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The Countess of Mar: My Lords, I am glad that the noble Lord has made the position clear as regards the position of farmers and their incomes. Speaking as a farmer's wife, all we seek is a fair price for the products that we produce. Whichever way that is met, that is all that is necessary.

Will the noble Lord answer the question put to him by the noble Lord, Lord Dixon-Smith, regarding who is responsible for selecting the sites for the funeral pyres and the burial of animals? The Minister said that his department was responsible for the landfill sites, but he has not said who is responsible for the other sites. We have seen horrendous sights: bonfires; dismemberments; half-burnt animals swinging in the air on the end of cranes; and animals being disinterred

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from burial sites. These events have taken place because of the incorrect selection of sites. How many more times will this happen?

Lord Whitty: My Lords, I indicated earlier in my remarks that certain sites may have been wrongly identified. Furthermore, the Environment Agency and other bodies have to ensure that the environmental impact resulting from the use of such sites at the levels originally proposed does not have undesirable effects on water quality or air quality either immediately or in the medium term. For that reason, some restrictions have been imposed on the use of such sites. We are confident that we have now identified sites which are appropriate, both for landfill and for mass burning. We shall use those sites, not necessarily as intensively as might originally have been thought, but in a manner that will not generate public health problems or have long-term effects on drinking water standards.

Armed Forces Bill

Second Reading debate resumed.

4.57 p.m.

Lord Craig of Radley: My Lords, the quinquennial review of the service Acts is an important reminder that the Armed Forces have a unique statutory position in this country and in society. I do not need to spell out in your Lordships' House why that should be, or that, so far as the Army is concerned, it goes back to the Bill of Rights 1688.

It is of course important that the service Acts are reviewed and kept in line with developments in the criminal law as they affect the rest of our society. Traditionally, this has led to amendments to these Acts tracking other legislation, but at a respectable distance, as it were, from the dates of enactment. Apart from the delays imposed by the legislative timetable, it seemed to be sensible--indeed, prudent so far as the armed services were concerned--to see how the new legislation was developing in its application, and a framework of caselaw had evolved. Given an interval of a few years, it would then be time to incorporate those aspects of the legislation into the service Acts which were valuable and important to the armed services themselves.

Thus it has been possible for Parliament to ensure that the services' unique disciplinary status was in tune with contemporary trends in the law, without endangering the vitally important aspects of trust and respect within the services, up and down the chain of command, for their disciplinary practices. In places, the Bill before us today demonstrates that traditionally cautious approach. Only now, many years after their enactment, are we seeing provisions and amendments from the Police and Criminal Evidence Act 1984, the Prosecution of Offences Act 1985 and the Sexual Offences (Amendment) Act 1992 being adapted and incorporated into the service discipline Acts. Detailed drafting apart, I think that steps such as these are to be welcomed.

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For all those reasons, I question whether it is right to include Clause 33, which provides a general order-making power to enable the Secretary of State to introduce modifications into the service discipline Acts at any time, incorporating very recent changes in criminal legislation. In other ways, too, the approach in the Bill before us goes much further than has been traditional. In Part 2, dealing with powers of entry, search and seizure, the helpful Explanatory Notes prepared by the Ministry of Defence state that it is "desirable", but not essential, that the so-called "inherent powers" of a commanding officer should be clarified and put on to a statutory footing.

The reasoning seems to be that this will help to avoid the risk of a successful challenge to searches instigated by a commanding officer being made under the European Convention on Human Rights. Is that a risk to be avoided at all costs--or, at least, to attempt to avoid it at a disproportionate cost in terms of the diminution of the authority of a commanding officer and of the complexities of the alternative arrangements which are spelt out in Clauses 2 to 16?

Even allowing for the steps being taken to harmonise with the Police and Criminal Evidence Act 1984, the complexities are legion. We have pages to define the reasonable grounds for belief that a search should be authorised by a judicial officer; more pages to detail the rules for the reasonable grounds for a service policeman to search a vehicle, as long as the said vehicle is not,

    "in a garden or yard occupied with and used for the purposes of a dwelling or of any service living accommodation falling within section 15(1)(a), or on other land so occupied and used".

The "dwelling" I have mentioned,

    "does not include any dwelling which is permanently or temporarily occupied or controlled by any of Her Majesty's forces".

