CUSTODY RULES (Hansard, 6 April 2000)

§ Mr. Key
I beg to move amendment No. 4, in page 30, leave out lines 22 to 24 and insert— '(3) An order under this section shall not be made unless a draft of the instrument has been laid before, and approved by, a resolution of each House of Parliament'.

§ Mr. Deputy Speaker
With this, it will be convenient to discuss amendment No. 5, in page 31, leave out lines 6 to 8 and insert— '(3) An order under this section shall not be made unless a draft of the instrument has been laid before, and approved by, a resolution of each House of Parliament'.

§ Mr. Key
The purpose of the amendments is clear: they would provide for closer parliamentary scrutiny of the Secretary of State's ability to make rules regulating proceedings preliminary to, and at, a custody hearing. The rules apply to the arrangements to set up videolinks.
In this remarkable clause there is a long list of items for which the Secretary of State can make provision in making rules. That list includes items that we might expect: arrangements preliminary to the proceedings; the representation of the person to whom the proceedings relate; the admissibility of evidence; procuring the attendance of witnesses; the immunities and privileges of witnesses; the administration of oaths and so on.
At the end of that list, subsection (3) says: Rules under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. We are being asked to agree to those statutory instruments being made under the negative procedure, whereas they should be subject to the affirmative procedure. We realised in Committee that the Minister has set up arrangements that are uncertain—and, frankly, if I were facing a court-martial or summary proceedings, I would want to be sure about the processes to which I was to be subject.
In Committee, I challenged the Minister to demonstrate a videolink in action. That was a reasonable request, given that many of the Bill's provisions relate to the use of such links on active service. I asked for a demonstration of a videolink between the House of Commons and Pristina in Kosovo, because we had repeatedly been told that such links were in regular, indeed daily, use and that there was no problem with that.
I made my request on a Tuesday and suggested that by the time we met on the Thursday, the Minister might have been able to set up a videolink to allay the Committee's fears. However, the Minister did not turn up with the goods, and his reason was that the equipment we used for the trial was hired and is no longer in our possession. When one thinks about that it is quite natural. I have to disagree; I do not think that it is at all natural. Ministers have been telling both Houses that the technology exists, that it is in frequent use and that it is widely available.
On that occasion, the Minister rounded off his comments by saying: We will enter a proper system of purchasing once we have decided exactly what we want to use.—[Official Report, Standing Committee D, 9 March 2000; c. 187.] I remind the Minister that we have a deadline of 2 October, when the Bill will come into force if it is passed today. It would be very smart procurement indeed to get all the kit necessary by then.
Far from being a tried and tested system, it seems clear that we are dealing with an untried and untested system. Even worse, the whole basis of our armed forces discipline system on operations will henceforth be dependent on those untested videolinks.
1180 It is also notable that the Minister's comments contrast rather drastically with those of the Minister for Defence Procurement in the other place. On 16 December, she said: The services are fully capable of exploiting successive advances in technology, which they already deploy with great success. Video technology is in day-to-day use. It was in constant use throughout the recent crisis in Kosovo. The armed services see no reason why that technology should not be deployed equally successfully in other operational environments and for purposes such as those envisaged in the Bill. Clause 8 includes the introduction of the use of live television links as a means of fulfilling the new custody rules, particularly when the logistical circumstances may be difficult. The clause was slightly amended by the Government in Committee in the other place to broaden the use of the technology to all custody hearings, and not only those being brought before a judicial officer. The amendments in the other place also clarified the fact that live television links and visual transmissions could be undertaken via other media, such as the internet.
With regard to the practicalities of using video equipment, the Minister for Defence Procurement said in the other place: I hope to offer the Committee some reassurance on that point. I shall refer to the Army in particular, since it is likely to have the greatest number of personnel in remote locations. The Army would seek to use video link technology where operational or training circumstances mean that a face-to-face hearing is not possible within the required time-frame—[Official Report, House of Lords, 16 December 1999: Vol. 608, c. 351.] On Second Reading, the Minister confirmed that the MOD was currently trialling video equipment to ensure that the quality of the equipment is suitable for the purpose for which it will be used. The equipment currently used operates at 28 kilobytes. The equipment is capable of showing a wide-angle picture of an entire room or of zooming in on an accused in fine detail, just as it is used in court hearings, especially those involving children. Although we can use Inmarsat—the international maritime satellite—commercial links, there is no question that commercial television satellites would be used, because we have access to other means of communication.—[Official Report, 17 February 2000; Vol. 344, c. 1201.] The Defence Committee was also intrigued to be told about video conferencing. The director of personnel services for the Army explained to the Committee that video conferencing happened already. Apparently, there are daily video conferences with Pristina. It was unfortunate that we were not allowed to see that. The director had spoken to a judge advocate on a video conference facility as part of a trial. The judge advocate will have a portable system at home with him, and it will be possible to dial him up almost literally at any time. There will also be static video conferencing suites and portable systems that can be taken home, so a duty judicial officer will be available who can be wired up to pretty well anywhere in a world because, as the director said: IT-wise now, wherever our soldiers go, we have the IT system. In Standing Committee the Parliamentary Secretary, Lord Chancellor's Department was a little more bullish. She said: Generally speaking, video conferencing is up and running, but it needs to be trialled for the purposes of the Bill.—[Official Report, Standing Committee D, 7 March 2000; c. 171.] 1181 I found that surprising because on 1 February I received an answer to a parliamentary question to the Parliamentary Secretary. I asked her if she would list the companies that supply, provided and service secure videolink technology for use in British courts; and what arrangements are in place to prevent the interception of transmissions by third parties. The Minister replied: Videolink technology is used occasionally in the Crown Court to enable witnesses to give evidence from abroad. The installation is arranged locally by the party whose witness is giving evidence in this way. No information is held centrally on the suppliers used or the arrangements put in place to prevent interception. A pilot is currently in place to provide a videolink between Strangeways prison and the Crown Court in Manchester.—[Official Report, 1 February 2000; Vol. 343, c.545W.] So on 1 February that was the extent of the Government's experience.

