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Lord Mayhew of Twysden: My Lords, does the noble and gallant Lord agree that Clause 12, which provides that a court martial shall not impose a more severe sentence than the commanding officer could impose in the case of election for trial by court martial, goes quite beyond and against the Police and Criminal Evidence Act 1984? Crown Courts can of course impose higher sentences than magistrates. That is not something required by the convention on human rights and is itself likely to encourage elections for trial by court

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martial rather than by commanding officers--which surely must be deleterious. Does the noble and gallant Lord agree, or is that a false point?

Lord Craig of Radley: My Lords, I am grateful for the noble and learned Lord's intervention. He is of course more learned in the law than I am and I take very much on board the point he has made so effectively.

To add to my unease, the timetable that is expected of the Ministry of Defence to put in place the requirements of the Bill by 2nd October 2000 is ridiculous. There is so much detail to master, resource and recruiting implications, regulations to prepare and promulgate, training and preparation of those engaged in the command chain, and so forth. The bureaucracy of the enterprise is massive. We do not yet know when the Bill will receive Royal Assent. If there are difficulties in the early months, it will not be the Lord Chancellor's Department, which set the timetable, that takes the rap but those in the Armed Forces. They will, as always, do their very best to achieve any task set them by the Government--once again demonstrating the professional commitment we are in danger of accepting without question and which I fear we are seeing eroded as well.

The services are expected to take on board and master a whole new disciplinary regime at a time when there are many operational and other pressures upon them up and down the command chain. If the Bill goes forward in its present guise, surely it is sensible to take it at a less frenetic pace. After all, it is much more than a solely legal, technical issue. Due to the difficulties of getting the civil courts and the appropriate authorities ready, it was necessary to delay commencement of the Human Rights Act 1998 until October next year. Let us make use of the flexibility that the Lord Chancellor drew to our attention. Let us choose a more realistic and later date for the implementation of the new legislation. I hope that the noble Baroness the Minister will indicate that there is flexibility about the start date and in the way that the convention is to be incorporated into the Armed Forces Acts.

The Lord Chancellor has said explicitly that the human rights convention was a flexible instrument. The Government must surely be willing to draw on that flexibility and do all that is necessary to safeguard, not undermine, the authority and status of a commanding officer and the universally admired quality and professionalism of our Armed Forces.

4.14 p.m.

Lord Vivian: My Lords, this is without doubt a most important Bill. In the Third Reading of the Human Rights Act 1998 and in the last defence debate, I alluded to the fact that the consequence of that Act would affect the services discipline Acts unless the Armed Forces could claim some derogation or exemption from some of its provisions. I have always considered that the Human Rights Act 1998 should apply to the services. I would be most grateful if the noble Baroness the Minister will tell the House why the

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Government are unable to support the case for exemption from Articles 5 and 6 of the convention, which have caused the Bill to come before your Lordships today.

I have consistently reminded the House of the essential need for military ethos in the Armed Forces of the Crown. One of the many parts of that military ethos stems from its own form of discipline--which the nation has always recognised as being necessary for our sailors, soldiers and airmen. If that military ethos is diminished in any way by the Bill, the Armed Forces will suffer. It is vital that your Lordships ensure that this House does everything within its power not only to make the Bill workable but to ensure that it is the very best deal that we can obtain for the services and that all their concerns have been addressed.

It is difficult for anyone who has not been in the services to understand why it is so essential that disciplinary matters are dealt with fairly, at speed and in as short a time as possible. Some may think that the Bill is a mere technicality. It is far from that. The morale and efficiency of a regiment depends very much on good discipline and in the way that disciplinary matters are handled. In that respect, your Lordships should ensure that the powers of a commanding officer are not undermined in any way by the Bill and that all the proposed procedures are workable. Although the Bill attempts to do that, are your Lordships completely satisfied that its proposals will not in any way undermine those powers? If not, we must by amendment in Committee improve the Bill to ensure that it does not.

I have read through the Bill and the Explanatory Notes but I have not yet scrutinised the Bill in any great depth. It introduces a provision for a judicial authority to determine whether a suspect or accused person should be held in custody. The Bill also gives the accused an earlier opportunity to elect to be tried by court martial and it establishes an appeals procedure for those whose cases have been dealt with summarily.

Without going into fine detail, I draw your Lordships' attention to the general aspects of custody and matters relating to elections for trial by court martial and summary appeal courts. Currently, a commanding officer has a right--as the noble and gallant Lord, Lord Craig, said--to detain a person in close arrest subject to various regulations. The new regulations in the Bill would still empower a commanding officer to detain an individual in close arrest but they are different and somewhat cumbersome--as has been made necessary by the recent provisions of the Human Rights Act 1998.

