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Noble Lords: Hear, hear!

Lord Freeman: My Lords, I should like to associate myself very much with the remarks made not only by the noble and gallant Lord who has just spoken but also with those made by the noble and gallant Lord, Lord Craig, especially concerning the possible increasingly invidious position in which commanding officers are likely to be put if the Bill becomes law. I should tell the Minister that I believe that that is a reason for us to pause for reflection on this extremely important point. It is not a mechanistic point, nor a legal point; it is a point of real substance. The two noble and gallant Lords who have spoken from the Cross Benches have enormous experience as commanding officers. I should like to add my modest support for what they have said.

I declare an interest as president of the United Kingdom Council of the Reserve Forces Cadets' Association. The Bill also covers the reserve forces. It is interesting to note that the Armed Forces discipline Acts cover reserve officers at all times, but that they only cover other ranks when they are on duty--an anomaly that I have never properly understood. Doubtless the Minister will be able to enlighten us further in that respect. Of course, as and when the reserve forces are called up in formed units, as I expect they will be, I very much hope to serve in the future. Certainly in peacekeeping roles, both officers and other ranks will be equally bound by the discipline Acts.

Before I turn to my brief contribution to the debate, perhaps I may share the sentiments expressed by my noble friend Lord Monro about the work of the regular and reserve forces in dealing with the foot and mouth outbreak. I was in the north of England last Friday and talked to both regular and reserve force officers, as well as to other ranks. I am sure that I speak for the whole House when I commend their expertise and efforts in dealing with this horrendous problem.

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If I may say so, the skill that they bring is not noticeably and consistently present in Whitehall departments. I mean no criticism of them, including MAFF. The Armed Forces bring command and control capabilities that are totally absent from our domestic Whitehall departments. I am sure that many noble Lords will agree with me when I say that, with the benefit of hindsight, the Armed Forces should have been brought in sooner. If we ever suffer such a crisis again, I hope that they will be brought in at a much earlier stage.

I have long been concerned about the rules applied by the Treasury in terms of payment to the forces for the use of equipment. That situation occurred again during the outbreak of foot and mouth. Treasury rules normally require full cost payment for the use of equipment, such as helicopters, transport and aircraft. It is high time that we moved to a system of marginal direct cost charging at the event, which would allow the Treasury to review the following year the total costs of dealing with an emergency and to consider a fair allocation of costs. It cannot be right, as it appears to have been during the recent outbreak of foot and mouth, for there to be any doubt in the minds of commanding officers about the need for--or the willingness of--the Ministry of Defence to provide equipment for the civil forces.

I turn to my three brief points for the Minister. First, there is the need for a tri-service discipline Bill. I think that my noble friend Lord Attlee will probably be dealing with this matter in his speech, but I know that most of us believe that such a Bill is to be commended, at least in principle, because it will bring some form of consistency; and certainly efficiency in the use of parliamentary time. My concern is as expressed by the recently-retired Chief of the Defence Staff; namely, that if you have one Bill, you may perhaps lose some provisions that apply uniquely to one of the four other services. But, however the matter is resolved, I believe that we must press ahead quickly. I ask that the Ministry of Defence treats this as a matter of priority and that it produces a Bill with the aid of parliamentary counsel at an early stage--certainly not at the end of the next Parliament--for wider consultation with the Armed Forces.

Secondly, I should like to commend to your Lordships the use in the House of Commons of the Select Committee system to examine a Bill between Second Reading and the Committee stage. That process occurred during the consideration of the Bill now before us. Perhaps when we come to deal with the next Bill--certainly the tri-service discipline Bill, as far as concerns the Armed Forces--it may be possible, although it raises a constitutional point, to have a joint Select Committee of both Houses so as to enable us to benefit from the expertise available in both places. We are denied the opportunity of prolonged consideration and the taking of evidence from experts on the Bill from which Members of the other place have already benefited. I hope that sufficient time will be allowed by the next government for the tri-service discipline Bill to

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be properly considered by such a Select Committee. We are not talking about a matter of weeks; we are talking about several months.

My final point relates to Clause 31, with which my noble friend Lord Burnham dealt so robustly and correctly. I do not want to pre-empt what my noble friend Lord Onslow might say, although I should point out that his firm views have already preceded his speech. In my judgment, the principles of Clause 31 are correct. However, I have two concerns in addition to those expressed by my noble friend Lord Burnham, which I am sure will be reflected in many amendments which your Lordships will discuss at great length.

