---

Lord Moonie: My Lords, I congratulate the noble Lord, Lord Campbell, on succeeding in gaining a debate on this important subject. It is also a great pleasure to follow the noble and gallant Lords, Lord Boyce and Lord Guthrie, in speaking today in my maiden speech, as I worked with them for several years in the Ministry of Defence.

Using the word "maiden" to describe an old political hack like me is perhaps stretching the point a bit, after the years I spent in another place. However, I should like to record my sincere gratitude to the staff of the House for the way in which they ease the passage of Members into it and the help that they give us. From my dim recollection of 18 years ago, it is quite different from the situation that applied then in the House of Commons. I am grateful for the welcome that I have received also from old friends, some of whom I have known for nearly 40 years. I look forward to spending time with them now in the House.

I understand that a maiden speech should be short and non-controversial. I certainly do not mean to contravene such long practice. Should I stray beyond the bounds of accepted practice, I will be happy—I know it is not the done thing—to take interventions. I am blessed with a thick skin, as you can see, but, I regret to say, also with a fairly sharp tongue; so do it at your own risk.

It is five and a half years since I first became a Minister in the Ministry of Defence, and almost my first duty was to take what is now the Armed Forces Discipline Act 2000 through its Committee stage in the Commons. I had long experience in opposition of taking Bills through, and as the Ministry of Defence is not noted for the number of Bills with which it has been landed in the course of its existence, other than the quinquennial review, they were glad to find someone who had more than a passing acquaintance with how Committees worked.

The Act, of course, brought in a wide range of changes in the way in which members of the Armed Forces are disciplined, both in their unit and at court martial, consequential to the incorporation of the European Convention on Human Rights into British law and to the results of one or two prior judgements from Europe that forced the changes on us. I fully supported the action that we took then, and I still do.

Members of our Armed Forces enlist or are commissioned in the full knowledge that they may be called on to pay a very heavy price—sadly, sometimes, the ultimate price—for their service. Surely, they are therefore entitled to expect the same protection during legal process as any other British citizen, with the strong proviso—I agree with the previous speaker on this—that that should not be to the detriment of the operational effectiveness of their unit. That is the test that must be applied to the Act, now that we have seen it in operation for five years.

At the time, Ministers including myself gave certain assurances to the effect that we would look closely at how the Act was operated. If the service chiefs and their predecessors feel that problems are arising as a
 
14 Jul 2005 : Column 1238
 
result of the operation of the Act, it is high time that it was reviewed. Our Armed Forces, after all, are the best in the world, and we want them to remain so.

That brings me to the second problem germane to the debate; namely, the perception that the setting up of the International Criminal Court and this Administration's support for it represent an intolerable burden for our Armed Forces. The example of Private Williams has rightly been cited, with the difference of opinion that arose about how that tragic accident should be dealt with between the chain of command and the legal department. Clearly, the course of action in any individual's case will vary depending on the danger of the situation and the rules of engagement in operation at the time. In particular, the taking of human life is something that requires a very full justification.

One can argue for ever about whether the action taken in the case of Private Williams was correct or not. Perhaps I may put on record the fact that I was glad that the case did not proceed, although I regret the time that it took to come to that decision. In passing, I also think that it was unfortunate—I am no jurist—that the charge brought had to be murder. We have seen that before in situations involving soldiers who have discharged their weapons and killed someone, particularly in Northern Ireland. Surely, it would be preferable to have a greater range of options available, so that a charge could be brought and justice administered in a fashion appropriate to the offence that is said to have been committed. Having no option other than a charge of murder is a great failing in our legal system and one that should be remedied as soon as practicable.

Nevertheless, in order for us to be sure that we comply with the law and avoid the chance of charges being brought in the ICC against British service men and women—I agree with the noble and gallant Lord, Lord Boyce, that it is a theoretical possibility, but only a theoretical possibility—we have to ensure in this country that our legal proceedings do not render us liable to the proceedings of the court. We supported the court coming in; we can hardly cavil at the fact that a case could be referred to it. That cannot be allowed to happen, and we must ensure that it is not allowed to happen by ensuring that our legal procedures are correct. If that is the case, we have nothing to fear. I do not think that it is something that any of us would wish.

