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Lord Elton: We are in Committee and therefore I do not think I need apologise for coming back to this point or for speaking from a certain background of ignorance. What has concerned me about the exchanges--I refer to the point made by my noble and learned friend Lord Mackay of Drumadoon--is that we have been referring only to our own difficulty in dealing with the legislation. But where it matters is in the field. Officers--quite junior officers--will be expected to untangle this great web of legislation. They will be expected to know what to do and how to restrain or to keep in custody people from their own service, let alone of another. I would be much more comforted by news of how that difficulty is to be resolved.

Baroness Symons of Vernham Dean: I agree with the noble Lord, Lord Elton. It is important that those in the field, at whatever level, understand the discipline under which they are operating. There will need to be proper understanding within all three armed services of any changes brought about by the legislation. The services at all levels want to introduce the compliant disciplinary procedures in the Bill as soon as possible. Ideally, they would like the revised procedures introduced in the current legislative Session. I can tell the Committee that that is the firm recommendation of the chiefs of staff. If such legislation is to be enacted, of course it is then incumbent on the chiefs of staff and those who support them, and indeed the civilian administration, to ensure that the provisions are properly understood, not only by such people as your Lordships but also, as the noble Lord, Lord Elton, said, out in the field where it really matters.


Lord Peyton of Yeovil: I have no wish to quarrel with the noble Baroness. She listens with care and answers with courtesy and intelligence. What more could one ask of a Minister--except perhaps that she should utter the very simple words, "Yes, of course I accept this". She disappointed me in that rather important point.

First, I was sorry that the noble Lord, Lord Molyneaux, found it difficult to understand the purpose of my amendment. I thought it was so clear that I did not need to go into it in any detail. We wanted to avoid the unfortunate people who will have to handle the legislation being faced with too many documents, all of them complicated, at the same time.

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I echo the point made by my noble friend Lord Elton. I am not in the least concerned with parliamentary convenience. Some of us are quite good at complaining. I am not very good at it. I am sure that I shall learn in time. We do our best to raise our voices every now and again when we are singularly ill treated by authority. At least we have a means of redress. The unfortunate commanding officer faced with the problem will have no such means of redress. He will simply be saddled with the various fragments of this indigestible lump. I hesitate to use the word "consumer" about anything so indigestible, but I have considerable sympathy with the ultimate user of the legislation. I invite the Government to show the same sympathy and understanding as are clearly felt by those who have spoken to the amendment. I am not sure that the noble Baroness's reference to the quinquennial Act took me too far down the road to understanding what will happen. I do not know exactly how that Act will help and whether it will meet the point that I raise.

Towards the end of her remarks, the noble Baroness used the phrase, "a major undertaking". I am not sure that I am all that sorry about asking the Government to carry out a major undertaking. If there were some more effective deterrence to governments before they put forward ill-thought-out and incomprehensible legislation I should be happier.

I am grateful to noble Lords who have taken part in the debate for their eloquent support on the simple but important point enshrined in the amendment. I am grateful to the noble Baroness for having gone as far as she has and in the way that she has. I still hope that she will consider the point again and chide her department a little. She might also remind her department that, after a long struggle, it is now a unified Ministry of Defence and that co-ordination is its business. Co-ordination is one of those "boss" words used by Ministers when they have nothing else to say; they say that their job is to "co-ordinate". There is one thing of which we can be certain: any time that anyone starts co-ordinating anything, whether it be road traffic or armed forces, they will encounter the objections of people who do not wish to be co-ordinated. Again and again, governments meekly surrender. I shall consider carefully whether to return to this point on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Burnham moved Amendment No. 2:

Before Clause 1, insert the following new clause--

("Active service exclusion

. Engagement under active service conditions on the part of a person to whom the provisions of this Act would otherwise apply shall constitute for the purposes of Article 15 of the European Convention on Human Rights 1951 and the Human Rights Act 1998 a state of public emergency in relation to that person.").

The noble Lord said: It is interesting to note how the various parts of the Bill link together. Both my noble friend Lord Peyton and my noble friend Lord Elton

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spoke to this amendment. The amendment is grouped with Amendments Nos. 3 to 14 and 77. They fall into separate groups.

I must confess that I started off by looking at the Bill with regard to the difficulties of implementing it, if it is enacted, in the field. It is a problem. I am sorry that the noble Lord, Lord Annan, is not in his place. He seems to confuse undergraduates and soldiers. He seems to think that everything that can be applied to an undergraduate can be applied to a soldier, and vice versa.

There will be many occasions when it will not be possible for this legislation to be operated because of the nature of the service. At Second Reading, a number of speakers, including myself, referred to problems in the field. We shall come in due course to the question of video links, which is dealt with in a later amendment. I am sorry that my noble friend Lord Vivian is ill and is unable to be present. He and my noble friend Lord Attlee, as the most recent serving soldiers, have the best knowledge of what actually goes on.