First, when a request for assistance is made by local police to the Ministry of Defence Police, who is to set guidelines and priorities? For example, in the case of a national demonstration--as we had in the mid-1980s over the use of Cruise missiles--there may be demonstrations well away from MoD bases but also at those bases. Who is to decide how the scarce resources of the Ministry of Defence Police are to be allocated? Who is to say yes or no to a request from a local constabulary? At the very least guidelines need to be drawn up. It may be difficult to put them in the Bill but they need to be drawn up and published.

Secondly, I refer to the right of individual Ministry of Defence policemen to act in emergencies. Who is to define such an emergency? I have read carefully the Bill and the guidance helpfully prepared by the Ministry of Defence, but I do not think that that matter is made clear enough. We must surely clearly discourage Ministry of Defence policemen from pursuing their own views with regard to dealing with problems reported either in newspapers or on the radio or, indeed, by their own colleagues. Will they divert from a trip between two bases in order to deal with possible assaults and threats to the person? I suggest that, as in the case of the cards issued to infantrymen on the rules of engagement, at the very least clear instructions ought to be issued as to what policemen should or should not be able to do, if the relevant clause is to be passed. Other than that I commend the Bill and I hope that it will receive an unopposed Second Reading.

Lord Renton: My Lords, before my noble friend sits down, I thought that he made a very important point when he said that there should be a Joint Select Committee of both Houses to deal with defence matters in the next Parliament. Does he agree that that has become much more necessary because of the amount of expertise in your Lordships' House and the lack of expertise in another place?

Lord Freeman: My Lords, I am not sure that I associate myself with the latter part of those comments. There is a good deal of expertise in both Houses but it should be combined.

5.32 p.m.

Lord Kimball: My Lords, I start by congratulating the noble and gallant Lord, Lord Inge, on his membership of the noble Order of the Garter. I believe

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that his description of the duties of a commanding officer impressed every Member of this House. No wonder he got to the top of his profession!

I am concerned about one particular aspect of the Bill: the position of the MoD Police--a police force that has been built up without any proper local authority control and is entirely the responsibility of the Secretary of State for Defence. As I understand the Explanatory Notes to the Bill, the Ministry of Defence may take powers to act without a request for assistance from the Home Department or from a police officer. Those powers are far too wide-reaching.

It is terribly important for everyone in this country to realise that even chief officers of police are subject to the vigilance of police committees. Every year people are elected to those committees which constitute a good safeguard. I cannot imagine that the chief metropolitan commissioner of Northumberland would try to cancel the livelihood and liberties march unless he believed that it would cause disorder or seriously endanger people. I also worry about some chief constables with degrees in sociology. I hope that that does not make them politically corrupt. They are, after all, accountable to their local police committees. I hope that as the members of those committees are elected, they will keep them under firm control.

Let us consider for a moment what happened with the fuel crisis. The Government wanted a force that could break heads and enforce their will. To that end they approached the Ministry of Defence Police for help. I am glad to say that they said that they could not help. I hope that the Bill will not give them additional powers. As I understand it, the Ministry of Defence Police cannot arrest someone who commits an offence outside an MoD establishment. The Ministry of Defence Police should deal only with people who commit offences on MoD establishments.

If the Bill becomes law, the Government will be able to build up a paramilitary force to use against people whom they do not like. We ought to be able to say that that should not happen here. Now is the moment for us to kick up a fuss to make absolutely certain that that does not happen here. After all, the noble Baroness is working against the clock. Unless she removes the whole of Clause 31, the Bill will not be accepted. However, we may be able to reach a compromise on that matter.

5.36 p.m.

The Earl of Onslow: My Lords, I have now observed the most perfect, glorious and juicy irony of my whole life. Nick Cohen is a rabidly Left-wing journalist on the Observer. I was deeply influenced by one of his articles. I shall quote from it at considerable length. However, it never crossed my mind at its most imaginative late at night after seven pints of beer that my noble friend Lord Kimball and Nick Cohen would sing from the same hymn sheet. That is the most marvellous advance in the cause of human liberty. My noble friend Lord Kimball is absolutely right: liberty without eternal vigilance will not survive.

