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Earl Attlee: My Lords, I am grateful to my noble friend Lord Campbell of Alloway for introducing this debate. I am neither a lawyer, a former Minister nor a former CDS. I am much closer to the shop floor, a humble major, and I am subject to military discipline as we speak.

Fortunately, I have never come even close to having to engage an enemy, but like every other member of the Armed Forces, I have to be prepared to do so at no notice. I am a serving TA officer. I am liable to be called up for operations and I have taken part in two so far. However, noble Lords should understand where I come from. If I had to engage the enemy and apply lethal force, I have absolutely no confidence whatever that I would be promptly and fairly dealt with—not one shred.

However, it is important for noble Lords to understand that I have full confidence in the chain of command—my commanding officer, my brigade commander, the divisional commander, Commander-in-Chief, Land, and the Chief of the General Staff. But they cannot help me or exonerate me of any wrong-doing, even if I had acted precisely in accordance with their intent and with the rules of engagement. On current evidence, I will not know whether I had acted
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properly and legally for at least two or three years, if ever, even though I might have had only as many seconds in which to make my decision during the operation. There does not seem to be a system to exonerate those who have only done their duty, and legally—at least not any longer for murder and manslaughter. This applies equally to the Armed Forces and the police, who have their own problems. I will resist the temptation to comment on the working of the APA and the CPS, but I agree with almost everything that my noble friends have said.

I expect that some noble Lords wonder why soldiers continue to serve and, in particular, whether I would agree to go on another operation. There are numerous hazards on operations: injury; sickness, including post-traumatic stress disorder; and death. Delayed justice is just another hazard. Everyone, including me, just hopes that it will not be him.

Would I go on operation? My biggest problem as a TA officer is my civilian occupation, which happens to be in your Lordships' House, but it could be elsewhere; it is not the statistically low risk of being hit by delayed justice. Moreover, I will be 50 years old in October, so it is about time for me to consider retiring, but I will certainly not consider resigning because of this problem.

What advice would I give to a young man considering joining the British Army, either the regular Army or the Territorial Army? Until we sort out this shipwreck of a disciplinary system, supervised by the noble and learned Lord the Attorney-General, I would advise joining the Royal Navy or the Royal Air Force, which offer just as good a career. There is just as good an opportunity to make valuable public service and virtually no chance of experiencing the difficulties which were faced by Trooper Williams. I pay tribute to him for conducting himself so well.

Noble Lords will have seen the shocking newspaper reports last weekend. They will have detected a fairly robust line in my speech and interventions. Even in high-intensity war, once the enemy is a prisoner and no longer a threat, he is entitled to entirely different treatment. Whether it is a war-fighting or a peace-keeping operation, prisoners must be treated humanely, not only for legal reasons, but also to facilitate reaching the desired end state by winning the hearts-and-minds campaign.

I shall not weary your Lordships with the detail. However, in every year of my military service, the need to protect prisoners and other vulnerable people during operations has been drummed into me. It is extremely hard to understand why we are suddenly experiencing problems in this respect. It is no use Ministers and noble Lords saying that such cases have been unusual in Iraq. During Operation Banner in Northern Ireland, which ran for several decades, soldiers were under severe provocation, but problems were rare, especially as far as gratuitous assault was concerned.

Sadly, things did go wrong on Operation Telic in spring 2003. If they had led to a court martial by the end of 2003, or perhaps early in 2004, or at least
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charges being laid, would matters have gone so badly wrong in 2004? If one exercises military discipline promptly and fairly, with appropriate checks and balances, and a short "flash-to-bang" time, one can get away with lighter punishments, but still have the same deterrent effect. In addition, more serious problems can be completely avoided.

My own view and experience is that our system of military discipline is falling apart. I do not find myself in agreement with the noble Lord, Lord Moonie, despite his experience, but I look forward to debating the Armed Forces Bill with him. His experience will be invaluable.

