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Lord Redesdale: My Lords, I have taken part in debates on many orders and I believe that this is one of the longest with which I have been associated. It will also probably receive the most amount of press coverage. The only order that I can think of that received any press coverage was one that removed the offence of a landlord serving more than a pint. Apparently it was illegal to give more than a pint.
The order before us is uncontentious. I do not believe that any noble Lord has spoken against the order. On these Benches it has full support. I echo the words of the noble Lord, Lord Hardy of Wath. This is an opportunity to commend the work of our Armed Forces. I had a number of questions for the Minister about a forthcoming Army Act but he answered those in his introduction to the order.
I also echo the words of the noble and learned Lord, Lord Mayhew, who said that this was an ingenious opportunity for a debate to be brought forward on this subject. I realise, as the noble Lord, Lord Chalfont, said, that this is not just a peg on which to hang a debate about this terrible tragedy but an issue that he believes has constitutional implications. I take on board that sentiment. However, only two questions appear to have been raised this evening: one, whether
the Government will publish the report before the Summer Recess; and, two, whether the House will be given the opportunity to debate that report before the Summer Recess? I hope that the Minister will be able to answer those questions.
Lord Vivian: My Lords, I am most grateful to the Minister for moving the order. On these Benches we naturally support it for the reasons that the Minister so clearly identified. The House welcomes the Minister's statement concerning the government response to the House of Lords Chinook report ZD576. We on these Benches want to debate the response before the Summer Recess. I agree with what your Lordships have said. It has taken too long and we should debate the response before the recess. I agree with the reasons given by the noble Lord, Lord Chalfont, and I agree with what my noble and learned friend Lord Mayhew said. I prefer to say no more on the issue now and to keep what I have to say for the debate on the Government's response.
The continuation order represents an occasion when some associated matters can be included in the debate, although I shall keep my contribution short. I am most grateful to the Minister for bringing us up to date on the tri-service Act. Will he confirm that there will be advance consultation with Parliament at various stages of preparation of that new Act?
During the past 10 years there has been increased emphasis on joint aspects of all three armed services. Because of that, the need for further continual amendments and a tri-service Act has developed. During the drafting of that Act it will be important to ensure that due to the nature of the three services and their different roles there may be a need to introduce some parts of the Act which will be applicable only to a specific service. To support that comment, the Chief of the Defence Staff said that we should recognise the tolerable variation that needs to exist between the three service environments. However, to wait another four years, as the Minister indicated, seems an exorbitant length of time.
It must be recognised that the way of life in the Armed Forces is very different from that of civilian life. The temptation to tinker with the discipline of the Armed Forces must be resisted at all costs when drafting the new tri-service Bill. The new Act will be of such importance that we should try every way to retain the effectiveness of the military discipline system, ensuring that commanding officers retain their full powers.
I take this opportunity to comment on the Human Rights Act and some aspects affecting Armed Forces military law which did not comply with the European Convention on Human Rights. I am aware that the Minister has touched on that subject. Changes were made to existing military law and although they achieved the object of retaining summary powers of jurisdiction and custody before trial, they also undermined the authority and effectiveness of a commanding officer as did a number of other changes.
Your Lordships are well aware that morale is built of various components and a large component is military discipline. The efficiency and the state of morale of a regiment is the sole responsibility of a commanding officer and for that reason such power is vested in him. If we undermine that power and authority we shall destroy the ethos and morale of regiments and we shall be left with inefficient units that may not be successful in times of conflict.
I wish to touch on one aspect of the International Criminal Court, which rightly caused so much concern in your Lordships' House. Part of the Act deals with actions taken by military commanders in times of conflict and could have led to those military commanders being arraigned on charges by a foreign court. By signing up to retain jurisdiction over our own Armed Forces it denied the right of any foreign government to bring charges against a UK serviceman or woman until the case had been investigated by our own United Kingdom authorities. If the United Kingdom decides that there is no case to answer, I understand that that is the end of the matter and no European court would have any jurisdiction. Can the Minister clarify the situation and explain why we did not take advantage of Article 124 of the Rome statute which would have allowed us to opt out for a period of seven years?