§ Mr. Peter Viggers (Gosport)
Does my hon. Friend agree that the Parliamentary Secretary, Lord Chancellor's Department took part in the Standing Committee and that when Ministers have assisted in taking a Bill through its Committee stage, it is a courtesy to the House that they should be present in the Chamber on Report to assist the House with their evidence and continue to give their support?

§ Mr. Key
My hon. Friend and I both served as Ministers in the previous Government and I wholly agree with him, but then we are not dealing with a normal Government. We saw from the lack of contributions from the Back Benches in Committee that we are dealing with a steamroller rather than a Government.
Between 1 February and when the Parliamentary Secretary spoke to our Committee, the Government's experience had changed. The Minister noted that the Judge Advocate General was satisfied that the equipment worked and further explained that the video equipment was portable. She said that the equipment was the size of a suitcase. It sounds to me a bit like "Mission Impossible". While it was clearly acceptable for the Judge Advocate General to examine the technology in action, it was not possible for the Members of the House charged with scrutinising the Bill to see it working.
In their eagerness to get the Bill on the statute book, the Government seem to have got ahead of themselves. They set the Bill's provisions with blasé faith that videolinks would work in the prescribed circumstances.
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Our inquiries have shown that video conferencing for the purposes of the Bill is still at the trialling stage. The equipment has not been proven, yet it remains at the heart of the Bill's provisions. In Committee, we also raised concerns about the security of videolinks. Once again, the Government failed to give adequate reassurance. We were told that interception was possible. I have made the point that in a modern television war, in which visual propaganda can prove an immensely effective weapon, as has been so ably demonstrated by the Iraqis and then the Serbs, one dreads to think what would happen if a disciplinary visual feed were intercepted. The Minister said that the narrow beam width would prevent interception by casual hacking and eavesdropping. I wonder how many intelligence surveillance operatives engage in casual hacking activity.
1182 My hon. Friend the Member for Reigate (Mr. Blunt) also raised the important point that such transmissions were not only vulnerable to interception but left an electronic signature that could betray an unit's presence and location—a signature that could provide the aiming point for a guided weapon. The lack of firm and convincing answers is the reason why we are seeking to amend the Bill so that the rules governing the use of the technology are subject to the affirmative procedure.
The House needs a second look at this issue. The Government cannot gamble with our armed forces' operational effectiveness in this way. We hope that they will not seek to override the legitimate right of Parliament to see that only sound and thoroughly considered legislation emerges from this place. It is a matter of pure practicality. We believe that simply to trust the Secretary of State to make rules is against the interests not only of Her Majesty's forces but of natural justice. It is against the interests of natural justice that we are asking people to be tried in front of a video camera system that is unreliable, can be intercepted, and for which the technology does not yet exist. Yet, by 2 October, the Government plan to have the Bill up and running and in operation on a daily basis. We are very doubtful about that, and I hope that the Minister will be able to give us some satisfaction.

