HC Deb 28 March 1994 vol 240 cc656-61

'.—(1) The Secretary of State may by order direct that any provision of sections 29 to 33 of this Act shall apply, subject to such modifications as he may specify, to any proceedings to which this section applies.

(2) This section applies—

  1. (a) to proceedings whereby a charge is dealt with summarily under Part II of the Army Act 1955;
  2. (b) to proceedings whereby a charge is dealt with summarily under Part II of the Air Force Act 1955;
  3. (c) to proceedings whereby a charge is summarily tried under Part II of he Naval Discipline Act 1957;
  4. (d) to proceedings before a court martial constituted under the Army Act 1955;
  5. (e) to proceedings before a court martial constituted under the Air Force Act 1955;
  6. (f) to proceedings before a court martial constituted under the Naval Discipline Act 1957;
  7. (g) to proceedings before a disciplinary court constituted under section 50 of the Naval Discipline Act 1957;
  8. 657
  9. (h) to proceedings before the Courts-Martial Appeal Court;
  10. (i) to proceedings before a Standing Civilian Court; and it applies wherever the proceedings take place.

(3) An order under this section shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.[Mr. Maclean.]

Brought up, and read the First time.

Mr. Maclean

I beg to move, That the clause be read a Second time.

The Ministry of Defence wishes the new rules in criminal proceedings concerning inferences to be drawn from silence in clauses 29 to 33 to apply as closely as possible to disciplinary proceedings under the service discipline Acts in order to avoid a disparity between civilian and service law. The new clause gives the Secretary of State power to apply those rules to service disciplinary proceedings and to specify whatever modifications he deems appropriate. Such modifications will be required because of the ways in which service disciplinary proceedings differ from those in the civilian courts. Those investigating offences and hearing proceedings under the service discipline Acts follow different procedures from their civilian counterparts and the application of the provisions will need to reflect that.

The disciplinary proceedings to which the clauses may be applied are summary proceedings and courts martial, constituted in accordance with the service discipline Acts: the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. Those proceedings may take place anywhere in the world where the armed forces are situated and the rules will apply wherever they take place.

I commend the clause to the House as providing a means to ensure that service personnel are treated on a similar basis to civilians in regard to the effects of clauses 29 to 33, whether they are dealt with under service law or under the civilian criminal law.

Mr. Michael

Clearly, it would be wrong for there to be major disparities between the criminal law and the law applying to the armed forces. Having said that, it is also clear that there are major and grave deficiencies in clauses 29 to 33, which we shall highlight when we debate the clauses. It seems that it is not helpful or appropriate to pre-empt that debate. We shall seek to amend clauses 29 to 33 in due course and to delete parts of those provisions. If we are successful in those endeavours, our improvement of the Bill will also apply to new clause 75. That makes our position clear.

Having made clear our distaste for much of what is in clauses 29 to 33, I do not intend to detain the House to debate those points this afternoon.

Mr. Robert Maclennan (Caithness and Sutherland)

I am surprised that the Minister should have brought forward such a measure at this stage in the proceedings without any prior discussion. I am unhappy about a measure which is highly controversial in civil proceedings and which runs against the recommendations of the Royal Commission, under the chairmanship of Lord Runciman, being imported on the say-so of the Ministry of Defence into courts martials, which operate under different rules. The rules about the inferences to be drawn from silence are controversial enough in the civilian courts and, as the hon. Member for Cardiff, South and Penarth (Mr. Michael) has said, we shall come to that issue in due course.

It should not be thought that the new proposal is necessarily appropriate—even if clauses 29 to 33 go through—in the different circumstances of disciplinary proceedings before a court martial. So far as I am aware, questions of convincing juries do not arise in such circumstances and, if there is any case for modifying the right to silence, it is because of the effect that it may have on the attitude of juries. I do not accept that that has sufficient weight to change the long-standing law of the country and, for courts martial, no such comparable consideration would seem to arise.