In conclusion, we on these Benches pay great tribute to the men, women and families of our Armed Forces. They have been over-committed and yet they have performed their tasks highly successfully with great skill and bravery. But a word of warning: those skills are beginning to fade and troops and families are beginning to become tired. Retention rates are poor and consequently experience is drifting away which is the start of inefficient Armed Forces. It is Her Majesty's Government's responsibility to ensure that the Armed Forces of the Crown are funded correctly. If under-funding persists, manning levels will fall, equipments will be cancelled or delayed, commitments will have to be cut and our fighting efficiency will deteriorate.
9 p.m.
Lord Bach: My Lords, I thank all noble Lords who have taken part in this discussion of the order and the amendment to the order. The passion and thought with which all distinguished noble Lords have spoken has certainly been effective.
I hope that noble Lords will not think it offensive if I tell the House straightaway that I do not intend tonight to go into the merits or otherwise of the Chinook affair. There will be a debate following the publication of the Government's response. But I tell the noble and learned Lord, Lord Mayhew, that it may not be possible to have that debate before the Recess because it may not be possible to publish the response until very close to the Recess itself.
When the response is published it is intended that there will be a Statement made in this House so that there will be a short discussion—I know how long
Statements take in this House—at the time. I do not see that, nor will noble Lords, as a substitute for a full debate. That debate will take place, but I cannot give a guarantee that it will happen before the Recess.I shall briefly deal, first, with the timetable and, secondly, the attacks which have been made on the executive and the Ministry of Defence. I shall not be long about either. As regards the timetable, at the risk of repeating what I said some time ago when I moved the order, I say this. The Select Committee's report was published on 5th February, not 3lst January, of this year. The Government have consistently said, and I say it again tonight, that they will respond to the report before the six months allowed for responses—I repeat, allowed for responses—under the rules which we have to follow have elapsed. That remains our intention and we fully expect to publish our response before the House rises.
The committee's report is a detailed assessment of a set of complex, technical, legal and, we believe, airmanship issues. Surely it must be right that it has to be fully and carefully assessed. That is what we will be doing and we will not be deflected by name-calling from doing that.
I turn briefly to the comments made about the Ministry of Defence and the executive. The comments sadden me and I believe them to be unfair and unfortunate. I hope that some elements of the House may agree with me. It is not fair to say that the Ministry of Defence has dragged its feet, or that its back is against the wall.
Two important matters need to be resolved by the Ministry of Defence before it can put forward its decision and its view, which will be decided by Ministers and nobody else, on this very important matter. It is extremely important as well as being an extremely tragic case. The first matter relates to further advice from counsel on the application of evidence concerning the standard of proof criterion. We have heard some very distinguished views on that today. We are obtaining further advice from counsel. I share that with the House. That is what we are doing and I believe that we would be rightly criticised if we did not do that.
Secondly, as regards Boeing, the House will recall that the very distinguished committee which looked into these matters criticised the original Boeing simulation and the standard of proof. As part of the detailed assessment of the report that is currently being undertaken, surely it is right to seek Boeing's input. Indeed, I would have expected the House to criticise us if we had not bothered to do that. We want the best possible advice. We have asked for Boeing's comments and that they review their original analysis with the inclusion of a full FADEC simulation. The modelling tool available at the time did not include FADEC parameters although the engineers who conducted the original simulation factored in known FADEC performance criteria. Boeing has also been asked to re-examine to what extent the minimum speed at the way-point can be established. Boeing is doing that and is assisting. We are grateful to it and to the other
companies involved in this work—in other words, the sub-component manufacturers—for their co-operation.Boeing is the only manufacturer and design authority of the Chinook. Only Boeing possesses the necessary detail about the design and material of the aircraft and its capabilities. We intend to make the evidence produced through Boeing's work, in the light of the re-modelling process, available although there may be some matters of commercial sensitivity which preclude publication of some elements.