§ Mr. Menzies Campbell
I have some sympathy with the amendment, but not because I know much about videolinks and such matters. I do not propose to follow the hon. Gentleman down that path, although he made a number of trenchant points. As the hon. Gentleman said, the amendments would require the rules in the clause to be the subject of affirmative rather than negative resolution. The distinction between the two is often a fine one, but I have always understood that under the affirmative resolution procedure, the House of Commons is asked to engage more intimately in the process so as to pass judgment on the matters that are contained in subordinate legislation.
Clause 8(2) at the top of page 30 of the Bill, as amended in Committee, says that rules may be made in relation to a number of matters. One can draw a distinction between rules made for essentially procedural issues such as arrangements preliminary to the proceedings; the representation of the person to whom the proceedings relate;…the administration of oaths;…the appointment of persons to discharge administrative functions under the rules and other elements of the criteria that fall into a rather different category, namely: the admissibility of evidence;…the immunities and privileges of witnesses. The admissibility of evidence may go right to the very heart of the proceedings and whether the proceedings will be held to have been concluded in a way that is favourable or adverse to the person who is the subject of them. Immunity for witnesses in certain circumstances means that witnesses may be available to give evidence in the knowledge that they can give evidence that might on the face of it incriminate them, but which cannot be used on subsequent occasion to institute proceedings against that person. Those are issues of fundamental importance but of a different character to the procedural arrangements that the rest of the subsection appears to embrace. That is why there is some justification for the view that, if rules 1183 are to be made in relation to the admissibility of evidence, the immunity of witnesses and the consequences of that immunity for subsequent proceedings, the House of Commons ought to pass judgment on those rules by way of affirmative resolution rather than accepting them by way of negative resolution.
These are matters more of legal importance than of military significance, but the purpose of the Bill is to put in place proper legal structures affecting the incorporation into the law both of Scotland and of England and Wales of the provisions of the European convention on human rights.
Admissibility of evidence and the immunity of witnesses are precisely the kind of issues that human rights lawyers would regard as being embraced by that convention. That is why the Minister should consider giving effect to the amendment, at least in so far as it relates to subsections (2)(c) and (2)(e), and why I have some sympathy with the amendment and the purpose that lies behind it.

§ Mr. Viggers
The debate is taking place only because of the enactment of the Human Rights Act 1998, which requires the European convention on human rights to be incorporated in our law by 2 October 2000. It is crucial that any legislation that we enact be compliant with the convention. Frequently in Committee the Minister answered points put to him by saying that it was essential that we should ensure that the law is compliant—a word that we heard many times—with the European convention.

§ Mr. Blunt
Does my hon. Friend agree that although we heard many times that it was necessary to be compliant, we were never given the benefit of the legal advice upon which the Government had come to their conclusions—conclusions which the Opposition would almost certainly dispute?

§ Mr. Viggers
Indeed, and when the Minister was cross-examined as to whether he could confirm that we would be compliant, his line throughout was that we must, if necessary, err on the side of compliance; we must not take risks with compliance; we had found ourselves not to be compliant in the past—if in doubt, so to speak, surrender. That motto is not, I think, a cap badge of any known Army unit.
We need to ensure that the detailed provisions are compliant. The details listed are quite wide. Rules will be made in relation to

(a) arrangements preliminary to the proceedings;

(b) the representation of the person to whom the proceedings relate;

(c) the admissibility of evidence;

(d) procuring the attendance of witnesses;

(e) the immunities and privileges of witnesses;

(f) the administration of oaths;

(g) circumstances in which a review…may be carried out without a hearing;

and so on.
1184 We are trying to ensure that we are compliant with article 6 of the European convention. The principal statement in that article is that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The subsidiary points include, under (d), a person's right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. How can we be absolutely certain that the European convention will be complied with, under the rules proposed by the Government? How can we be sure that the European convention will be satisfied if the attendance of a witness is by way of video conferencing? That is a crucial point. What does "attendance" mean? Does it mean attendance in a room physically with the accused, or in attendance by a video recording?
If we do not know the answer to that, and if attendance does not have the usual meaning, but means visibility through a videolink, and if the European convention does not accept that attendance means presence through a videolink, we will not have complied with the convention and we will have wasted our time dealing with the clause.
Therefore it is important, as we move into the unknown territory of trial through the medium of video conferencing, that there should be every opportunity for the House, the nation and the armed forces to have the expert advice and comment of lawyers conversant specifically with the law of the new media.
The Minister who gave specific, expert evidence on the subject to the Committee was the Parliamentary Secretary, Lord Chancellor's Department. It was helpful that she was present and able to give us authoritative advice. It is unfortunate that, typically of the Government, the Parliamentary Secretary is not present to advise the House as the Bill moves through Report and Third Reading. It would have been helpful to have her with us.
However, we can demand and should expect as of right that the Government accept that the provision should be subject to the affirmative rather than the negative procedure, if it is to pass into law; that the House should have a further opportunity to discuss the clauses and the rules in the light of expert advice which can be given outside the House; and that we are given another bite at the cherry on the rules. I therefore support my hon. Friend's amendment.

