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Lord Bramall: I am obliged to the noble Baroness for giving way and apologise for interrupting. She has made great play of doing this in conjunction with the services. It is a reasonable point for her to make. But is she saying that the Armed Forces welcome the Bill? If they do not welcome it--and I know they do not--what are they concerned about, if not that the discipline and authority of commanding officers will in some way be affected, even though it is necessarily because of the European convention?
She makes the point about human rights. I gave that boring little history lesson because I wanted to point out that in the services we had a good deal more concern for our fighting men and soldiers than was often found in civilian life. We were as conscious as anyone of the importance of the individual's self-respect. It is not right to suggest that somehow we are being dragged into the 20th century on man management because it would not be true.
Baroness Symons of Vernham Dean: The noble and gallant Lord asked me whether the chiefs of staff of all three services welcomed the legislation. I disagree with him. My discussions with Sir Charles Guthrie, as the Chief of the Defence Staff, and I understand the discussions that he had with the chiefs of staff of all the services, show that they want the legislation. They think that not having it would render the current disciplinary system untenable. The noble and gallant Lord cannot say, "Oh but if we had not signed up to the Human Rights Act last year they would not say that". We are where we are. That is now law. The circumstances are as they are, that legislation has been enacted. The chiefs of staff recognise that the legislation is important. They welcome it because it is necessary.
I am sorry to be so emphatic with the noble and gallant Lord on this. I did not find what he called his "history lesson" in any way boring, I thought it was extremely interesting and moving. It spoke of all that
But we are dealing now with the end of the 20th century and the human and legal rights that individuals can expect as citizens of this country. Uniquely to exclude our Armed Forces from those rights is not tenable.
The chiefs of staff are equally clear that abandoning the summary justice system would be untenable. The Bill does not do that. One would almost think, from the remarks of some of our noble and gallant friends in the House, that the rights to go to summary justice were being excluded. We all know that that is not the case. All that is being done is to give service men and women the option to go to a compliant court.
The proposals of the Bill are necessary to ensure compliance with the European Convention on Human Rights. I say unequivocally that that is not just my opinion, it is the opinion of the Armed Forces and the chiefs of staff. It is also the opinion of the Ministry of Defence and of leading counsel.
Lord Molyneaux of Killead: The noble Baroness said--I accept her word--that the Chief of the Defence Staff wanted this legislation. First, is it a question of his desiring this legislation, or does he simply accept the inevitable by virtue of his position? Secondly, in my widespread contacts with servicemen at all levels, particularly non-commissioned ranks, and as president of a branch of the Royal British Legion which makes its facilities available to service personnel, I have never been told in response to any of my questions, "Yes, we would like to have this legislation". I do not doubt the word of the noble Baroness, but my impression is different from hers.
Baroness Symons of Vernham Dean: I am not surprised that the impression of all your Lordships is different from mine. I am sure that the noble and gallant Lords in voicing their fears about the authority of commanding officers believe everything that they have said. But that is not a view which is shared by the chiefs of staff. They are absolutely clear that to fail to implement this legislation will render the disciplinary system untenable and that, obviously, we must maintain the authority of commanding officers. The noble Lord raises very much the same question as that spoken to by the noble Lord, Lord Campbell of Alloway. I have been very careful in my approach to this matter. It is always difficult to try to put words into the mouths of others. I deliberately spoke to General Sir Charles Guthrie and asked him what I might tell noble Lords about his views on this legislation. I shall quote exactly what Sir Charles has agreed that I may say in this Chamber. The services at all levels wish to introduce compliant disciplinary procedures as soon as possible. Ideally, they would like
That is what the chiefs of staff have said. They are the ones in the field with current responsibility for Her Majesty's Armed Forces. I am bound to tell your Lordships that there have been disagreements in this Chamber in the past about whether the chiefs of staff really have given certain advice. My mind goes back to debates in this Chamber about Kosovo when it was said that some of the advice that we had received was not tenable. It turned out that it was. I believe that the advice that we have received is trustworthy and merits as much consideration by noble Lords this afternoon as anything else that we have debated on the subject of commanding officers.
Lord Carver: The noble Baroness puts forward a passionate justification for Clause 11 of the Bill. I believe that there is a great deal of exaggeration in the response of the noble Baroness. All we arguing about here is whether a serviceman or woman must choose trial by court martial or his or her commanding officer before any proceedings start or after the individual has been found guilty of the offence charged. I believe it is much fairer that the commanding officer should have the opportunity to find the soldier, sailor or airman not guilty at an early stage or be able to award a punishment--he knows the man or woman--that takes account of both the individual and the circumstances in which the offence was committed. Under the present system, the commanding officer having found the serviceman or woman guilty of the offence on the evidence produced, he then offers him or her the choice of accepting the commanding officer's award or of having a court martial where the matter will be heard again. I believe that that is better for service discipline. It is also fairer than the individual being faced at the beginning with the decision as to whether or not he or she will choose a court martial.
I strongly urge the Minister to think again on the issue. I am sorry to say that the Minister used somewhat extravagant language: that the CO's judgment would be open to constant challenge by the courts. I do not believe that it would. The existing Army and Royal Air Force legislation is perfectly fair. The man has his choice when he knows the decision of the commanding officer. To force the individual to make up his mind prior to that is less fair and less just.
I hope that the Minister will think again on the issue. There is talk that the chiefs think that the provision is marvellous; I know that they do not. They seek to make the best of a bad job. I suggest that the Government discuss this specific issue with the lawyers. If necessary, it can be tested in the court. I would rather that it did not have to be. However, with the leave of the House, I withdraw my opposition to Clause 11 standing part of the Bill.
I believe that I speak for all Members of the Committee when I say that we have no wish to pass any provision into legislation which may run contrary to the terms of the 1998 Act. We could not do so if we wanted to. The noble and gallant Lord spoke gloomily of trying the issue in the courts. We would not wish to make any provision which is not in the convention or the Human Rights Act and which may be considered to be derogatory to discipline.
Amendment No. 86 is curious in that it does not recommend something contrary to the convention. My noble and learned friend Lord Mayhew of Twysden raised the point at Second Reading. He suggested that a court martial should have the power to award more severe punishment than that available under summary procedure. His argument was that a superior court can normally award a more severe sentence than a lower court. He cited the Police and Criminal Evidence Act 1984.
We have been given advice that the powers of the rehearing forum should not be greater than those of the original forum from which the appeal was brought. The amendment does not deal with a rehearing, but with circumstances in which a soldier elects a courts martial or a civilian elects a Crown Court trial. Subject to what my noble friend Lord Kingsland may say, I believe that additional punishment can be awarded.