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The order is another step towards increasing the effectiveness of the Law Commission. The chair of the Law Commission is required by law to be a judge

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either of the High Court or of the Court of Appeal. The result has been that a long succession of distinguished judges have chaired the Law Commission, starting with Lord Scarman—then Sir Leslie Scarman—who was the first commissioner, down to the present chair of the Law Commission, Sir Terence Etherton, and including one woman chair, who is now Lady Justice Arden.

It has been a convention that the chair is an experienced High Court judge who is appointed to be a Lord Justice of Appeal soon after finishing his or her term of office as chair. No doubt this prospect plays some part in persuading high-quality High Court judges to accept the office of chair of the Law Commission. The noble Lord, Lord Tunnicliffe, explained that the Constitutional Reform Act procedure for making appointments to the Court of Appeal does not fit in with this convention. We on these Benches agree that in future it should be the practice, though not a legal requirement, that the chair of the council should be someone who, at the time of appointment, already holds the office of Lord Justice of Appeal. I am interested in the noble Lord’s reference to the usefulness of giving training in administration to a senior judge through his or her chairmanship of the Law Commission. It suggests that the appointment as chair of the Law Commission might be a step towards holding the office of Lord Chief Justice, which of course is now very much an administrative appointment. However, other administrative roles are played by some of the judges in the High Court and the Court of Appeal.

It has certainly been regarded in the legal profession for many years that the Court of Appeal is the most demanding level of the judiciary in terms of workload and stress. The current rules provide for 37 places. It is clear—and I quite understand why—that none of those can be spared to become the chair of the Law Commission. Therefore, it is necessary and desirable to increase the number of authorised places for a Lord Justice of Appeal by one. I also understand that the effect of that will not increase the number of High Court judges sitting as such but that the place left open by the move of the chair of the Law Commission to the higher level will not be replaced, although I understand that there is no reason, and therefore no necessity, to reduce the number authorised by the present rules. We on these Benches are happy to support the order.

Lord Tunnicliffe: My Lords, I thank the noble Lord, Lord Henley, for welcoming me to this brief—we will see how well I cope. He asked whether the total number of judges would increase. The answer is no. The Lord Chief Justice has agreed with the Lord Chancellor that the extra seat on the Court of Appeal will be offset by a seat being left vacant in the High Court. The costs of the changes are around £23,000 per annum—the difference between Court of Appeal and High Court salaries with longer-term pension implications. He asked whether that meant there would be enough members of the High Court with all the implications for workload. My own assessment of my brief is that, since the chairman has to be a High Court judge, it all nets to zero, but I will write to the noble Lord if that supposition is wrong.



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The system has worked for 40 years, so why do we have to change it now? The premise of the Constitutional Reform Act 2005 was that it was no longer acceptable for the Executive to be in charge of selection and appointment to the judiciary. The independence of the judiciary is paramount if the rule of law is to be upheld. The change has resulted entirely as a consequence of the desire for increased transparency and accountability in judicial appointments, which Parliament clearly supported. Yes, there was an unwritten convention. Was that good enough? No; we need this as a necessary condition to allow the simultaneous holding of both jobs and to maintain the capacity of the Courts of Appeal.

The JAC is still in its early days and working hard to improve the speed of the process. However, it has made 400 appointments in its first year and continues to believe that it is able to fill those posts—and is filling those posts—to a high quality.

I thank the noble Lord, Lord Goodhart, for his general welcome of the order. He is quite right about the wider implications of the new procedure that has been agreed. We share with him the view that the slow implementation of Law Commission reports is a bad thing. The new approved process recommending the creation of new House of Lords procedure for appropriate or uncontroversial Law Commission recommendations will address that. The noble Lord is right to suggest that the old system seemed, to any layman, to be a way of persuading a judge to take on this onerous task. I would not say that that was the case. We are turning the convention into a simultaneous appointment. That process, in itself, will take some getting right. I made the point that justices will need more administrative experience and skills, but I could not possibly comment on whether that is a secure route to becoming Lord Chief Justice. I commend the order to the House.

On Question, Motion agreed to.

Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2008

4.57 pm

The Parliamentary Under-Secretary of State, Ministry of Defence (Baroness Taylor of Bolton) rose to move, that the draft order laid before the House on 21 May be approved.

The noble Baroness said: My Lords, first, on behalf of the House, I offer sincere condolences to the families and friends of Private Nathan Cuthbertson, Private Daniel Gamble and Private Charles Murray of 2 Battalion of the Parachute Regiment, who were killed on operations in Afghanistan last Sunday. I am sure that the thoughts of the whole House are with them.

In moving the Motion I shall speak also to the Armed Forces (Alignment of Service Discipline Acts) Order 2008 and the Armed Forces (Service Complaints) (Consequential Amendments) Order 2008. I will say a few words about each of these, beginning with the continuation order. The Armed Forces Act 2006 provides for the three service discipline Acts—the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957—and the 2006 Act to continue in force for a maximum of five years, subject to an annual Order in

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Council in each of the intervening years. The continuation order that we are considering today is such an order. It is a routine item of business, but it is vital because it will ensure that the Armed Forces Act 2006 and the three service discipline Acts will remain in force for a further 12 months. When the 2006 Act was agreed by Parliament, it was expected that it would replace the three service discipline Acts. I can confirm that it remains our intention to repeal the service discipline Acts, but we need them to continue in force until the 2006 Act is fully in operation. That is why they are included in the order.

I will give a short update on progress in implementing the 2006 Act. As I reported during the corresponding debate last year, officials are engaged in delivering the significant amount of work that will be needed to deliver the new single system of service law for our Armed Forces. Foremost among this work is the large amount of secondary legislation that will add much of the necessary detail to the provisions of the 2006 Act. Altogether, we now expect to produce around 80 statutory instruments, directly or indirectly, as a result of the 2006 Act. This is more than the 65 that we anticipated last year, and is due to the need for consequential changes to be made through separate statutory instruments, rather than through a large single order in the way that we had originally envisaged. The figure also allows for commencement orders, though these are not subject to parliamentary procedure.

So far, we have laid about a dozen of the statutory instruments that we expect to produce. Many more are ready, apart from the need to add their transitional provisions. These transitional provisions will ensure that there is a working bridge between the old legal system and the new one. The overall transitionals regime will be complex, because of the extent of the changes made by the 2006 Act. The transitional provisions specific to particular statutory instruments will relate to a main transitionals order.

We propose to lay this main transitionals order during the summer. It will be subject to negative resolution. Once it has been laid, the way will be clear for us to lay the other statutory instruments that have a transitional element to them. Since it is not possible to introduce some parts of the new service disciplinary system in advance of the other parts, we intend that all the statutory instruments should take effect together. Our target date for this is January next year.

The majority of the statutory instruments are subject to negative resolution, so we propose to lay some during the summer months—the orders will still come into effect in January 2009—rather than lay them in much greater numbers in the autumn. We recognise that it would not help the House if they were all to be laid at the same time, so officials have looked to assemble statutory instruments in groups and lay them in relevant batches. We have done this in discussion with officials of the relevant parliamentary committees. By doing this, our aim has been to present the information in a way that assists parliamentary scrutiny and avoids the system being overloaded. The thinking here is that we give Parliament as much time as possible in which to consider the orders before they take effect. There can be no suggestion of them being quietly laid during

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the Recess and coming into force without proper time for parliamentary consideration. Officials have therefore been in touch with relevant committee staff to outline our approach. Although we make it clear that the programme is still subject to significant change, our efforts to plan and co-ordinate the work have so far been given a warm welcome.

There is a great deal to be done but we hope that it should be possible to have everything in place in time to meet the January 2009 deadline. This will then become the point at which the Armed Forces will move from the three separate systems in place at present to the single up-to-date system that will replace them. Among other things, this change to a single system will have a bearing on service police investigations, summary hearings by commanding officers, prosecutions and court martial trials. The statutory instruments are just part of the picture. The services will also need to have manuals, guidance, instructions and training for the wide range of personnel and organisations involved in the service justice system. Work is therefore going on to provide everything the services will need to ensure that they will be able to change to the new system with the minimum of disruption.