In future, if a commanding officer wishes to keep a suspect in custody in excess of 48 hours, he must apply to a judicial officer--who will have the authority to grant this--for the suspect's continued detention. Judicial officers will be found from the Judge Advocate General's Department but it is not clear how the judicial officer will grant a period of continued custody. Will it be possible for him to use signal communications? How will he hear the application for

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extended custody? Mention is made of the possibility of using real-time video links wherever possible, but will that be acceptable in any court of law and work anywhere in the world?

Currently, in all cases, an accused may elect for trial by court martial instead of being tried summarily. The Bill will allow the accused to be offered the right of trial by court martial prior to his commanding officer starting any summary dealings and hearing evidence related to the charge. In my experience, no accused elected for trial by court martial during my period of command, but it may have been that under the existing regulations an accused may be awarded a greater sentence by a court martial than a commanding officer can give. The new rules now state that a court martial may not award a greater sentence than a commanding officer can give. Why has this new regulation, which might encourage an accused to apply for trial by court martial, especially as he may receive legal aid, been included?

It has been pointed out that summary appeal courts will be established in the future to offer to those who have been dealt with summarily by their commanding officer an appeal procedure against finding and sentence. It is not clear why the president of this court has to be a judicial officer. Perhaps the Minister could explain why officers from the Directorate of Army Legal Services, and the equivalent departments in the other two services, could not carry out this responsibility. For that matter, why is it not possible for a senior officer and two other officers from outside the chain of command, but from the same service, to do the same?

It is right to bring to your Lordships' attention, as other noble Lords have done, the heavy costs involved in these changes to current military law. The Explanatory Notes reveal that there may be 850 to 900 appeals to the summary appeal court every year. The estimated costs of implementing the Bill will be in the order of £6.5 million per year, with estimated start-up costs of about £1.75 million. There will be 95 additional personnel, together with an estimated requirement for 37 additional civilians to be employed by the Ministry of Defence. The largest single element of these figures is for an additional 53 non-commissioned officers from the Royal Military Police. Can they be recruited as an overall increase?

In conclusion, the system has become more cumbersome and bureaucratic. The House must ensure that these changes do not lead to delay. To go from one military discipline system, which is expeditious, to a slow and tortuous system would not be in the best interests of any servicemen nor the Armed Forces themselves. It is an expensive change to a system that works well, but it is understood why these changes have to be made. However, any lack of resources will bring a delay, and delays will bring about a serious loss of morale. A serviceman likes to see disciplinary offences dealt with speedily and fairly.

I have one final point to make. Can the Minister give the House an assurance that the additional money required for this new system will not come out of the

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defence budget but from the Treasury, in view of the already known difficulties of the 3 per cent savings in the defence budget? Can the noble Baroness also confirm that it will be possible--as mentioned by the noble and gallant Lord, Lord Craig--to implement this new system by the required date in October next year?

4.22 p.m.

Lord Inge: My Lords, perhaps I may, first, thank the Minister for having the courtesy to write to me outlining some of the changes proposed in the Armed Forces Discipline Bill. It will not surprise noble Lords to know that I agree with much of what has been said, especially the remarks made by the noble and gallant Lord, Lord Bramall. Therefore, I believe I can be brief. However, I should like to highlight and reinforce some of the points that have been made.

I understand why some changes are necessary and why it is necessary to be more compliant with the European Convention on Human Rights. However, I must have been talking to different people from those to whom the noble Lord, Lord Wallace of Saltaire, spoke. The view that I have had quite clearly expressed to me from those in the Armed Forces--be they on the Left or on the Right of the service--is that this is the best deal that they felt they could negotiate.

Perhaps I may just touch on some of the points that have been raised. I turn, first, to the authority of the commanding officer. I cannot stress strongly enough, as has already been said, the critical importance of the commanding officer, both in peacetime and in war; indeed, you cannot separate the importance of the commanding officer in peacetime from that of the commanding officer on operations. Anything that undermines his authority must mean that the great majority of people in his command will suffer. I am quite clear that the proposed changes, especially as regards the summary appeal court, will affect--and have a bad effect on--the authority of the commanding officer.

Secondly, military discipline needs to be responsive; that is, responsive both in the investigation of the offence with which the person is charged and then, after the investigation, in terms of the case being heard and dealt with quickly. There have already been complaints that we are not responsive enough in the military as regards investigating some charges or offences quickly enough. I believe that this proposal will undoubtedly further delay the process of dealing with offences. That will be particularly so on operations. The noble Lord, Lord Wallace of Saltaire, said, "Surely you can talk to people and communicate with them, whether you are in the jungles of East Timor or in Kosovo". Of course you can; but that is a misunderstanding of what the military is trying to concentrate on at a time when on operational service. We should not separate the two situations.