I will give your Lordships an example of where the system is falling down at a low level. It is falling down with the ingress of the ECHR and by means of the Armed Forces Discipline Act. In 2002, I was driving along the A303 on Salisbury Plain in my Land Rover Discovery at 65 to 70 miles an hour. I was overtaken by an Army heavy recovery vehicle, towing another heavy vehicle. This was reckless. My duty was to report this to the Royal Military Police and I did so. My evidence alone would have been quite sufficient to convict since I was experienced with this type of vehicle—I was not just a second lieutenant straight out of Sandhurst. However, the Royal Military Police never took a witness statement from me; therefore, no disciplinary action could be taken. If it had been, the penalty under summary jurisdiction need not have been severe—perhaps a £150 to £200 fine—but it would have deterred the driver from committing that sort of offence. Theoretically, it could be a charge of dangerous driving, an imprisonable offence, but my point is that there is no need to do that; there could be a short "flash-to-bang" time and a modest fine, and it should all be over in less than a week, using summary dealing. But suppose that the driver lost control of the vehicle—the 37 tons of these two vehicles—and ploughed into a school bus, causing numerous casualties; then I suspect the Royal Military Police would ring me up very quickly to ask for a statement. It would be an open-and-shut case of causing death by dangerous driving, and no doubt a prison sentence would follow.

When I raised the issue at a previous debate, the then Minister, the noble Lord, Lord Bach, never wrote back with an explanation; presumably there was none. My point is that if you have the moral courage to take decisions promptly and fairly, you can avoid much greater problems arising later and do so with less severe punishments.

1.10 pm

Lord Mackay of Clashfern: My Lords, I had not intended to intervene but, having listened to this debate, it seems to me—and I hope that the noble and learned Lord the Attorney-General will consider it—that there is scope for some way in which the defence attitude to the particular tribunal could be taken into account in the decision about which system, either the military or the civilian, will be employed. It also seems important to determine the time or the stage that the
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procedure has reached when a decision must be taken to ensure that someone subject to military discipline will not in effect be subject to two processes, one after the other.

1.11 pm

Lord Thomas of Gresford: My Lords, I express my gratitude to the noble Lord, Lord Campbell of Alloway, and pay tribute to his distinguished military and legal career, which makes him uniquely qualified to raise these matters. I also declare an interest as someone who has appeared in many courts martial and court martial appeals.

The relationship between the Attorney-General and the service prosecuting authorities is significantly different from his relationship with the Crown Prosecution Service. My noble friend Lord Garden has already referred to the evidence of Major-General Howell, the Army Director of Prosecutions, in giving evidence to the Armed Forces Bill committee. He said that in his view the Attorney-General had a right to be consulted on major cases, but he added that,

That was a firm declaration of independence.

The noble and learned Lord the Attorney-General in the last annual review that he published put it this way, saying:

So it is a "general oversight". That is very different from the relationship to the Crown Prosecution Service. In his introduction to that annual review, the noble and learned Lord the Attorney-General said that he appoints and superintends the Director of Public Prosecutions. Although the noble and learned Lord, Lord Mayhew of Twysden, said that no one had ever sought to define "superintendence", the Attorney-General explained the concept, saying:

He goes on to say that successive,

The Attorney-General is therefore ultimately responsible for CPS decisions, but not for prosecution decisions taken by the service prosecuting authorities. No doubt he is asked for advice, but there does not appear to be any formal mechanism. Indeed, it was the evidence of the heads of each of the service prosecuting authorities that the Attorney-General might well learn of cases not from them but from newspapers or letters from Members of Parliament. The noble Lord,
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Lord Corbett, pointed out that they were also anxious to emphasise to the committee that no suggestion was ever made to them either by the noble and learned Lord the Attorney-General or by the leading counsel, whom they consulted, that they should take decisions for political reasons.

I agree with the noble Lord, Lord Corbett, that it is right and proper that decisions to prosecute should not be influenced in any way by party-political considerations. However, they should most certainly be influenced by considerations of what is or is not the broad public interest, and I do not consider that the heads of the service prosecuting authorities are the appropriate people to determine what the broad public interest is. Nor is it right that the Attorney-General, who does not bear responsibility with decisions to prosecute in a particular case by way of court martial, should be roasted in Parliament later. I do not know what influence the noble and learned Lord the Attorney-General has with the Army Prosecuting Authority; I am sure that it is very considerable. However, in one court martial, now completed, the leading counsel for the prosecution was formally approached by the defence with the advice that he should seek the advice of the Law Officers as to whether to continue the prosecution on public interest grounds. I really do not know what happened; but if the Army Prosecuting Authority maintained its independence and did not consult the noble and learned Lord the Attorney-General, I am sure that the consequences were very unwelcome to that service, and to the Attorney-General, who had to defend and stand the criticism in this House.