I want to emphasise to noble Lords that we have been consistently open. Nothing is being hidden; there is nothing to hide. Anyone who has experience of the defence industry and, one might say, of industry generally, will know that it sometimes takes quite a long period of time for these reports and examinations to be done and sent back to Britain. It is unfair to suggest that the Ministry of Defence is dragging its feet because those reports have not yet reached us. We are hoping that they will shortly and they will be considered properly and carefully. I cannot believe that the House would expect us to do anything else.
The suggestion that a decision has somehow been made by the Ministry of Defence as to what conclusion we are going to reach on the Chinook matter is absolutely wrong. No decision has been made. We will look carefully at the whole issue when we have received the new information and then make the decision, we hope, coolly, calmly and properly. We will report within the six months that we are allowed. I repeat, the decision will be made by Ministers.
I end this part of what I have to say by making this point. Given the level of interest that there is in this matter—we have seen it tonight in a very articulate form—how could the Government consider that any delay on their part would be helpful, as some noble Lords have suggested? We want to clear this matter up just as much as those who have spoken with such passion tonight.
I turn to what the original Motion speaks about and particularly with reference to the speech which the noble Lord, Lord Vivian, made a few minutes ago. I would like to thank both him, the noble Lord, Lord Redesdale, and other noble Lords for their support for the order itself. The noble Lord, Lord Vivian, acknowledged many of the issues which we are taking into account in our work on the tri-service Act, including striking the right balance between harmonisation and single-service requirements. He recognised the need to get the new legislation right. That is what is most important to us. The services are naturally concerned that we should proceed with caution and care in enveloping the new framework that is needed. In consideration of our timetable it is right that we should proceed at a pace with which the services themselves are comfortable.
Consultation with the House was mentioned and that is understood. One means of consultation is these annual debates and it may be that in years to come we shall be able to concentrate more on the order itself. However, this time next year the policy development
stage that I spoke about should be complete. I am happy to consider whether it would be possible to publish information about our proposals. If we were to do so I am sure that there would be no reticence on your Lordships' part in giving the Government the benefit of your views. I invite the noble Lord to leave that matter with me for the time being.The noble Lord, Lord Vivian, commented on the changes that are to be made to service discipline because of the European Convention on Human Rights. I agree with his comments about the critical importance of the commanding officer in upholding discipline and maintaining morale, and the key role that those factors play in preserving operational effectiveness. Where I part company gently from him is in his analysis that the changes to be made in some way undermine the position of the commanding officer or are damaging to discipline and morale.
The changes have increased the fairness of the system of discipline and, I would argue, have helped to bolster the respect in which the subsystem is held by those who are subject to it. If so, we do not believe it necessary to consider leaving the ECHR even on a temporary basis. We take a positive view. Those who bear the heavy responsibility of defending our rights—the rights of the population at large—should enjoy those appropriate rights themselves.
I shall briefly mention the International Criminal Court. The noble Lord asked why the UK did not opt to take advantage of the seven year transitional period in Article 124 of the statute whereby a state can declare that provisions on war crimes do not apply to crimes committed by its nationals or on its territory. In the negotiations for the ICC statute we made it clear that it would have been better not to include such a transitional arrangement if agreement had been possible without it. It is a perverse position for states to join the court but not to accept the bulk of its jurisdiction for seven years. We believe that making use of that provision would have called into question our commitment to the International Criminal Court.
The complementary provisions of the statute whereby we have primacy of jurisdiction in cases where our nationals are accused provide the protection that our service personnel require. In other words, if the UK decides that there is no case to answer, then the ICC would not have jurisdiction unless it could claim that the UK was deliberately shielding war criminals or that the justice system had broken down. We do not believe that either of those situations is likely to occur.
The noble Lord, Lord Vivian, ended by referring to the commitments of our Armed Forces and the implications for personnel and their families. It remains our policy to achieve a balance of commitments. We aim to commit personnel to operations for no longer than is necessary to achieve their military purpose. That was evident in the case of the deployment to Macedonia last year. I am grateful for the kind remarks that he and the noble Lord, Lord
Redesdale, and others have made about our Armed Forces. They are well deserved. I commend the order to the House.
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