My Amendment No. 77 makes it clear that in no way are we attempting to get out of applying justice in the way in which it is envisaged by the European Convention on Human Rights or the Human Rights Act. What concerns us in these amendments is the timing, and that it is just not possible to operate in the manner prescribed.

I shall be interested to hear what my noble friend Lord Campbell of Alloway has to say on the matter raised in Amendment No. 2. On the basis of the principle behind the amendment, he originally added his name to it before actually seeing it, and has since withdrawn his name. I recognise clearly that Article 15 of the Convention on Human Rights refers to,

    "a war or other public emergency threatening the life of the nation".

In no way is it considered that in many cases where we should wish to implement Amendments Nos. 3 to 14 is there a public emergency threatening the life of the nation. However, there are plenty of matters of a lesser nature which are extremely important.

Section 224 of the Army Act would allow the discipline provisions, if this were applied, to be operated for discipline in Northern Ireland, where in the past the definition of active service used has included armed mutineers, armed rebels, armed rioters and pirates. Other parts of the Bill refer to international conflict. I appreciate that it would be difficult to argue that the work of the Armed Forces in Kosovo was, in the words of the convention, a

    "public emergency threatening the life of the nation".

The amendments are slightly different. Amendment No. 2 is an overriding amendment and its purpose is that there should be a derogation when Article 15 of the European Convention on Human Rights is involved. In those cases it may be that the Bill is unenforceable. The other amendments deal with active service conditions; they roughly propose the same and

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we are trying to change the timing. Amendment No. 77 makes it clear that we are not trying to get out of it. The amendment states that if the time limits are,

    "disapplied by reason of active service conditions, [they] shall start to run twelve hours after the person arrested or the unit in which he is serving ceases to be on active service".

Amendment No. 2 is a matter of principle, Amendments Nos. 3 to 14 are not; they are practicalities. I hope that the noble Baroness will give consideration to the serious problems which will arise as a result of the Bill as it stands. With that, I beg to move.

12.15 p.m.

Lord Campbell of Alloway: My Lords, there are difficulties with Amendment No. 2, but the Committee may believe that Amendments Nos. 14 and 77 are wholly requisite and well founded. The difficulty presented by Amendment No. 2 is this. My noble friend says that it is an overriding amendment and there should be some derogation from Article 15. The difficulty is that, to be effective, derogations from Article 15 have to take place at the time that the convention is ratified. They cannot be introduced by the domestic legislation of member states in any event. Article 15 relates to measures taken by the high contracting parties in a public emergency in which the life of the nation, the high contracting party, is threatened. It is not in any way concerned with the situation affecting an individual person.

The amendment proposes an interpretation of Article 15 which it cannot bear. It would not be appropriate to seek to re-write the provisions of Article 15 or the 1988 Act as proposed by the amendment. Although this is a domestic statute, the Armed Forces discipline purports to implement other provisions of the convention.

I thank my noble friend Lord Burnham for tabling Amendment No. 2 because, as a probing amendment, it affords a valuable opportunity to discuss a practical omission from the Bill. I know that there are certain amendments, which I support, that Clauses 11 and 14 to 25 should not stand part. But let us assume that they do stand part. Amendment No. 89, in my name, concerns the appellate courts martial courts and deals solely with matters of the convention. Let us assume that it is rejected. As for some kind of exclusion clause, behind the concept of my noble friend Lord Burnham, there is the introduction of an exclusion clause. We should have an exclusion clause applicable to discipline in Her Majesty's Armed Forces engaged in armed active service, including peace-keeping. That is one of the reasons that Amendment No. 14, introduced by my noble friend Lord Burnham, is of such importance.

It is much to be doubted whether such an exclusion clause in our domestic legislation would be considered by the Commission or the Court of Human Rights to be in breach of any article of the convention. Let us take the following situation which is new, relevant and must be considered. Our Government and the French Government propose to enter into a joint enterprise

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and set up a rapid reaction force. I gather that it would be quite sizeable, 60,000. It is important that there should be no disparity of treatment as regards discipline as between members of that force. The noble and gallant Lord, Lord Carver, took the point on Second Reading that we know that France has opted out of the convention. We have not done that. The amendment which I proposed originally, which in a sense started this, did not seek to do that and I shall deal with it. It simply sought to remove the Armed Forces discipline problem from the fast-track procedure. The question of us opting out of the convention was never part of the argument.

It would be difficult to say so, but I cannot see that in the circumstances of the joint venture between the French and the English, the European Court of Justice could accept a form of substantial disparity in treatment. I suggest that the Court of Justice would not find an exclusion clause, roughly along the lines I proposed, in breach of any article of the convention. I thank my noble friend Lord Burnham for his probing Amendment No. 2, which gives an opportunity for discussion of that aspect of the matter if Members of the Committee so wish.

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