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Lord Astor of Hever: My Lords, I too am grateful to the noble Lord, Lord Rodgers of Quarry Bank, for initiating this debate. It gives me the opportunity to say something about the role of the law officers as I have observed it in practice, in relation to one particular area; namely, military justice, which my noble friend Lord Campbell has just spoken about.
Let me say bluntly that I am unhappy about what I have encountered. It leads me to believe that, in this particular respect, the role of the law officers should be much more clearly defined and that it should be clearly restricted. I am in no way attacking the integrity of the Attorney-General. However, I am concerned that in pursuance of what seems to be a novel view of his powers, the noble and learned Lord has removed a case from the military justice system and referred it to the CPS. Is this not a policy of de facto extension of the law by executive decision? May I join my noble friend Lord Campbell and ask the noble and learned Lord, Lord Goldsmith, on what criteria does he base his decision that it is in the public interest to ventilate a military case in the civil jurisdiction? What are his criteria for defining when a case is exceptional and merits transfer?
Moving the Az Zubayr case to the civilian jurisdiction and some other cases that have taken place in the military jurisdiction has caused consternation in the Army. Many officers, NCOs and soldiers are leaving the Army as a result. More are thinking and talking about doing so. My noble friend Lord Campbell rightfully mentioned morale. Morale has apparently now fallen so low that the Secretary of State has had to visit Basra in an attempt to stop the rot. Senior army officers are angry at what they see as politically motivated show trials, orchestrated long after the event, from the comfort and safety of their offices by people with no experience of combat.
Soldiers are trained to kill. In Iraq, if a soldier waits a second too late, he may be killed; if he shoots a second too soon, he may now be prosecuted. Most of the time a soldier does not know who the enemy is and where the next bullet is coming from; an innocent situation will suddenly explode in his face. Take a British soldier, put him into body armour in 58 degrees centigrade and have mobs throw bricks and petrol bombs and then marvel at his restraint in not opening fire. If we subject the same soldier to a life without routine, working 18 to 20 hours a day, unable to sleep because of the heat during his four hours off, if we expose him to a significant casualty rate, continual, yet random, small-arms fire; attacks involving mortars, rocket-propelled grenades and improvised explosives the real question should be: how is it that the junior leadership can maintain such professionalism?
Soldiers are therefore entitled to expect better legal and operational clarity from the Government that sent them to war. My noble and learned friend Lord
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Mayhew used the word "fairness", which seems appropriate in this context. This Government seem to have lost touch with common sense. Between 1 November last year and 31 October this year 856 cases were referred to the Army Prosecuting Authority. This is political correctness gone mad. No one in this House excuses criminal acts. Soldiers guilty of misconduct, under arms must not be immune from justice. But if justice is to be done, it must be administered at the highest standard and without delay. It is disgraceful that the soldiers of the Royal Tank Regiment have waited nearly three years to clear their names. It seems to me that the noble and learned Lord's interference in that case has caused more delay.
I noticed on the criminal justice system website that the Attorney-General is responsible for the trial management programme under which realistic court dates are given and stuck to. Will the noble and learned Lord use his statutory powers of superintendence to reduce those unacceptable delays? The noble and learned Lord the Attorney-General has superintendence over the three service authorities. What does superintendence mean? How does it differ from ministerial responsibility? Why have Her Majesty's Government not used the Armed Forces Bill to define in statutory terms the role of the Attorney-General in relation to the service prosecution authorities, in the same way as it is defined by statute in relation to other authorities? What part will the noble and learned Lord the Attorney-General play when the Bill comes to this House, both in debate and behind the scenes?
In correspondence with the former Secretary of State for Defence, the noble and learned Lord expressed concern at the quality of military investigations. Clearly, neither the service police nor the prosecuting authorities are sufficiently funded to perform the duties that they are expected to undertake. Do the noble and learned Lord's superintendence powers give him the authority to do anything about that apart from writing to the Secretary of State for Defence? To whom is the Army Prosecuting Authority answerable and how is its performance measured?
We gather that defence Ministers, against their better judgment, are being persuaded that we do not need to legislate for Armed Forces discipline every year. The Secretary of State for Defence confirmed in another place on Monday that the discontinuance of that rule was not proposed by the MoD, the Treasury or the Whips' Office. Is that pressure coming from the Attorney-General's office? We sympathise with the MoD; we must give our Armed Forces full parliamentary support.
Finally, will the noble and learned Lord confirm that in his legal opinion the rules of engagement, and the soldiers' cards derived from them, conform with international law as it stands?
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Lord De Mauley: My Lords, like my noble friends Lord Campbell of Alloway and Lord Astor of Hever,
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I want to focus on the increasing involvement of law officers in the application of the civil justice system to the military. I thank the noble Lord, Lord Rodgers of Quarry Bank, for introducing this debate and for giving me the opportunity to contribute. I declare an interest and speak as a recent commanding officer of a territorial regiment. Indeed, a year ago, the day before yesterday, I returned from a visit to Iraq to see my soldiers on operations—territorial soldiers who were involved first hand in combat with the enemy there. I also make it my business to maintain close contact with officers at command level.