I should particularly like to talk about the summary appeal court, so as to ensure that the changes really make it responsive to Article 6 of the European Convention on Human Rights. When you discuss this

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with the people who are trying to bring in this legislation, they will tell you that, if need be, they will have to hire on an "as needed" basis additional judge advocates to deal with these cases. The idea of people with no experience of military ethos, operations or the military code having to chair such meetings and then bringing in two officers from outside the chain of command to hear their report, will, I believe, not only undermine and create tensions but also mean that the soldiers, sailors and airmen will suffer. I believe that the noble and gallant Lord, Lord Bramall, said that they will be in danger of being taken behind the barrack block, and I have a worry that commanders will not in fact hear such cases. It will become too complicated, so they will not bother. The effects on military discipline will, I think, be very considerable.

Thirdly, as has been mentioned, the costs as regards the additional barristers, lawyers, military men, and so on, who will be required to implement these changes will be considerable--and this at a time when the £9 million needed could be so much better used elsewhere in the defence budget. Like other speakers, I very much hope that the money to fund this will be found outside the defence budget. It would be ironical to bring in such changes and charge them to the defence budget when we know that some of the personnel proposals made under the Strategic Defence Review cannot be funded at present.

Finally, in addition to reinforcing what has been said, I express the hope that the Minister will reconsider some of these changes to see whether they can be improved. It is worth bearing in mind that the Armed Forces are having to deal not only with a very considerably increased operational load at the moment, but also, for very good reasons, they are having to deal with changes--for example, how they handle ethnic minorities, which I totally endorse--and new legislation on homosexuals. Now, in addition, they will have this further task of dealing with the changes under the Armed Forces Discipline Bill. As one regimental sergeant major said to me, "You know, Sir, we're spending more time actually worrying about minorities than we are about most of the people for whom we are responsible".

4.28 p.m.

Lord Carver: My Lords, I should like, first, to thank the Minister for her clear explanation of the Bill. Like my noble and gallant friend Lord Inge, I thank her also for the courtesy of the letter which she wrote on 17th November to members of what I would call "the noble and gallant brigade" to ensure that we were not taken by surprise and could therefore make our plans of attack.

I fully appreciate why the Government had to act quickly to ensure that the service discipline Acts comply with the European Convention on Human Rights. Failure to do so would open the floodgates for barrack-room lawyers, supported by those unscrupulous members of the legal profession who are out to exploit any form of protest from which they can profit, probably on a no-win no-fee basis. They would

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be able to sue not just the Ministry of Defence, but also probably individual commanding officers, for wrongful arrest or custody.

The Government are therefore quite right to act quickly. However, there is no denying that what the Bill proposes tends seriously to undermine the authority of, and trust in, the commanding officer as the fount of both justice and discipline in a military unit. Maintenance of that authority and trust is a vital element in the morale and the efficiency of a unit, especially a combat one. On the battlefield, not only must orders be obeyed, but negligence and idleness cannot be tolerated. It is not just that disobedience or negligence may prejudice completion of the task, but that such acts put the lives of comrades at risk. Of course, a good unit does not depend on the military legal system for its morale, discipline and efficiency. The legal system exists to deal with the less good or with those who, while good soldiers, sailors, airmen or women, go astray from time to time. If it is not clear and easily applied, it opens the door--as the noble and gallant Lord, Lord Bramall, suggested--for unofficial ways of trying to enforce discipline, and that is most undesirable. As several noble Lords have said, it is unfortunate that when the government of the time ratified the convention, they did not--as the French did--recognise this and enter a reservation as to its application to the legal system of their own Armed Forces.

I was not present--as other noble Lords were--when what became the Human Rights Act was debated. I understand that after the amendment of the noble Lord, Lord Campbell of Alloway, was rejected at the Committee stage, he received an assurance that his point was taken and that a special appeal court for the Armed Forces to consider action taken under the Human Rights Act would be established. I hope that the noble Baroness can say what has happened to that assurance; I certainly see no sign of it in this Bill. Incidentally I am delighted to note that the noble Earl, Lord Attlee, is to speak because as far as I know he is the only Member of this House who is presently the commanding officer of a military unit. He will be able to speak with authority on the problems that the Bill will pose for him and other commanding officers.