Sadly, in a case such as Williams, there will be some doubt—but in very few cases. The Ministry of Defence has said that of 70,000 service men and women who have served in Iraq, nine case have been brought under civil law to date. That is a very small number, but it is an indication that we look very carefully at the disciplinary procedures that apply and step in only when we feel that it is absolutely necessary to do so. It is right, after all, that our people should be able to operate in life-threatening situations without constantly looking over their shoulder for approval from somebody. They must be able to do that, but it is surely equally correct that wrongdoing is properly dealt with and that justice is not only done but seen to be done.
 
14 Jul 2005 : Column 1239
 

12.50 pm

Lord Mayhew of Twysden: My Lords, I am delighted to have the privilege of congratulating on behalf of all of us the noble Lord, Lord Moonie, on his maiden speech. He has brought great political and professional experience to his membership of this House, and I know that we all look forward to hearing him contribute on many further occasions. As an old political hack—to use his engagingly modest description of himself—I know that he will recognise why one would like to say very much more by way of welcome than a time-limited debate permits. But he is very welcome and I am delighted to have the privilege of congratulating him.

At least two noble and gallant Lords have pointed out that service people on active service, including on dangerous operations, do not expect or require to be exempt from the rule of law. I know that to be true but I know something else as well, that they expect and need to be treated by the enforcers of the rule of law with realism and fairness.

Having listened to the speech of my noble friend Lord Campbell of Alloway, whom I too thank for this debate, it is perfectly clear to me that the overriding question in the case of Trooper Williams lies in the reasons that led the Director of Army Legal Services to refer the case to the Attorney-General. It is particularly good that this debate has been afforded to us because it has already thrown much needed light upon that most disturbing case. More light is needed, and I hope that the noble and learned Lord the Attorney-General will produce it, because it is too much to expect the Minister who is from a quite different department to provide it.

Why is the Attorney-General not here? He played a crucial part in the reference of this case to the Crown Prosecution Service. He must have endorsed the Crown Prosecution Service's subsequent decision to recharge Trooper Williams in the civilian jurisdiction. Much as I admire and like the noble and learned Lord, I find it astonishing that he is not here today.

Your Lordships will recall what my noble friend Lord Campbell said about the letter sent by the Adjutant-General to the Chief of the General Staff explaining why, in the Adjutant-General's view, it was necessary to invite the Attorney-General to review the case. It is quite extraordinary that that letter cited reasons which—as the House will recall from what my noble friend Lord Campbell of Alloway said—were quite extraneous, to use his words, to any proper decision as to whether someone should be prosecuted for any offence, let alone for murder. They included the pressure of ginger groups arising out of the deaths of civilians in Operation TELIC in Iraq and concerns for the future of the military justice system if a cause célèbre were to grow up among pressure groups. These are, as accurately as I can recall them, direct quotations from that letter.

It is a very serious situation indeed that that action was taken in circumstances which ran against what was the clear policy and scheme of the Army Act, because your Lordships will recall that before this occurred the commanding officer—acting upon strong
 
14 Jul 2005 : Column 1240
 
advice from Colonel Barnett of the Army Legal Services, which was itself endorsed by his superior in Iraq, who I believe was called Colonel McElvoy—had dismissed the charge of murder on grounds that there was insufficient evidence. Although the decision in military law rested with him, what alternative, effectively, could possibly have presented itself to him? So far as I know nobody has criticised him.

It therefore becomes necessary to see what led the Director of Army Legal Services to circumvent the policy of the Act, which provides that once a case of that kind has been dismissed it cannot be taken to a higher military authority and tried by court martial. Well, we read the letter that was sent. It is very important to realise—and we get it from a paper put by the Attorney-General in the Library of the House in 2004—that the Director of Army Legal Services is also the Army Prosecuting Authority, and that he is required to be independent of the chain of command. The Attorney-General said in a Written Statement to this House that the matter was referred to the Attorney-General on behalf of the Adjutant-General. How could the Army Prosecuting Authority—the Director of Army Legal Services—have been acting independently of the chain of command if he acceded to a request and acted on behalf of the Adjutant-General? That is a most serious question that needs to be answered. I am very much afraid that he referred the matter because he was asked, and indeed told, to do so from on high.

Very important questions have been raised and in a short time one cannot begin to do justice to them, but I do have to point with great regret to the fact that there is surely a reasonable perception that there was somewhere an unhealthy determination that Trooper Williams was going to be made to face this charge. I share the great relief expressed by the previous speaker, the noble Lord, Lord Moonie, and by others, that at the end of a very long day he was acquitted because the Crown Prosecution Service threw the towel in for lack of evidence.

12.57 pm

---