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I must briefly digress to congratulate the noble and gallant Lord, Lord Inge, on his award of the Garter. It is the only honour which I lust after completely although I know that I shall not get it. I lust after it because when Lord Melbourne was awarded it he said that he liked the Garter as there was no damned merit in it. There was a rather jolly 18th century Peer who was considered totally eccentric as when he was invited out shooting he used to sit at the third drive at Chatsworth, or wherever it was, wearing his Garter ribbon. That is another reason that I lust after that which, as my noble friend Lord Burnham quite correctly said, I will not be awarded. However, my congratulations are sincere even if my comments may have been mildly flippant.

The Government have in many ways introduced some pretty illiberal measures. I refer to the "three strikes and you're out" measure and their banning the innocent from having pistols while the supply to the ungodly has in no way diminished. They have attempted to restrict jury rights and now they have produced Clause 31 of this Bill. It is worth while quoting from Mr Cohen. No one has as yet denied the following point. He states that the Bill proposes that,


    "the 3,500 officers in the Ministry of Defence Police ... should be free to search and arrest any citizen, and to break whatever strikes, fuel protests and anti-nuclear demonstrations upset Ministers".

That constitutes a Napoleonic police, as permitted by Clause 31. The article continues--this point was mentioned totally correctly by the noble Lord, Lord Kimball--


    "No independent inspectorate investigates complaints. Its officers are not soldiers, but they are armed and trained to deal with obedient squaddies, not the lippy public outside the barracks. At present they can investigate only the alleged crimes of servicemen and women and defence contractors. This sensible precaution is now being dismissed as an absurd anachronism".

I offer many congratulations to the noble Baroness, Lady Symons, on entering the blessed state of holy matrimony. It is to be recommended. My old woman has put up with me for 35 years. I suppose my noble friend Lord Burnham is going to criticise that as well. However, today the noble Baroness has said that if officers driving across Wiltshire Plain saw a man loitering suspiciously near an empty building or holiday cottage, they could arrest him and search him for housebreaking tools. No police force has ever asked for such powers, but the Bill will allow the Ministry of Defence Police to do that.

The Ministry of Defence Police have made some serious errors recently. As Nick Cohen went on to point out:


    "It accused Major Milos Stankovic, who served with distinction in Bosnia, of spying, for example. He was born in Rhodesia and brought up in the West Country, but his Serb name was enough to blacken his character. The charges were dropped".

Mr Cohen also said:


    "Nigel Wylde, a former lieutenant-colonel who was decorated for bravery in Northern Ireland, was hounded for two years for a supposed breach of the Official Secrets Act. ... He had helped a journalist writing an account of military tactics in Ireland. The book--The Irish War by Tony Geraghty--was not banned and remains on sale to this day. The information on the use of electronic surveillance Wylde and Geraghty discussed was in the public domain. As Wylde was not a serving officer, his arrest by

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    MoD police was probably illegal. For all that, the prosecution was only abandoned days before he was due to go to court after a stunned Attorney General called in the papers and ordered the MoD to back off".

There seem to be enough worries about the behaviour of the MoD Police as it is, but there is now a suggestion that they can become a national police force with powers over everybody else without a proper watch committee, however feeble that control may be.

Parliament exists because our forebears decided that James II should not use arbitrary powers for the standing army. We have the quinquennial Acts because William III was not allowed a standing army except when the Mutiny Acts or the Army Act were renewed every year. Having a national police subject only to the control of a Minister without any outside check or balance goes to the core of English and British liberties.

I make jokes occasionally because I think it is fun to do so, but on this issue I am being totally and completely serious. This is tyrannical legislation. I use the word, "completely" advisedly. The provision is not necessary. If it to be enacted, it needs to be done by a full Act of Parliament, with proper discussion at all stages so that we all know exactly what we are doing, not shovelled in by the back door. I sincerely hope that your Lordships will remove Clause 31 from the Bill.

5.43 p.m.

Lord Roper: My Lords, I join others in congratulating the noble and gallant Lord, Lord Inge, on his Garter. Unlike that of Lord Melbourne, it was well merited. I also congratulate the Minister on her marriage. In the light of that, I am not sure whether we shall need to move the amendment that we were considering to Part 6 to permit Ministers to be married in military chapels.