On the other hand, "premises", according to Clause 16, includes any place and, in particular, includes--

    "(a) any vehicle, vessel, aircraft or hovercraft, and

    "(b) any tent or movable structure"--

but not, according to Clause 15, service living accommodation if, or to the extent that, the premises are being used for holding persons in custody or for the accommodation of persons serving sentences of detention or imprisonment. Am I alone in feeling sorry for the service policeman as he attempts to comprehend his freedom of action in discharging his duties?

The Explanatory Notes state that Clause 16(7),

    "is designed to avoid any doubt about the effect of sections 2-15"--

but it only heaps complexity on to complexity. Surely that is something to be avoided in the disciplinary provisions for the Armed Forces. I think that I should have the greatest difficulty in passing any promotion examination today in Air Force law based on this Bill.

The Bill's draftsmen have tried to square a very difficult circle. Perhaps recognising that real life will not stand still, they have incorporated a let-out clause for the commanding officer. Clause 7 empowers him to authorise entry and search when he believes that the

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other methods outlined in the Bill are not going to be timely. The Bill then throws a fig leaf to the human rights lobby with provision for retrospective review by a judicial officer. If he approves the action of the CO, all well and good; but the Bill is silent on what happens in the event that the judicial officer is not satisfied. Both he and the CO will have had to arrive at a very subjective judgment. The latter, the CO's, will be made under the pressure of events; the former will be made in a much calmer atmosphere and the judicial officer will have the benefit of hindsight on which to reach his judgment. The CO will have a wealth of personal knowledge of the probity and character of those he commands; the judicial officer will have none of that background information on which to base his own judgment.

Am I being unfair to the judicial officer? If he is a judge advocate, or one of a number of senior practising UK lawyers who know the Armed Forces well, maybe I am. But tucked away in paragraphs 35 and 36 of Part 1 of Schedule 7 to the Bill are amendments to the service Acts specifying the qualifications for appointment as a judicial officer. The appointment may be made if he or she holds,

    "a relevant judicial appointment in any Commonwealth country or colony and has professional or educational"--

note "educational"--

    "qualifications in law which appear to the Judge Advocate General to be appropriate".

Eminent these individuals may be in the practice--or maybe only in the theory--of the law, but the Bill leaves it to the Secretary of State, in Clause 8, to make orders governing the powers and duties of all judicial officers. If they are now to play such a prominent part in the application of service discipline, should not their powers--or at least a clear outline of them--and their duties be on the face of the Bill?

What happens if a judicial officer disagrees with the CO's actions? What redress can the CO seek if he is dissatisfied with the judicial officer's review? Indeed, do these non-UK-based judicial officers have to take any form of oath of allegiance to the Crown?

This is another example of the MoD, with the best of motives so far as concerns the Human Rights Act, once more putting commanding officers through the hoop and yet further debasing their authority. We have seen it in relation to summary punishments; we have seen concerns raised by commanding officers about the way in which the International Criminal Court Bill may affect operational judgments and decisions in the heat of battle.

My question, therefore, to the Minister is: do we have to put our services through all of this? When the Human Rights Bill was in Committee in February 1998, in answer to concerns which I and other noble Lords had raised about the impact of the Bill on the Armed Forces, the noble and learned Lord the Lord Chancellor said:

    "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.]

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If the Bill is accepted in its present form, it makes a travesty of that assurance from the noble and learned Lord.

Would it not be more sensible to follow the more traditional approach and to see how new laws are shaping in the civilian world before we press forward with them in the Armed Forces? We have had very little case law for the Human Rights Act or how the Crown Courts will deal with cases brought by service personnel. I would trade the risk of an occasional successful finding against the Armed Forces under the human rights convention for retention of the inherent powers of the commanding officer, which have long been understood and accepted in the forces themselves.

We are, after all, dealing with volunteer servicemen and women, not a conscript army. I think that the approach in the Bill on this matter is misjudged. Indeed, if the noble and learned Lord the Lord Chancellor is right and I am wrong, the services have no need to act in fear of the human rights legislation at all. Do we really have to rush our fences to incorporate all these provisions before there has been time and opportunity to assess how the Human Rights Act is affecting the services in practice?

5.7 p.m.

Lord Monro of Langholm: My Lords, Perhaps I may first say to the noble and gallant Lord, Lord Craig, how valuable it has been to have displayed today his experience of how an average serviceman will view this legislation. Indeed, I add my congratulations to the noble and gallant Lord, Lord Inge, on the award of the Order of the Garter.

My noble friend Lord Burnham put the political case very well in his speech. I agree with him in regard to Clause 31, which seems to be the main contentious part of the Bill.