I accept that any measure to make the service discipline Acts comply with the convention is liable to weaken in some way the authority of the commanding officer. However, I must express my concern about two aspects of the Bill. The first is the question of whether the procedures can actually be made to work. I refer to the constant toing and froing between the unit orderly room and the judge advocate's department almost every other day over every case, the former constantly having to provide justification for keeping the individual in custody and the latter, no doubt, querying aspects of it, or even just delaying a reply. I understand that the service authorities, with the help of modern information technology, hope to be able to make the system work. That may be possible in peacetime conditions, or even in peacekeeping or peace enforcing operations, but I have the gravest doubts about whether or not it could be made to work

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in operations of higher intensity. Would it have been workable in the Gulf or in the Falklands? As I believe the noble Lord, Lord Burnham, mentioned, could it be applied today in East Timor? I certainly cannot see how its application would have been possible when I was a commanding officer in North Africa, Italy and Normandy in the Second World War.

My first appeal to the noble Baroness is for her to send the Bill back to the legal and military experts to see whether a simpler system can be devised dealing with the whole problem of custody before trial which will be workable in operations of high intensity, or whether there can be a different procedure when a unit is declared to be on active service. As far as I recall, the old Army Act had different procedures for a unit on active service. Certainly, all the soldiers' charges began with the letters, "WOAS"--when on active service.

I am even more concerned at the proposal to establish summary appeal courts. That seems to me the greatest potential threat to the authority of the commanding officer. The accused man or woman will already have had the choice of deciding whether to be tried by his commanding officer or by court martial, and will have chosen the former. To allow him then to say that he does not like the commanding officer's decision and to refer either finding or sentence, or both, to a separate court not only fundamentally undermines the commanding officer's authority, but, as several noble Lords have said, will take time and will involve considerable effort and expense.

I draw your Lordships' attention to paragraph 41 of the explanatory notes on the Bill, provided by the Ministry of Defence, which states:

    "The Bill will introduce a right of appeal to a summary appeal court established under each of the three SDAs"--

that is to say, the service discipline Acts--

    "This supplements the right to elect trial by court-martial described in the previous section of these notes, by offering to those who have been dealt with summarily a second avenue to a court that is compliant with the European Convention on Human Rights".

I emphasise the words "supplements" and "second avenue". I suggest that there is no need to supplement or to provide a second avenue in order to comply with the convention. All that is needed is to leave the rule about election of trial by court martial in summary proceedings as it is today under the 1966 army and air force Act; that is to say, that the accused can elect trial by court martial once the commanding officer has found the charge proved. That provides the accused with an avenue of appeal--that is, to a court martial--against finding and sentence. It is only the unnecessary change proposed in Clause 11 to the right of election before summary proceedings which might--although I doubt it--justify the establishment of summary appeal courts.

I therefore urge the noble Baroness to take the Bill back to the Ministry and get the legal experts to remove Clauses 11 and 14 to 25. If they have doubts about whether or not a second avenue is needed, let it be tested in the courts after the Bill without those clauses has been passed, when a case is brought, if it is, on the grounds that the absence of an avenue of appeal

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from a commanding officer's summary award is in breach of the convention. That is, I believe, the most practical and best way forward to get rid of the undesirable establishment of summary appeal courts.

4.38 p.m.

Lord Chalfont: My Lords, it is perhaps not surprising that at this time of day when so many noble and noble and gallant Lords have spoken, there is not much left to say. However, I recall someone saying during the passage of the House of Lords Bill that everything that needed to be said on that subject had already been said, but that not everyone had yet said it. I hope therefore that your Lordships will forgive me if I add a few comments to those points which have already been made by noble and noble and gallant Lords.

Before I do, I shall point out something which may be of interest to political historians. I mention this more mischievously than maliciously. Throughout the debate the number of Chiefs of Defence Staff in the House has outnumbered the population on the government Benches. I ask noble Lords to draw no especial conclusion from that; I mention it as a point of historical interest.

I begin by picking up something that the Minister mentioned in her opening remarks about the need to bring the Armed Forces within the general ambit of this kind of convention and this kind of legislation. I hope that the Minister and the Government will bear in mind that the Armed Forces are not like the rest of society. Officers and soldiers in the Armed Forces are not like lawyers, politicians or shopkeepers; they have a different culture and a different ethos which need to be fully respected. The ethos comes from one simple fact: soldiers, sailors and airmen have an unlimited liability; they put their lives on the line in the performance of their daily duties. For that reason, the ethos and culture of the Armed Forces should be taken very seriously. It is not self-evident that the principles of human rights and justice which apply to the rest of society necessarily should apply to the Armed Forces.

In that context, perhaps I may mention something which the noble and learned Lord the Lord Chancellor said in the debate on the Human Rights Bill in 1998. This has not yet been mentioned. He said:

    "The Secretary of State for Defence takes the view that the Bill raises no issues which are special to the Armed Forces".

It was possibly on this advice that the noble and learned Lord the Lord Chancellor went on to say that the Human Rights Bill,

    "poses no threat to the effectiveness of the Armed Forces".--[Official Report, 5/2/98; col. 768.]