It is a pleasure to speak from the Front Bench on the Bill. I regret that I may have fewer opportunities to take part in your Lordships' debates on defence in the future.

As the noble Lord, Lord Burnham, and the noble Earl, Lord Onslow, have made clear, the Bill is of great constitutional importance, because the authority given by the quinquennial Act is precious to the structure between civilians and the military. During this transitional period of the development of new democratic societies in central and eastern Europe, we are spending a great deal of time explaining to them how to develop proper civilian and military relationships. The model and procedures that we have developed are of considerable value.

The Select Committee in another place proposed accelerating the production of the single tri-service Act. The noble Lord, Lord Freeman, pointed out that some specificities of particular services might be lost if we moved too quickly. I believe that there would be gains and that on balance we ought, if possible, to have a tri-service Act before the next quinquennial Bill is due.

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Reference has been made to the specificity of military discipline and service. I started my military career not in soft beds, but in a hammock on a mess deck in an aircraft carrier, which was made a little more tolerable by the presence in the same mess of two other present Members of your Lordships' House. We all served as ordinary seamen and we discovered at an early stage that military life was different.

That is one of the problems that we need to consider. The noble Lord, Lord Burnham, referred to political correctness. We need to decide how and in which ways military society and discipline will evolve as other ideas and thoughts change in society. How should we take into account attitudes towards gender balance and diversity that are part of society today? That will cause tension, but in the Bill and in other ways the Government have attempted to strike a balance. There are particular points on that issue to which I shall return.

I strongly agree with what has been said about the advantages of the special procedure of the ad hoc Select Committee that operates in the House of Commons. Twenty five years ago, I sat on the Select Committee considering the Armed Forces Bill 1976, under the chairmanship of Richard Crawshaw, who was not only a very good walker, but also a very good chairman. That was a particularly interesting occasion. Serving on that Select Committee is an important education for all who take part. During the debate on the Queen's Speech, my noble friend Lord Wallace and I suggested that this House should consider using the special procedure that is available to us for a Select Committee to consider the Bill. That will not be possible on this occasion, but I agree with the noble Lord, Lord Freeman, that we should return to the issue, doing it either in parallel with the Commons or jointly.

Like the noble and gallant Lord, Lord Inge, I thank the Minister for the briefing that she provided to Members of your Lordships' House earlier this year, when it was possible to raise some of our concerns about the Bill.

We have to deal with some fundamental issues of the basis of military justice in those areas where it does not deal purely with military discipline, but overlaps with issues that are dealt with by the civilian criminal courts for the rest of society. The noble and gallant Lord, Lord Inge, said that certain provisions in the Bill could seriously erode the role of the commanding officer. There is a complicated balance to be struck. Anything that the noble and gallant Lord says on the issue must be taken very seriously. We shall no doubt come back to it in Committee. The noble and gallant Lord has not yet persuaded me of his case, but he has convinced me that there is an issue that we need to discuss.

There are further and wider problems of how far military justice can be seen to be independent and impartial when senior officers sit in judgment and there is no jury. Are those serious restrictions? I believe that we have found--not in this but in other legislation--ways of coping with possible challenges to our system of military justice which could be raised by

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the European Convention on Human Rights. I do not envisage the risk of a further deterioration in this area, as was suggested by the noble and gallant Lord. However, we may well have to return to some of these points in Committee when we consider the question of the future role of the European Convention on Human Rights.

As has become clear, Part IV of the Bill, and in particular Section 31, raises the most complicated and difficult problems--those which arise in dealing with the Ministry of Defence Police. This is a very difficult issue; for example, there is the general problem of assistance to the civil powers. Such assistance can, of course, be fully beneficial and appreciated, as has been the case with regard to the work carried out by our services in relation to the current emergencies arising from foot and mouth disease.

Here, we are talking about a specific type of assistance to the civil powers; namely, that given by the Ministry of Defence Police to their colleagues in normal county constabularies. I believe that that raises a range of serious issues. The noble Lord, Lord Burnham, took the view that it would be better if this were dealt with in a separate Bill. That will not happen. He went on to say that at present he was minded to support the clauses concerned, even though some of his noble friends do not appear to share his view on the matter. From these Benches--


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