Before I go into the Bill--I intend to speak very briefly--I should say to the noble Baroness how much I appreciate what the Army has done over the past six or seven weeks in helping with the foot and mouth outbreak. In my part of the world, Dumfries and Galloway, 52nd Lowland Brigade from Edinburgh has carried out splendid work through the Highlanders and the Gurkhas. Most importantly, they have brought with them an understanding of what had to be done, which has cheered up a demoralised community very extensively. The leadership given by the soldiers has been of tremendous benefit. When my farm lost all its sheep a week ago, the sympathetic approach of the Gurkhas who came to assist could not have been more helpful.

The least that one can say is that, on the whole, the discipline of the services is first class and quite excellent. I am not sure that the Bill makes the law any easier for any servicemen to understand. It adds complication. The poor old Jock in his quarters is thinking, "Well, there's human rights, rules of engagement, orders on Northern Ireland and judicial reviews; am I under the orders of the MoD, NATO, the United Nations or the European army?". This is

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turning servicemen into barrack room lawyers. I do not suppose that anyone in the services would understand the content of the Bill if it were placed before them today. The noble Baroness and her team should attempt to do all they can to simplify some of the aspects of the Bill. It is desperately complicated.

As a junior officer during the war, I was horrified if I was ever involved in a legal case of discipline or a court martial and was told to do a summary of evidence. It took hours, even days, of work. It took one away from what one was supposed to be doing; namely, helping to win the war. That is the kind of problem that will face officers of all ranks when they attempt to fulfil the terms of the legislation that we are considering.

There are few points that I should like to put to the Minister relating to the service discipline Acts. Matters were greatly helped by the Reserve Forces Act, which brought greater flexibility to our Reserve Forces. The Minister knows how well the Royal Auxiliary Air Force campaigned in the Gulf with our medical air evacuation squadron and the movements squadron that was based in this country. During the Gulf War, the Royal Air Force was stretched to the limit in the United Kingdom servicing aircraft for use in the Middle East. In the Royal Auxiliary Air Force--at which time I was an inspector general--we were very keen to take over the guard duties and other work that members of the Royal Air Force had to do on bases in this country. But that was not possible: it was quite wrong for a reservist to carry live ammunition, and he could not be on guard duty at a gate without carrying ammunition. That kind of problem has been resolved by the Reserve Forces Act. There is no reason why a reservist should not be able to do that kind of work in order to relieve our front line forces who may be serving in the Balkans, the Middle East or elsewhere.

I also want to ask the Minister where matters stand in relation to the RAF police. A year or two ago it seemed to me that there were moves for full-time reservists becoming RAF policemen. That may or may not be a good idea; however, I should like to know whether the Bill will cover all aspects of the duties of full-time reservists if they are appointed as RAF policemen.

I should like to raise a further matter which is not specifically contained in the Bill but which comes under the heading of discipline, which is what the Bill is all about. I refer to an issue that has been referred to frequently in the press over the years; namely, having women in the front line.

I have the highest regard for the attributes of our servicewomen. They fly fast jets, work with the artillery and are on active service on warships. That is absolutely right. I am glad that they are able to do so, and to do the job so efficiently. However, the Secretary of State for Defence said last October that women are just as likely to be in a position to kill people as men are. That is not really the point. I accept that because they fly aircraft and work with the artillery and so on, they will be doing just that if required to do so. The worry that one has about women being literally in the front line is the fear of the physical difficulty of

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carrying weights over the distances that a serviceman must cover these days. Could women really have been expected to carry haversacks and weapons over the mountains of the Falklands in such difficult weather and land conditions?

There has to be a balance. Yes, in positions where women can use their skills effectively, they should be allowed to anything that men can do when fighting a war. But where the physical position is impossible, they must accept that they will have to stand back. That is the difference: those who want women to do everything are asking them to do the impossible.

In our regiment squadron in the Royal Auxiliary Air Force, women were trained to an equal standard of efficiency with the men. We were defending aerodromes; therefore, we were not carrying heavy weights and rushing around on our feet for miles and miles. We were in a defensive position. The women were as effective as the men--indeed, some in the squadron were far better shots than some of the men. There is a careful balance to be drawn. I hope that in its thinking the Ministry of Defence will try to draw that distinction in arriving at some future conclusion.

I shall watch the Bill's progress with interest. I do not know how the time will work out, bearing in mind the number of amendments that are likely to be tabled. By and large, one shares the feeling of the noble Lord, Lord Burnham, that we should give the Bill a Second Reading and take the next stage as it comes.

