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Lord Moonie: My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for instigating this debate and for his thought-provoking introduction to a very important subject. I am grateful for the chance to contribute to the debate and shall try to place it in context.

The changing nature of war is now accepted as fact. I am sure that any noble Lord with an interest in military affairs will have read Sir Rupert Smith's recent book The Utility of Force: The Art of War in the Modern World, in which he describes "war among the people". I shall quote from that book:

It also surely behoves us to ensure that our servicemen and women are treated with justice when they are called to account, and that that justice is conducted in an appropriate manner.

The behaviour of soldiers nowadays is scrutinised as never before. The presence of the media alongside us as we conduct our campaigns has to be taken into account, as of course must the need to conform to international standards of behaviour. That requirement places a heavy burden of responsibility on officers and NCOs in the chain of command to ensure that our functions are exercised responsibly. Sadly, it appears to have failed on several occasions.

In another place, I was responsible for getting some of the legislation that applies to what we are talking about today on to the statute book, in particular the Armed Forces Discipline Act 2000, which I took through Committee and spent many a weary hour discussing with Members on all sides of the House. In addition, the Human Rights Act 1998, the Armed Forces Act 2001 and the current Bill have to be taken into account.
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As a lay person, the requirements appear to me quite clear: first, a clear understanding of the law, and robust and sensible rules of engagement; secondly, the proper training of personnel, focused on how to behave among civilians. Our experience in Northern Ireland and the Balkans is excellent, but sadly it is not enough. That experience must be passed on to all who are involved in operations in a civilian context. Thirdly, we need a sound, reliable system for the rigorous investigation of alleged offences and the prosecution of offenders. Fourthly, we need to recognise that military action is only one part of a highly complex solution to a problem. The failure of the occupying powers in Iraq, particularly the USA, to recognise this has placed a very serious—some would say intolerable—burden on our forces as they attempt to keep order in that country.

In investigation, the chain of command clearly has primary responsibility, as has the military police. I should ask in passing, is there not a much greater role for the Ministry of Defence police force or the secondment of experienced police officers from civilian police forces as back-up to the investigating authorities when looking at serious offences?

I shall now turn to the role of the Attorney-General. Over the past eight years, we have done much to protect the rights of our service people and to ensure that they are given a fair trial. That was the point of the Armed Forces Discipline Act 2000. After challenge in the European Court, it was recognised that our system of justice under courts martial and summary procedures was inadequate to ensure that people were treated fairly. We attempted to redress that balance. The Act was inadequate, as primary legislation often is, and has since had to be supplemented by secondary legislation to take further account of judgments that have been made. But it is probably now a robust way to ensure that our people are properly represented and are given justice when they are brought before a court martial or dealt with summarily. It is also essential that we comply with the standards of justice expected of us as supporters of the International Criminal Court and the legislation pertaining to it. It would surely be reprehensible of us to have taken a major part in setting up that court and then to say that its provisions should not apply to our own people. In order to ensure that our people are treated under the British system, we must ensure that that system complies with the procedures of the ICC. We must keep that constantly in mind to ensure that we can administer the system on our own.

I do not believe that courts martial are an appropriate venue for offences under civil/criminal law. The standard of proof required and the right to trial by jury provide, in my lay opinion, greater safeguards for the accused than there might be in a court martial, even given the changes that we have made. I can give only anecdotal evidence to support that, but more than one senior military officer has said
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to me that the purpose of summary procedures, and often courts martial, is to punish the guilty, not to administer justice impartially.

Earl Attlee: My Lords, the noble Lord is right when he talks about summary jurisdiction: there is an expression "march in the guilty 'baskette'"—or something similar—but a commanding officer would never opt for summary jurisdiction unless he believed that the solider was guilty, hence the expression.

Lord Moonie: My Lords, I agree with the noble Earl, but that is why in turn we have had to bring in additional safeguards to ensure that justice is administered, not the opinion of the commanding officer.

Where an offence has been committed under service law, it is entirely appropriate that the military system of justice should prevail. Under the criminal code, particularly for serious offences, that is not enough. The prosecuting authority should be independent of the chain of command to satisfy the requirement that justice be done and that the guilty pay for their crimes, and to ensure that those charged are treated fairly and in compliance with international law. The Attorney-General is the appropriate final arbiter in determining whether charges should be brought and under which system the accused should be tried. As a senior law officer of the government, he is responsible and accountable for the administration of that part of the system of justice in our country. There should be no other final arbiter of which cases are brought to trial and in which type of court.