Dr. Godman

I listened carefully to what my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael) said, but I wish to ask the Minister a couple of questions. Following the comments of the hon. Member for Caithness and Sutherland (Mr. Maclennan), the proposal is at best controversial and at a worst dodgy. The new clause seeks to bring clauses 29 to 33 into Scottish law by way of a military back door. It would appear that much of United Kingdom military law slavishly follows English criminal law and criminal procedures. [HON. MEMBERS: "Hear, hear."] I see that there is some agreement.

Military law in the United Kingdom need not inevitably be completely compliant with one jurisdictional system, since there are marked differences between military law, Scottish criminal law and English criminal law. May I quote from Professor D. M. Walker's book, with which the Minister should be familiar, as he has some sort of degree in Scots law. In the book "The Scottish Legal System", published in 1992, Professor Walker said: While it is no doubt desirable to have a common code of service law for all personnel, it is unfortunate that the code adopted is based entirely on English criminal law, which may cause difficulties for Scottish counsel or solicitors defending and may give rise to problems of great difficulty on appeal, since Scottish judges do not profess to know English criminal law. I suspect that officials and the Minister have not thought about the case of an appeal made by a Scottish soldier who is convicted by a court martial sitting in Edinburgh castle. Due to the divergences between the two systems, such a soldier would have a powerful case to argue against the inadequacy and, I would say, the rottenness of that law.

Scottish soldiers serving, for example, with a Scottish regiment in Scotland would be subjected to an entirely different regime than is the case for their pals in civvy street. Since the Minister said in Committee that the Government have no intention of taking away from the Scottish legal system the right to silence, what we have is bad law. It is bad law to treat military law as the merest appendage of English criminal law. It is utterly illogical in relation to Scottish personnel who are serving in Scotland and those, for example, serving with a Scottish regiment overseas. If the proposal were to go through, what would happen to a Scottish service man or woman who seeks to appeal against the decision of a court martial, given that a court martial is entirely different from a jury trial at the sheriff court or in the High Court? I remind the Minister that Professor Walker said: The Courts-Martial (Appeals) Act of 1951 (now the Courts-Martial (Appeals) Act 1968) constituted a Courts-Martial Appeal Court consisting in Scotland of such Lords Commissioners of Justiciary as the Lord Justice-General may nominate, being uneven in number and not less than three. Incidentally, Professor Walker is the emeritus professor of law at Glasgow university. He goes on to say: A person convicted by court-martial in any of the services may, with the leave of the Appeal Court, and subject to certain conditions, appeal against his conviction. Does that mean that, if the measure goes through, the Scottish soldier of whom I spoke would have to appeal to the English Court of Appeal? It is as absurd as that.

Mr. Maclennan

I hesitate to interrupt the hon. Gentleman, who is making a number of good points, but does he find it as objectionable as I do that no Scottish Minister is present to listen to the arguments? In Committee, there were no Scottish Ministers present, despite the fact that major parts of the Scottish criminal law were being amended. Is not that worse than discourtesy? Is not it an abuse?

Dr. Godman

I am grateful to the hon. Gentleman. With him, as the other Scots Member of the Committee, I have complained loud and long over the Government's failure to put a Scottish Office Minister on the Front Bench. There was a Scottish Office Minister present—the hon. Member for Edinburgh, West (Lord James Douglas-Hamilton)—who moved new clause 73 and disappeared in a cloud of dust. It is a disgrace, as I have said all along. Those measures should not be introduced in Scotland by means of this useless, clumsy piece of legislation.

It is important to consider the right of a soldier, a sailor or an airman to appeal when he or she has been convicted of a military offence at a court martial set up, for example, in Edinburgh or Inverness. Professor Walker says: The practice at the High Court of Justiciary sitting as Court of Criminal Appeal is followed"— in such a case— and the powers of the court are similar. The court will allow an appeal if it thinks that the finding of the court-martial under all the circumstances of the case is unsafe or unsatisfactory, or involves a wrong decision on a point of law, or that there was a material irregularity in the course of the trial, but the court may dismiss an appeal on a technical point if it considers that in the circumstances no miscarriage of justice has occurred. Will that Scottish soldier have to appeal to an English Court of Appeal, given that the military law under which he is being tried at the court martial in Edinburgh is based on English law, or will such an appeal, as is the case now, be heard by members of the High Court of Justiciary? By that one example, we can show the illogicality of the proposal and its irredeemable unfairness to service personnel serving in Scotland, where we have an entirely different legal system.