I suggest that that is at least a matter of opinion. In my opinion, the Bill poses a considerable threat to the effectiveness of the Armed Forces.

I underline what has been said already about Clauses 11 and 12 and Clauses 14 to 25 of the Bill. As far as concerns Clauses 11 and 12, your Lordships have been told that it used to be the case that when a soldier, sailor or airman was brought up on a charge in front of his or her commanding officer, the

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commanding officer heard all the evidence and arrived at his conclusion as to guilt or innocence and then said to the accused "Will you take my award, will you take my punishment, or would you rather the matter went to a court martial?" Now, under the new dispensation, the accused will have the right to elect for trial by court martial before the commanding officer has heard the evidence and reached his conclusion. This would seem to mark the beginning of the erosion and the status of the commanding officer.

That is further undermined in Clauses 14 to 25 by the setting up of the summary appeal courts. As your Lordships will know from the Bill, the summary appeal courts will consist of a judge advocate and two officers not connected with the chain of command. In choosing whether to take a summary process of trial by the commanding officer, the accused now has 21 days in which to decide whether he or she will go to the summary appeal court.

The first point I should like to make about that is that the delay will undermine the justice process in the Armed Forces. One of the great things about the administration of justice and discipline in the Armed Forces--in the Army in my context--has been that justice is done quickly and is seen to be done quickly. Any delay is bound to be bad for morale and bad for the perception which a soldier, sailor or airman has of the efficiency and discipline of the unit in which he or she is serving.

There is no need for me to go further because the points against the Bill have been forcefully made already. It has been pointed out that we are now administering a new layer of bureaucracy across the top of the whole of the proceedings of Armed Forces discipline. That is self-evident from the provisions of the Bill. With that, obviously, goes delay. It is inevitable that justice in the Armed Forces will not be quick, will not be summary and will not be seen to be fair and expeditious. There will be delays, and these will have their effect on morale.

Finally, there is the matter of cost, a point which has been made very forcefully by a number of noble and gallant Lords. The summary appeal courts are to have not only extra officers assigned to them, but a judge advocate also. As noble Lords will see from the Bill, these judge advocates must have had at least five years experience as qualified lawyers. Such animals do not come cheaply; one cannot get qualified lawyers of five years' experience to come into the Armed Forces without paying them, and paying them very highly.

It may not be a matter for the Ministry of Defence to decide, but, in that context, I should like to know what the Ministry of Defence understands about the defraying of the obviously very considerable extra costs which will come about as a result of the Bill. Are these costs to be borne by the defence vote? If so, as noble and gallant Lords have already said, an already overstretched budget, which caters for already overstretched forces, will become further overstretched, to the great detriment of the Armed Forces and the effectiveness of our services.

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Having said what I think about the Bill, I conclude by saying that the Ministry of Defence has made the very best of a bad job. As the noble and gallant Lord, Lord Carver, said, it has acted quickly and it has produced something which, within the constraints of the requirements of the Bill, is comprehensive and clear.

There may be those who, like me, believe that not all of us--and certainly not all of the Armed Forces--should automatically be subject to the provisions of conventions such as the European Convention on Human Rights, or even the Human Rights Act 1998. However, at the moment, it is not profitable or productive to start talking about derogation from the European Convention on Human Rights or from the Human Rights Act. It is now fairly clear that the Armed Forces have to be brought within those constraints. As I said, the Ministry of Defence has gone about this in a constructive way. It is a duty it would perhaps not have chosen had this been a matter entirely for the Ministry of Defence. But it has approached the matter in a constructive way and we should now concentrate on some of the bad, weak points which have been underlined, such as the 21-day period in the course of an appeal to the summary court of appeal, and the circumstances in which an accused soldier, sailor or airman may elect for trial by court martial rather than for trial by his or her commanding officer.

I suggest that we should now move forward with the Second Reading and--if it is not too much of a military analogy--hold our fire until the Committee stage of the Bill.

5.49 p.m.

Lord Hardy of Wath: My Lords, perhaps I may say a few words in the gap--not from the point of view of considerable military experience but as someone with considerable admiration for our Armed Forces today and with an interest in military history.

Not long ago I was reading about a debate in your Lordships' House in which a large number of very senior officers, perhaps five-star, took part. It was a debate on the retention in the Armed Forces of the death penalty for desertion. A substantial number of them spoke and, in a modern context, their words were not attractive. In those days, the services may have relied on discipline and fierce regulation--inculcating perhaps a greater fear of the superior than of the enemy--but that has changed. It has changed because of the development of man-management and a greater sensitivity in the Armed Forces. People serving today do not have the fear of punishment, of superiors and of court martial that may have once been the case. Without wishing to embarrass the noble and gallant Lord, Lord Inge, the Green Howards were not run so much by fear as by their respect for the noble and gallant Lord when he was their commander. I know that to be the case because at that time a number of my constituents served in his regiment. Nevertheless, I believe that one point that has been made needs to be considered by my noble friends; that is, the provision in Clause 12. As noble Lords have already said, respect

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for the commanding officer must be maintained; he occupies perhaps the most important position at any given time, and certainly when active service is being pursued.

