    "to undermine the essential ethos, military discipline and responsibility of commanding officers within our Armed Forces".--[Official Report, 5/2/98; col. 762.]

I accept that there is a legal requirement to bring the Armed Forces Acts into harmony with the requirements of human rights legislation, but the Bill seems bent on implementing every jot of the requirements without in any way exploiting in the interests of our professional forces the flexibility of the convention that the Lord Chancellor stressed and prayed in aid to gain your Lordships' acceptance of the human rights legislation as it affected the armed services.

We should be bending over backwards to protect the Armed Forces from any derogation of their strength and quality rather than be bending over backwards, as the Bill seems to do, to knock the Armed Forces into line with every detail of the convention at any cost.

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