On the other hand, the noble Lord, Lord Campbell, advanced a strong and passionate case for a further safeguard to be introduced. My concern would be that that would diminish the authority of the Attorney-General and perhaps weaken our level of compliance with international law. However, the noble Lord's point is worthy of serious consideration and I have no doubt that we shall return to the matter during our discussions on the Armed Forces Bill later this Session.

11.58 am

Lord Garden: My Lords, I thank the noble Lord, Lord Campbell of Alloway, for the opportunity that this debate again gives us to consider the legal pressures under which our military have to operate. The requirement to carry out military operations within the bounds of national and international law is not new. We have covered aspects of this topic in a number of exchanges over the past year in your Lordships' House, most particularly in the debate on the chain of command on 14 July 2005. In that debate, the importance of the issue was reinforced by every noble and gallant Lord who spoke of his concerns. Yet nothing that I heard in that debate, or have seen subsequently, has changed the view that I took then: if we are to use our Armed Forces as a force for good, we must ensure that they operate at all times within the law. That means that we need a process to investigate allegations that the law has been broken and, if sufficient evidence of wrongdoing is found, due process must follow.
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We are debating this issue during a bad week for public perception of the British Army. I do not intend to comment on the particular case, but it underlines the importance of a reliable legal process to investigate such allegations.

On the narrow question that is the subject of this debate, I have read the uncorrected evidence given to the Armed Forces Bill committee in the other place on 26 January 2006 by the Judge Advocate General and the three service prosecuting authorities. Major General David Howell, the current Army Prosecuting Authority, was asked directly by the committee about his relationship with the Attorney-General. He said—and I quote from the uncorrected evidence:

He went on to say:

When pressed as to whether the Attorney-General,

the General said:

The transcript from the subsequent session of that committee on 9 February 2006 makes it clear that General Sir Michael Jackson, the Chief of the General Staff, strongly endorses the comments made by Major General Howell. These Benches welcome those assurances and do not question them for a moment. The procedures seem entirely appropriate and appear to have been operated correctly.

I lack the legal expertise of many noble Lords who will speak in the debate, but I know that the military are very conscious of the rules and of the result if they break them. Later this year we shall debate the Armed Forces Bill, which the committee discussed, which will bring together the three service discipline Acts. That Bill is a salutary reminder of the legal framework by which the military are constrained. We expect a great deal from our Armed Forces, not just a sense of duty which extends to risking their lives in the service of the country, but we place extra legal restrictions on their actions which civilians do not have. That puts on us, as legislators, an extra onus and on the Government, as employers, an extra burden towards every individual in the Armed Forces. We expect them to respect the rule of law, but we had better be sure that we do all in our power to ensure that they have just treatment, and it is seen to be just, when they face allegations against themselves.

That means that we must not stint on the resources that we allocate to investigating complaints. The Military Police, like all parts of the services, suffer
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from overstretch. It is a specialist activity, which is being much used. I heard the suggestions from the noble Lord, Lord Moonie, about places that one might look, although such resources are fairly few and far between. We must have enough investigation resources to provide a speedy response in order to decide whether there is a case to answer. Justice means understanding the operational circumstances in which alleged offences have taken place. When we look at the Armed Forces Bill, the question of ensuring that the military chain of command is safeguarded will almost certainly arise, and we shall support amendments which ensure that that principle is maintained. There have been administrative problems which have led to delays, and we have discussed the Trooper Williams case, again raised by the noble Lord, Lord Campbell. There has been a lack of duty of care. But these mistakes happen, and we should not throw away procedures because of errors of implementation. We need to learn from those mistakes. We need to know that the Ministry of Defence is learning from those mistakes and that, even in these financially straitened times, the necessary resources will be made available to correct problems in the delivery of justice.

There is one other aspect which I would wish to raise, given that we have the noble and learned Lord the Attorney-General to answer this debate on a military topic. I am sure he would agree it is important that individual service men and women are always clear on what their rules of engagement are. Indeed, the noble Lord, Lord Moonie, talked about the need for robust and clear rules of engagement. Unlike civilians, the laws that affect servicemen can change depending on the nature of the task. On a humanitarian relief operation, say after an earthquake, they are not expected to use lethal force. On an operation in support of a civil power, they will be working broadly to the same rules as the civil security forces. But in a more old-fashioned fighting conflict, they are authorised to use lethal force within the laws of war. These distinctions are important and are translated into direct instructions to each service man and woman. We heard from the noble Earl, Lord Attlee, in the debate on 12 May 2004, that he received no training on the rules of engagement when he deployed on Op TELIC.

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