There are two other orders before us. The first amends various sections of the service discipline Acts in order to align them more closely with the 2006 Act. The changes are likely to help ease the transition to the new system if they are made before the main changes. They also introduce some safeguards which are in the new Act. This is being done now to ensure greater coherence between the legislation as it stands and the legislation as it will be when the 2006 Act comes into force. The order also ensures that some areas of incompatibility between the two systems are removed and introduces a number of safeguards to the current system.

One measure in the order aligns the service discipline Acts with new provisions in the Armed Forces Act 2006 in relation to powers of arrest. Changes made by the order will allow service policemen to arrest service personnel of all ranks without the need to seek prior approval and to arrest a person whom they reasonably suspect of being about to commit a service offence. At present, the service police need to have prior approval if they wish to arrest somebody above the rank of warrant officer and they can make an arrest only while an offence is being committed or afterwards. These are therefore important changes for the service police, which provide them with greater powers than they have at present. The new powers are, however, broadly similar to those enjoyed by the civil police.

The order also removes the ability of a judicial officer to authorise post-charge custody where the accused has previously deserted or gone absent without leave after being charged with an offence and released from custody. Authorising custody for this reason alone cannot be justified merely because the accused has previously absconded and the provision is therefore not relied on by judicial officers. The amendment clarifies the legal position.

Under the service discipline Acts, the prosecuting authorities can require an accused person’s commanding officer to consider a charge other than the charge on

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which the accused originally elected to be tried by court martial. This could create a disincentive to the accused electing trial by court martial and could therefore be subject to challenge. The amendments in the order allow the prosecuting authorities to refer a charge back to the commanding officer other than that on which the accused elected, but this may not be done without the consent of the accused. The one exception to this would be if the charge referred were to be one which the commanding officer could have heard if the accused had not elected trial by court martial.

The order also removes the ability of the reviewing authorities to activate suspended sentences. This will align the Service Discipline Acts more closely with the provisions of the Armed Forces Act 2006, ensuring that only a court can activate a suspended sentence. The one exception to this rule is in relation to the Royal Navy where, until the Armed Forces Act 2006 comes into force, RN commanding officers will still be able to activate a suspended sentence of detention passed by a court martial. The order also provides for appeals against the activation of suspended sentences.

Finally, the order repeals all powers of the reviewing authority to postpone the date on which a sentence is to take effect. The exercise of this power by a reviewing authority is not compliant with the European Convention on Human Rights, and the court martial will not have such a power under the 2006 Act.

I turn now to the third and final order. Section 334 of the 2006 Act and the regulations which have been made under that section allow members of the Armed Forces to make complaints about matters relating to their service. The Working Time Regulations 1998, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003 provide that a complaint cannot be presented by a member of the Armed Forces to an employment tribunal established under any of those regulations unless a complaint under service complaint procedures has been made about the same matter and not withdrawn. Quite simply, the order that we are considering today amends each of these regulations so that they correctly refer to the service complaints system as amended by the 2006 Act.

I should say a word about ECHR issues. Her Majesty’s Government have given an undertaking that Ministers moving instruments subject to the affirmative procedure will tell the House whether they are satisfied that the legislation is compatible with the rights provided in the European Convention on Human Rights. The first order that we are considering is a brief document that raises convention issues only in that it maintains in force three Acts that, as they have been amended over the years, reflect convention rights. As for the 2006 Act, we consider that its provisions are compatible with convention rights. The second order will help to preserve convention rights and the third order has no bearing on them at all.

In conclusion, I hope that it is helpful to have a brief update on the progress towards full implementation of the legislation. We will look forward to further

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discussions not only today but in the autumn when other elements of the statutory instruments are available. I beg to move.

Moved, That the order laid before the House on 21 May be approved. 21st Report from the Joint Committee on Statutory Instruments.—(Baroness Taylor of Bolton.)