I believe that my noble friend might also receive with sympathy the argument that the cost should certainly not be met from the defence budget. When I served in the Commons and my constituents asked me whether they should pursue a matter in the law, I would always tell them that if they could avoid that course they should do so, unless, of course, they were very wealthy. The services are not very wealthy at present and I trust that my noble friend will take due note of that particular request from noble Lords.

4.50 p.m.

Lord Renton: My Lords, I regret that I was not able to be present at the start of the debate owing to family reasons. However, I believe I should mention that I am one of the few people still living who attended the European Council when the European Convention on Human Rights was being considered. Indeed, I was closeted with M. Rolin, the Belgian lawyer who represented Dr Mossadek at The Hague in order to agree with him--and eventually it was agreed by all concerned--the powers of the European Court of Human Rights.

I feel obliged to mention that at that time--it was just a few years after the war--I do not believe that members of any party in this country gave a moment's thought to the effect of the convention on military discipline. But now we must consider it. I believe that the Government must review the convention and our acceptance of it in order to ensure that military discipline is maintained. Speaking as a lawyer, naturally on occasion there has been--I remember it well during the war in which I served--a conflict or an apparent conflict between discipline and justice. That is very difficult to avoid. But I believe that especially in time of war--and we should be thinking in terms of the application of this Act in time of war--discipline must if necessary prevail over justice.

4.52 p.m.

Earl Attlee: My Lords, before I speak to the Bill, I remind the House that I have an interest as I am a serving TA officer and I have delegated powers of summary jurisdiction. Noble Lords should be aware that I would make the same speech on whatever Bench I happened to be sitting. I apologise in advance if I test your Lordships' patience. I should like to join with the Minister in her fulsome praise of our Armed Forces. From my very modest experience, I can agree with every word that she said about their activities.

The Minister has marketed the Bill as being technical and one which we have no choice but to implement. However, it is anything but technical or intrinsically beneficial, as she put it. It forms part of the process of salami-slicing our military capability in a variety of ways, each little stage appearing to be perfectly reasonable. I am sure that the Minister understands her brief on the Bill, and in detail. But

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when she introduced the Bill I was not sure whether she understood the nature of our military ethos and the need for robust service discipline arrangements. However, she did cover her points in her usual highly effective manner.

Moreover, the public has little understanding or experience of military matters, and that is reflected in the composition of another place. The public knows that we have the Challenger 2 main battle tank, RAF Tornadoes, HMS "Invincible" with her Harriers and the Special Air Service, and it believes that this combination will defeat any opposition. All noble Lords who have spoken know that that is not the case and that military operations can go horribly wrong. The worst case scenario is that civilians will be called up for compulsory service, as happened quite properly during the last war.

Although we have a galaxy of talent and expertise, it is unfortunate, to say the least, that no one outside the "military club" has put their name down to speak to the debate. I am sure that the debate would have been less one-sided and better informed if some noble Lords with interests in human rights had been able to speak to support the Minister. I am grateful to the noble Lord, Lord Wallace of Saltaire, as he has provided some comfort to the Minister. No doubt the Minister and others outside who listen to our debate will feel that this was the officer class--and at a stratospheric level at that--defending its position at the expense of junior ranks.

In my case, I spent 18 years as a junior rank in the TA. In fact, the highest rank I achieved was corporal. I enjoyed myself enormously, worked closely with regular soldiers and saw no need to seek an early commission. My military role models were regular NCOs. As soldiers, we certainly talked about the disciplinary arrangements and we all agreed that one could not "beat the system", despite the advice of the barrack room lawyers; and we were content with that situation. But, to put it bluntly, the Army is a hard taskmaster. Indeed, I found myself on the receiving end of summary jurisdiction. Once I lost my camp bed and later on I lost my ID card. I was also a prosecution witness in one minor case. It was interesting to note that afterwards, when it was all over, we all shook hands and adjourned to the bar after final parade. The whole matter was over and finished within seven days. The new arrangements inevitably will introduce considerable delays and that will always be undesirable.