§ Mr. Martin Bell (Tatton)
I try to make it a rather seditious principle in the House to speak only about what I know about, which is why my speeches are so few and so short. I can claim to know something about videolinks, because I lived and worked by them for many years.
It was an honour to serve on the Standing Committee scrutinising the Bill. I must thank the Liberal Democrats who, I believe, were suffering from overstretch at the time and gave me one of their seats on the Committee. I found it an intersting experience, and in some ways rather dismaying.
I appreciate what was said in the House yesterday: we do, indeed, have a Government who listen—a Government who listen to themselves. I was struck by the quiescence of those on the Benches behind the Ministers who were speaking. I would have hoped that in a democracy there would be more of a dialogue both 1185 between Government members and between the Opposition and the Government. We could have achieved a lot more if we had been more collaborative.
There are issues that give rise to serious concern. We are not simply constructing a law that will conform to the convention. We are trying to protect the rights of serving men and women. As the Secretary of State knows, there have been some flagrant and disturbing cases in recent years. We have tried to address those.
On videolinks, we are dealing with custody hearings. We are speaking of the life of a serving man or woman—freedom or the denial of it for some time to come. What is important is not only the words spoken, but the demeanour. That is vital, both face to face and on the end of a videolink.
Demeanour and the perception of it can be affected not only by words, but by the lighting, the sound, the quality of the videolink, and the camera angle. I will not say that the camera lies, but it certainly shades the truth. Professionals know that if they want to give a good impression of someone, they shoot him from a certain angle, and if they want to undermine someone, they shoot him from another angle.
Serious issues are involved. As a sole independent, I lack the numbers necessary to move an amendment, but if the hon. Member for Salisbury (Mr. Key) chose to hold his ground on this, I should be delighted to vote with him.

§ Mr. Sayeed
It is a great pleasure to follow the hon. Member for Tatton (Mr. Bell), who made some important points arising from his own experience.
I shall deal with two points—first, the use of the negative procedure on statutory instruments. I disapprove of secondary legislation. One of the problems is that it is unamendable. As we get more practice in the use of video links, we will want to change the legislation in subtle ways. It is therefore important that when we come to make those changes, as we will have to do, subtle amendments can be made.
The Government may say that if it becomes clear during a debate that a statutory instrument is wrong, they will rewrite it and present it to the House again. However, since they have been power I know of no occasion on which they have reconsidered and amended a statutory instrument after a debate in Committee. They may say that they will do that, but I doubt it. A statutory instrument cannot be amended by negative procedure. That is a fundamental problem with the system, and with the Government's offer of presenting a statutory instrument through the negative procedure as a method of making changes in future.
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My second point is about video links. The hon. Member for Tatton made some good points. It is also important to consider the views of Kingston TLI, the specialist company which handles armed forces television. The company pointed out that even a land-based system costs £300,000 to £350,000. Rental and personnel costs must also be taken into account. However, leaving aside the costs, we must consider the practicalities of establishing a video link.
The Government talk about the way in which the Army would set up such a link, and I appreciate that the Army has more personnel. However, it is easier to establish a 1186 video link on land than at sea. It is easier because, for example, there tends to be a better supply of electricity and electronic silence is not such a problem.
Baroness Symons said: Video tele-conferencing is also used in Kosovo and was used regularly in Bosnia.—[Official Report, House of Lords,16 December 1999; Vol. 608, c. 353]. She said it was easy to use. However, it is important to know the views of the experts, in this case Kingston TLI. Its comments support what the hon. Member for Tatton said. According to the company, to produce broadcast quality results, data have to be transmitted at a rate of 8 megabits per second. Inmarsat is capable of only 128 kilobits per second, which will support only low quality conferencing. While it has the advantage of being bidirectional, it gives a poor and jerky image.
What does that mean? I shall take ships as an example because I know a little about them. In a ship on normal operations, much of the band width may be used. There will therefore not be much left for other, less immediately important matters. The ship may not have the requisite equipment, or if it does, it may be sending a video signal of a person who will be in danger of losing his liberty in a fashion that may prejudice his chances.
The Bill includes a 48-hour rule on custody. Ships run electronically silent for long periods to evade an enemy. The Minister may claim that there would be no video conferencing if the ship was in conflict and we could wait until it was in safer waters. The 48-hour rule means that that does not wash. It may be necessary to secure a person in the way in which a commanding officer was entitled to do before the introduction of the Bill. However, he will not be able to do that because, under the 48-hour rule, a person who can be contacted only by video link has to authorise the detention.
As I have said, ships run electronically silent for long periods. In such circumstances, it will not be possible for the ship to broadcast because it would thus reveal its position. A commanding officer will not necessarily be able to get permission to secure a person during the 48-hour period. I wonder whether the Minister has considered that.