Will the matter be pushed to one side, like everything else, by the odd-job lot in government? I fear that that may be the case. I should like to hear an answer from the Minister about a convicted service man's appeal rights under the new clause.

5 pm

Mr. David Trimble (Upper Bann)

I apologise for intervening in this part of the debate as I did not hear the opening speeches. I do so to react to what I did hear, especially the comments of the hon. Member for Caithness and Sutherland (Mr. Maclennan). He said that clauses 29 to 33 were being introduced primarily with regard to jury trials. I disagree because the truth is quite the reverse. As everyone knows, juries have always taken silence into account. We need clauses 29 to 33 precisely to ensure that non-jury courts take silence into account. That is part of the reason why similar provisions were introduced in Northern Ireland almost six years ago. We knew that the judges in single-judge courts were not taking into account matters that common sense said that they should. The clauses are especially useful in this context.

The hon. Member for Greenock and Port Glasgow (Dr. Godman) referred to clauses 29 to 33 as affecting or abolishing the right to silence. They do not. If hon. Members want to see a new clause that would affect the right to silence, they should look at my new clause 63. New clause 76 does not affect the right to silence. It concerns merely the question of inference from silence, which does not abridge the right to silence.

Mr. Maclean

In answer to the points made by the hon. Member for Cardiff, South and Penarth (Mr. Michael), we robustly reject any suggestion that clauses 29 to 33 are improper, inadequate or badly drafted. As we said in Committee, they have received widespread support and we look forward to a robust debate on them.

It is clear that service law needs to mirror and closely to follow the changes that we have made in civilian law. I do not know when military law was invented. There is no point in raking over the historical coals that decided that the manual of military law would be based initially on principles of English law rather than Scots law. That is clearly a fait accompli. It is, therefore, incumbent on us to ensure that the manual of military law keeps pace with the civilian law on which that manual was based. All hon. Members will agree that the military must operate by the same code of practice and by the same manual of military law throughout the United Kingdom. Unique and distinctive as is the contribution of the Scots to the British armed forces, it would be absolutely impossible and impractical to try now to operate a separate code of military law based on Scottish principles of law.

Dr. Godman

I seek an assurance from the Minister that, in the example I gave, someone convicted by a court martial in Scotland would have the right, as is the case now, to appeal to an Appeal Court in Edinburgh.

Mr. Maclean

I can absolutely give that assurance. The point is that the Appeal Court in Edinburgh will implement whatever law it is deciding on at the time. The Appeal Court in Edinburgh may implement much mercantile law; much world mercantile law is based on principles of English law. The Appeal Court may implement European Community laws, and is perfectly able to do that. At the moment, the Appeal Court is making an appeal decision based on the manual of military law, which the hon. Member for Greenock and Port Glasgow (Dr. Godman) says is based on English principles. As an Englishman, he does not like that. As a Scot, I am happy to accept that state of affairs.

The Appeal Court in Edinburgh is perfectly capable of coming to judgments based on the manual of military law, whoever invented it and whichever principles it contains. The fact that the manual may be amended and adapted to take in the principles enshrined in clauses 29 to 33 does not invalidate the case for the Appeal Court in Edinburgh to hear any appeals from any soldiers tried in courts martial in Scotland. Of course the Appeal Court in Edinburgh can do so just as excellently as it does now.

The hon. Member for Upper Bann (Mr. Trimble) was absolutely right in his brief contribution because he mentioned the Diplock courts. That has pulled the rug from under the argument advanced by the hon. Member for Caithness and Sutherland (Mr. Maclennan). It is possible to proceed with new clause 75 now, as my right hon. and hon. Friends in the Ministry of Defence wish, because it will merely implement the sensible changes in the manual of military law which are included in clauses 29 to 33. No discourtesy was intended. The House would take it amiss if I told it that the Ministry of Defence had noticed that the change would be necessary for military law, but that we intended to do nothing about it. Of course it was right to so something about it. I commend the new clause to the House.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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