I am now the OC (the officer commanding)--a humble field officer--and I have to administer summary jurisdiction on behalf of my commanding officer, most recently last Tuesday. It is not a pleasant duty as it is more of a disciplinary procedure than a perfectly developed system of justice. One is punishing one's own people. Sometimes it is even necessary to discipline first-rate soldiers, especially for what I would call technical offences such as loss of ID cards. However, if I were either to abuse my powers and act unjustly, or if I did not have the moral courage to exercise them when required, I should soon lose the

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trust and confidence of the men under my command and morale would suffer badly. The same would apply to any officer, regular or TA, in a command position.

The Bill impinges on two aspects of military law. As implied by the Minister and others, the court-martial system is reserved for the more serious offences that could attract substantial periods of detention, prison, heavy fines or other significant penalties. We know also that a solider can elect to go for court martial rather than accept summary jurisdiction. I believe firmly that the court-martial system should be as well developed a system of justice as possible, while at the same time being militarily effective.

I have served as a member of a few courts martial and it is a very dry and clinical business. Even so, I was struck by the way in which the accused, who is still innocent, is marched in without belt or head gear and under escort. It appeared to me to be degrading and I could not see how it improved the administration of justice. The Bill might not be an ideal vehicle but we shall look at that point during its passage and at the time of the quinquennial review.

During the winter of 1997-98, I had the honour to serve with the Regular Army in Bosnia. However, it was not what I would call a "hot" operation, so I have never experienced the challenges that other noble Lords have faced. Morale in camp was nearly always high, but we suffered one incident of misconduct which had the potential to be very serious indeed. It would not be helpful to describe exactly what went wrong but the full power of the commanding officer was required to deal with the matter and to apply an appropriate sentence.

On the day on which the commanding officer dealt with the charges, the mood in camp was understandably sombre. The soldiers each received a very heavy fine, but I have to say that no one else was going to make the same mistake. The essential point to note is that the next day morale had almost completely recovered and the whole affair had lasted less than seven days--from start to finish. Thus both discipline and morale were maintained at the same time. It is the current system that made that possible. It is important to remember that in a service unit the witnesses will meet the accused, his friends and colleagues on a daily basis. Contrast the service system with how long it would take to deal with a drink-drive offence at home.

Turning to the Bill itself, Clauses 1 to 8 are relevant only to very serious cases and the new arrangements are welcome apart from the fact that they are unworkable for operations. From my experience, they would be very challenging for our relatively stable peacekeeping operations in the Balkans. What would happen if the operation or even the campaign was not going very well? A unit may be trapped behind enemy lines or just very isolated. What would happen about a small detachment on South Georgia in winter? The Explanatory Notes pray in aid video links. The Minister's faith in our G6 communications capability at unit level is touching. It would be nice if for operations we had a secure and efficient means of electronically transmitting reports and returns data

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from sub-units up the chain of command. We shall be tabling suitable amendments to relax the new arrangements for operations in order to avoid the risk of servicemen having to be detained without legal authority.

Clauses 14 to 25 are, to an extent, consequential on later clauses giving the right of appeal from summary jurisdiction. As explained by the Minister, they give an earlier right of election for court martial, but I do not think that is helpful. For instance, the commanding officer may want to deal with the matter summarily and hear the evidence, possibly because of a local legal requirement, but he may be minded to dismiss the charges. That often happens with road traffic accidents, especially serious ones and ones overseas. Of course, the new arrangements fly in the face of government policy regarding restrictions on the civilian's right to elect for full trial in cases which are triable either way. Under the new arrangements, the soldier could elect for court martial before the commanding officer had an opportunity formally to dismiss the charges even though he was minded to do so in the first place.

Currently, a serviceman can be more severely dealt with by court martial if he elects for it. Under the Bill, he can receive no greater punishment than the commanding officer can give so there is no disincentive to elect court martial; and of course that is the Government's intention, as the Minister explained. If a soldier absolutely insisted on election for court martial for a minor offence, such as loss of ID card, it is unlikely that it would ever happen due to the backlog of more serious cases.

Clauses 14 to 25 are the most objectionable in the Bill as they dilute the authority of the commanding officer and his sub-unit commanders, as noted by many noble Lords. In theory, they confer greater rights on the serviceman; but in practice they will disadvantage him. Take, for example, the Balkans situation that I have illustrated. The commanding officer had to maintain discipline and morale or else risk compromising the success of the operation. If, after being disciplined, one of the soldiers decided not to take it on the chin and spent the next three weeks telling the whole world that it did not matter as he would appeal the sentence, the commanding officer would have failed in his mission. I submit that in the future the commanding officer in that situation would simply remand the soldier for court martial and have the soldier posted back to depot in the UK. The case in question would be easy to prove in a cold, stark court martial centre in the UK and the soldier could expect two months' detention in the military correction centre at Colchester and with no pay. Furthermore, the soldier's career would be ruined or at least held back for two years. Put in that context, the actual outcome seems quite lenient.