Lord Astor of Hever: My Lords, I start by joining the Minister in sending my condolences and those of my party to the families and friends of those three members of the 2nd Battalion The Parachute Regiment, so tragically killed in Afghanistan. I thank the noble Baroness for presenting these orders and, through her, I also thank those responsible for drafting the Explanatory Memoranda, a duty performed with the utmost clarity. The continuation order is much the shortest of the documents before us and is altogether the most important. It serves to remind us and the Government that the existence of the Armed Forces is not simply a matter of executive decision but also a matter requiring continuing parliamentary consent. This should also serve to remind us—and again, remind the Government—that Parliament, having provided the existence of disciplined Armed Forces, also has duties with regard to their pay and conditions, their right equipment and their deployment, as is being increasingly recognised. Where the Government fall short of their duties in any of these matters, they must accept criticisms from within the Armed Forces themselves and from all parts of this House. This is not a party-political matter. It is a parliamentary matter. We and the Armed Forces themselves are entitled to expect that shortcomings will be recognised and will be remedied.

The stated object of the service complaints order is so that the service authorities will be put on notice of an incipient complaint by a service man or woman to civil jurisdiction. This is to be achieved by initiating a service complaint first. Both I and my honourable friends in another place expressed our concern generally at the intermingling of service law and civilian law. It was one of the deliberate influences on the formulation of the Armed Forces Act 2006. This order seems to me to exemplify just such confusion. I hope the Minister will be able in her reply to persuade me otherwise.

Finally, I turn to the much longer and altogether more complex order, the Alignment of Service Discipline Acts Order, designed to amend the three single service Acts until the omnibus Armed Forces Act comes fully into effect. This, we are told, should be in January next year, some six or seven months from now. Thus, it is very much an interim measure. Noble Lords who have looked at the order will have observed that it comprises 14 pages of closely printed insertions and deletions and a three-page schedule of transitional provisions. It prompts me to ask the Minister how these changes will be promulgated. Will the Acts be reprinted? If not, how will those affected—to say nothing of those advising or representing them—be able to ascertain clearly what the law is in relation to these matters at this particular juncture?

5.15 pm

Lord Lee of Trafford: My Lords, first I associate these Benches with the earlier tributes to the three members of the Parachute Regiment who so tragically

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lost their lives in Afghanistan. On these Benches we also support the thrust of these orders, but there are a small number of detailed questions which I would like the noble Baroness to answer. I appreciate that one or two may be of a certain technical nature. Therefore, if she would prefer to write to me I would totally understand. First, on the subject of the continuation order itself, what progress has been made on producing some form of loose-leaf volume which would contain all these separate Acts and orders for the use of practitioners both inside and outside the Services and for the judge advocates?

I have two questions on the Armed Forces (Service Complaints) (Consequential Amendments) Order. First, what happens if, on a complaint being made, a complainant is dissatisfied with the redress offered? I refer to where a complaint has been accepted by the defence council. Is the individual then entitled to make his complaint to an employment tribunal? Secondly, linked to that question, what is the effect on the tribunal proceedings of a decision made by the defence council? Do the employment tribunal proceedings start afresh or will the findings of the defence council be in evidence before it? In other words, to what extent is the employment tribunal influenced by the findings of the service authorities, or do they hear the case de novo?

On the Armed Forces (Alignment of Service Discipline Acts) Order, I am glad to see that there is an attempt to bring uniformity of powers and procedures to the three services. That makes it even more questionable why the Government resisted the Liberal Democrat attempts to allow courts martial to be heard by a mixed panel of all three services during the passage of the Bill.

When we had this debate last year, my noble friend Lord Thomas of Gresford spoke from these Benches. I should like to quote a paragraph from what he said:

The question to the noble Baroness that follows from that is: has there, during the past 12 months, been any increase in the resources made available to the prosecuting authorities?

Finally, what is the proportion of courts martial between the three services? Does any difference indicate a differentiation of resources? Having put those specific points to the Minister, I confirm that we are happy to support the orders.

Baroness Taylor of Bolton: My Lords, I thank those who have contributed to the debate for their overall welcome of the orders before us. They are, as has been pointed out, quite detailed. Some of the points go very wide and we may return to them on other occasions.



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