There is a broad public interest involved. In a recent case in the United States, a Chief Warrant Officer Welshofer was convicted at a general court martial of negligent homicide and dereliction of duty for his part in the death of an Iraqi general during an interrogation that he and others were carrying out. His counsel, a Mr Frank Spinner, made this important point, which has been echoed by your Lordships today. He said that when men and women are sent out to a hostile country to fight and to put their lives on the line, the government must give them clear rules and back them up. He said:

Unlike many jobs or professions, the trade of the soldier is violent, and if he makes a mistake he is likely to cause injury or death. It is difficult to draw the line, as the noble and gallant Lord, Lord Bramall, said in his speech, about what should be punished and what should not.

Mention has been made of the rules of engagement. One of the problems in the immediate aftermath of Operation Telic, the invasion of Iraq, was that the rules of engagement did not change with the cessation of hostilities. Soldiers trained aggressively to attack and if necessary kill the enemy—they were given rules of engagement to that effect—found suddenly that they were required to act as an armed police force. However—this is the important point—they were given no fresh instructions, fresh training or fresh rules
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of engagement for many months. It most certainly was not a Northern Ireland situation of assisting the civilian police, with all the constraints that involved. Iraq was and is hostile and dangerous country, and our soldiers deserve to be spared the task of creating their own rules of engagement for the unexpected situation that arose there, whereby, instead of being greeted like heroes on the cessation of the fighting phase they were met with a bullet and a bomb.

The absence of clear rules makes it impossible for the soldier to determine which orders he received were lawful, which he must obey, and which orders are unlawful, which he should disobey to avoid criminal liability—because "I was only obeying orders" is not a defence. He must know where he stands. Both my noble friend Lord Garden and the noble Lord, Lord Moonie, have made that point. It is critical that military commanders, and indeed the political leaders behind them, lay down and communicate to the troops clear standards of behaviour towards the civilian population, prisoners of war and, in particular, detainees.

Fortunately, the vast majority of our troops are disciplined and professional, but from time to time their activities give legitimate cause for concern and prosecutions are considered. The problem as I see it is that the heads of the service prosecuting authorities may be too close to the action. They may come down heavily on the squaddie without examining what is wrong in the chain of command. In the Evans case—the example to which the noble and learned Lord, Lord Lyell, referred—the prosecution did not in my belief obtain, let alone consider, the rules of engagement in operation at the time as prepared by the High Command until asked by the defence to produce them weeks into the trial. I am sure from the prosecution opening that the prosecutors believed some sort of Northern Ireland rules of engagement had superseded the rules for invasion and fighting of the war, when that had not happened.

A second problem is that service prosecutors will prosecute a serviceman for criminal offences from time to time in the interests of military discipline, in circumstances where the Crown Prosecution Service would not. That was the stance accepted and relied on by the Crown in the case of Boyd, Hastie and Spear before the Judicial Committee of this House in 2001, a point made by the noble Lord, Lord Moonie.

While I fully support the creation of a director of service prosecutions under Section 355 of the Armed Forces Bill, I am unhappy that the Bill does not strengthen the superintendence of the Attorney-General. It is left to some vague convention that he be consulted in serious cases. I would go further. There are serious political issues with respect to the activities of British forces abroad, and there is a wide public interest. In my view the Attorney-General should have explicit ultimate responsibility for prosecution decisions, as he does with the CPS, and should be answerable directly for those decisions in Parliament. I should be interested to know if the noble and learned Lord would welcome that responsibility. Ultimately it is important that the public have confidence in the
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system, and that those who serve in the forces have confidence that, if they are in trouble, decisions to prosecute for serious crime will be made independently and fairly.

1.22 pm

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