I and many others have spoken in your Lordships' House of the case of Trooper Williams. That case was deeply worrying to many of us as it demonstrated a complete lack of understanding by government of their responsibilities for their soldiers—soldiers of whom they were asking more than many governments have asked in recent years. Although it may have been a senior officer who recommended that the Williams case be passed into the civil justice system, it was the Attorney-General who made the decision; furthermore, it was clearly the atmosphere created by that senior officer's political masters that put him in a position in which he felt he had no option but to recommend as he did.
I want to associate myself with the words of my noble and learned friend Lord Mayhew when he said that he had complete confidence in the integrity of the present Attorney-General. It is not his integrity that I question. I want to repeat his words in a letter to my noble friend Lord Astor of Hever, following the Williams case, explaining his actions. He said:
The Government's idea of "justice" seems to be the justice of making an innocent man wait two years with a charge of murder hanging over him. Their idea of the "merits of the matter" is the merits of a case in which the CPS decided to offer no evidence when it realised it might lose.
While our Government concern themselves with the human rights of the man Trooper Williams shot—who had been transporting weapons likely to be used directly against our forces—they were apparently unconcerned with the human rights of their own citizen, Trooper Williams, which were clearly infringed by their actions. I say that, first, because his case had been dismissed by two separate commanding officers both of whom had taken detailed legal advice and were subsequently proven correct, and, secondly, because of the awful period of waiting that Williams was put through before finally getting justice. Justice delayed, it is said, is justice denied.
The case of the five men from the Royal Tank Regiment waiting to know their fate over the incident at Az Zubayr is a further damning indictment of this Government's dithering and weak-mindedness. Those soldiers are still waiting, over two years after the incident, to hear their fate.
In the Army today, the issue of rules of engagement is highly contentious. They must be simple because the situations under which they need to be followed are
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invariably confusing and frightening. The soldier must know those rules instinctively, and that in following them he will without question keep within the law. The Williams case knocked soldiers' trust in the rules of engagement and in the support they will get from the chain of command, and has made every commanding officer's job more difficult. Without complete trust in the rules of engagement and in the unflinching fairness of the justice they will face, soldiers may hesitate in the face of the enemy, and those they are trying to protect may die.
Yet further misguided progress is being made in the Northern Ireland (Offences) Bill, under which it is now proposed that our own people may be subjected to trial for their actions under orders in the name of their country many years ago, while the terrorists who threatened them and murdered members of the civilian population are to go free. The world has gone mad, and this Government are leading the way. Judgment is, of course, needed. There are some valid cases; for example, bullying and violence against prisoners is unforgivable. But that very judgment is notable by its absence.
It is clear that the senior army command finds itself now in an extremely difficult position, constantly looking over its shoulder and trying to second-guess what its political masters want of it. The British Army follows a principle that it calls mission command; put simply, that means "train your soldiers at all levels well, then tell them what you want them to achieve, not how to do it". Mission command requires mutual trust between commander and subordinate. There is now a clear feeling that the Government do not sufficiently trust the military chain of command.
That has led to a lack of confidence among the senior leadership. Witness first the letter sent from the Adjutant General to the Chief of the General Staff to try to get Trooper Williams's case transferred to civil jurisdiction. That betrayed a profound insecurity among senior commanders about the lack of government support for the preservation of the military justice system; and witness secondly the new Armed Forces Bill, which removes powers from commanding officers to deal with the more serious cases, which they have proven themselves well capable of doing since the Army Act 1955, of which a recent example is the Williams case. Why undermine its position by changing the rules unless you are not prepared to trust it?
War—and peace making—is a dirty business. It involves the controlled use of force to achieve an aim. If you want the best people to do your dirty work, you must maintain an environment in which they can do that properly, without constantly looking over their shoulders. If you do not, when you need them most, you will find that they have quietly left to pursue an easier life in the civilian world, leaving behind an army of bureaucrats.
This is a Government who, some have suggested, wanted a war because they had seen what the Falklands had done for the Conservatives. It was a hugely inexperienced decision, and it was, as explained
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by Colonel Tim Collins on BBC's "Newsnight" last night, compounded by a failure to plan for the aftermath, despite having had a dress rehearsal in Kosovo.
Now that they have made such a mistake, they are failing to accept their responsibilities to the people who, in good faith, waged their war. This is undermining the system of military discipline and justice which is absolutely essential to the leadership of soldiers both in war and in peace.
Those who have at heart the interests of our Armed Forces, our country and, yes, of the government want to see a change to a government who accept their responsibilities for their actions. They, and the law officers in particular, can only do this by supporting—rather than undermining—the military justice system and the chain of command.
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