5.16 p.m.

Lord Inge: My Lords, first, perhaps I may thank those noble Lords who have congratulated me on being made a Knight of the Garter. I have not quite recovered from the shock of receiving such an honour.

I welcome a number of the changes proposed in the Bill. Indeed, much of it is uncontroversial. I thank the Minister for the trouble that her office has taken to make sure that we were briefed about the meaning and consequences of the Bill. Much of it is positive. Making warrant officers eligible to sit on courts martial is a good step. I hope that it will not be too long before they can sit on the summary courts of appeal. I shall not, however, tell the Minister what my first company sergeant-major said to me when I was a second lieutenant and sat on a court martial under instruction. His advice was quite clear. I shall tell the noble Baroness after this debate.

I also think it good that people who are not subject to the service discipline Acts who are summoned to attend at courts martial can in future commit an offence. That is important. The introduction of powers to test for alcohol in incidents that may result or risk resulting in death, serious injury or damage is also important. It is good that the service courts will have powers to make orders relating to costs against parties or their legal representatives whose actions or omissions have resulted in another party incurring unnecessary considerable expenditure.

I have one major concern and one major question. My major concern is the one that has been expressed so eloquently by my noble and gallant friend Lord Craig.

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The Minister for the Armed Forces in another place, Mr Spellar, made two comments. He said that he wants to bring service police powers of search and investigation more into line with PACE. The point is dealt with in Clauses 2 to 16. But he said also that he wanted to check that military law meets the current needs of the services. In other words, are they being made more effective by the changes in the law? I find a contradiction in the two statements. The changes to the powers of entry, search and seizure that are being introduced meet not the needs of the services but the needs of the European Convention on Human Rights.

When your Lordships discussed the changes to summary dealing, a number of speakers made the point about the increased bureaucracy that the new arrangements for summary dealing would bring about. Secondly, it was pointed out that they were eating away in a substantial way at the authority and effectiveness of the commanding officer and his command team.

One of the reasons for our Armed Forces being so good is that that critical level of command is invested with considerable power; but the commanding officers exercise that power extremely well, and with great care and caution. I believe that we eat away at that power, that effectiveness and that authority at our peril. I am well aware that in the Ministry of Defence the military lawyers, and others, believe that they have protected summary dealing; indeed, they have done so. However, I believe that that has been at the expense of the effectiveness of the commanding officer. There are also other changes. We are talking about the powers being given to the service police. The fact that the commanding officer must now, if he can, refer to a judicial officer will further eat away at that power. It will certainly become more bureaucratic; it will certainly become less responsive; and, as I said, it will weaken the authority of the commanding officer.

By and large, I believe that noble Lords have an understanding of what it means to be a commanding officer of our Armed Forces. I say that because it is worth reminding ourselves that they are in a totally different position, in my judgment, from anyone else. They are asking the people who work for them--and, therefore, for the nation--to put their lives at risk. Unlike many parts of civilian life, the group is fundamentally more important than the individual. Therefore, the commanding officer is concerned about his people 24 hours a day, 365 days a year. Anything that we do to undermine that responsibility and thereby take away his ability to care for, train, look after and lead his command must, I believe, be a mistake. I am concerned that our Armed Forces, unlike the French armed forces, do not have the opt-out clause, or have not been allowed to opt out of the European Convention on Human Rights.

My second point is a question: why has it been thought necessary to give the Secretary of State the general order-making power to amend the service discipline Acts, if need be? I ask that question because I am suspicious. We are talking about the investigation of offences and the powers of arrest and detention. Are

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we saying that we have to keep up to date with future civilian justice legislation, or do we think that the European Convention on Human Rights--this is where my alarm bells ring--is what I would call a "fast-moving legal target", with which it will be difficult to keep up? If that is the case, are we also saying that the five-yearly review of the Armed Forces Bill is too long to keep in step? If that is so, it seems to me that we are in danger of opening a Pandora's box when we are not yet sure of the possible consequences.

5.22 p.m.

Lord Freeman: My Lords, perhaps I may add what I suppose is almost an ex post congratulation to the noble and gallant Lord on the award of the Garter. He will now be able to look up at his banner. But also, as he leaves the House of Lords each day, he will have the almost unique benefit of seeing his own Coat of Arms on the Staircase leading from this House. The honour is richly deserved. All the noble and gallant Lord's friends, and those who worked with him over many years, congratulate him.

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