I have another worry--I put it no stronger than that. The worry is this: if NCOs find out that their commanding officer or officer commanding cannot effectively operate a disciplinary system, they will inevitably resort to illegal alternatives. There will not

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be the court martial option for them. The noble and gallant Lord, Lord Bramall, and others have touched on that point.

Clause 9 would allow a deserter to obtain bail after he was apprehended. Noble Lords will easily be able to imagine the circumstances where that could be deeply damaging to the morale of the unit preparing for operations. I wonder whether the Minister can tell the House in what circumstances she thinks it would be appropriate or necessary for the magistrate to grant bail.

The fighting power of Her Majesty's Armed Forces is composed of three parts. First, there is the physical component; that is, the quantity and quality of the hardware, for which of course the Minister is responsible. I am sure that she works tirelessly to obtain the best solution. Secondly, there is the conceptual component; that is, the strategy, tactics and planning that are developed in order to fight smart, as it were. Finally, and most importantly, there is the moral component; that is, the military ethos, of which so much has been said today. The military ethos cannot be rapidly changed for "hot" operations. The ethos of today is what one has to go to war with, a point made by the noble and gallant Lord, Lord Inge. History is littered with examples of armies that were both physically and conceptually superior to their opponents, but were nevertheless defeated by opponents that attached greater importance to the moral component of fighting power.

In conclusion, soldiers are not merely civilians in uniform. They form a distinctive group within our society that needs a completely different ethos and legal system if it is to succeed. No other group of our society is required to be prepared to kill and destroy others, in wider circumstances than immediate self-defence, and knowing that they may well take a significant proportion of casualties themselves in doing so. If UK governments are not prepared to sustain the moral component of fighting power and recognise the need for servicemen to operate under a more robust legal system, they must prepare themselves to lose battles and have unsuccessful military campaigns. I do not share the rosy view so well articulated by the noble Lord, Lord Wallace of Saltaire. If my worst fears were realised, I do not believe that the British public, in hindsight--that perfectly developed art--would accept that the European Convention on Human Rights should ever have been interpreted in a way that damaged our military capability.

5.10 p.m.

Baroness Symons of Vernham Dean: My Lords, we have had a useful and constructive Second Reading debate on the Bill. We have had many useful insights into some of the issues that are likely to be debated in Committee. I had anticipated that the quality of attention brought to the matter by noble Lords would more than make up for any shortfall in the number of those contributing to the debate. I am pleased to say that that has indeed been the case and I am extremely grateful to all noble Lords for bringing their wisdom

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and experience to bear on our discussions. Like the noble Lord, Lord Burnham, I am impressed by the array of not only noble, but noble and gallant colleagues who have given us the benefit of their thoughts. Your Lordships may be assured that I have listened very carefully to the arguments that have been put today.

I disagreed quite fundamentally with the noble Earl, Lord Attlee, on one point in his contribution. The noble Earl commented that the British public believes that the effectiveness of our Armed Forces somehow relies on their tanks, aircraft and ships. I really do not think that the British public is that naive. It is well understood that the question of discipline in the Armed Forces is absolutely crucial to the effectiveness of those forces. Perhaps I may say that the argument put with such characteristic succinctness by the noble Lord, Lord Chalfont, when he said that the heart of this debate is the balance between justice and discipline, is the key issue here. We shall seek to strike the right balance between what on the one hand is right for individuals, and on the other hand does not compromise the effectiveness of the Armed Forces. Furthermore, I thank the noble Lord, Lord Renton, for having so clearly brought that most important point to our attention.

First, I shall address some of the detailed points that have been raised by noble Lords before returning, towards the end of my remarks, to what I believe is the essential point on the role of commanding officers and others. The noble Lord, Lord Burnham, opened by asking whether we really need the legislation before us. I have to say to the noble Lord that we do need it to amend the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. Primary legislation is required because no powers for secondary legislation are provided in those measures.

The noble Lord also raised the question of the European Convention on Human Rights and whether we should again examine the possibility of derogations from that convention. That point was also addressed by the noble Lord, Lord Vivian. Noble Lords will be aware that the United Kingdom ratified the European Convention on Human Rights in 1951 without derogations from the convention itself. We do not believe that any derogations are necessary. It is important to remember that derogations would require renegotiation of the convention and that would need the agreement of all parties to the convention. The Government do not believe that there is a case for that. We believe that members of the Armed Forces are as entitled as all other United Kingdom citizens to the protection of their fundamental human rights through the law. However, that does not, of course, mean that those rights should be allowed to jeopardise the operational effectiveness of the Armed Forces, or indeed that they would so jeopardise their operational effectiveness.

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