§ Dr. Moonie
If the hon. Gentleman took the trouble to read the Committee proceedings, he would realise that we have already dealt with that point at great length.

§ Mr. Sayeed
I have looked at the Committee proceedings—

§ Dr. Moonie
I said "read".

§ Mr. Sayeed
I also read them. Having looked at and read them, I do not believe that the Minister has dealt with the point adequately. We need to ensure that, if the equipment is on board a ship and it needs to be used, the time limit is sufficient to allow those in the Royal Navy to use the provisions.
The Government's proposals on the use of statutory instruments and the rules for video links do not allow for subtle amendments to take account of experience. I am therefore happy to support the amendment.

§ Mr. Blunt
I do not want to detain the House, but I wish to register my support for the amendment because 1187 of the enormous difficulty of phrasing and creating the statutory instrument. The Parliamentary Secretary has now disappeared; she replied to the debate when the subject was considered in Committee. She said that she hoped that it would be drafted by May, but that it would be introduced as soon as possible. We were told that the limiting factor was the availability of parliamentary counsel. However, I believe that it is the sheer difficulty of producing the statutory instrument in a manner that will withstand legal challenge.
I look forward to the Minister's comments. I hope that he will be able to tell us when the statutory instrument will be introduced, even in draft. The Committee should have been able to examine it, but the Government failed to produce it. The least we can expect is that the affirmative rather than negative procedure will be u sed—[Interruption.]

§ Mr. Deputy Speaker
Order. I am sorry to interrupt the hon. Gentleman, but I ask whoever has the electronic device to silence it or leave the Chamber.

§ Mr. Blunt
I want to register my support for my hon. Friend. I perceive many difficulties with the measure; therefore the rules should be subject to affirmative rather than negative procedure.

§ Dr. Moonie
We covered video conferencing at great length in Committee and on Second Reading. Despite the ingenuity of tying the matter to the technical amendment that we are considering, I do not intend to spend much time covering it again.
Use of video links in operational and commercial circumstances is now an everyday occurrence. The Ministry of Defence regularly uses video conferencing to communicate with our forces and allies all over the world. We do not depend on commercial satellite for video links.
The hon. Member for Salisbury (Mr. Key) again used the misprint in Hansard on Second Reading. The correct figure is 128 kilobits per second, not 28. I must correct that or others will believe that I do not know what I am talking about; in this case, I do. I know a lot more than Opposition comments suggest that Conservative Members know.
The judge advocate general and his staff were involved in a trial of video conferencing equipment for custody hearings in February. They are satisfied that the equipment is suitable. The judge advocate general said: I am not satisfied that the equipment I have seen demonstrated is adequate for hearings to be conducted in a fair and safe manner. We are not discussing trial. We are improving the rights of people who can be put in custody without review by a judicial officer and the same standards as might apply in a trial do not apply here. As the judge advocate general has said, the quality available is perfectly adequate to allow a judicial officer to make a fair—

§ Sir Nicholas Lyell (North-East Bedfordshire)
I am grateful to the Minister for giving way, although I did not mean to stop him mid-sentence. I was not a member of the Committee, but I took an interest on Second Reading and have attempted to read significant portions of the Committee proceedings. Practicability comes to mind. 1188 In a battle or semi-battle situation, what would be the practicability of using video equipment? Has that been discussed with the judge advocate general? Can he summarise how he expects it to be used? Does the qualification "as soon as practicable", which one finds in various passages, provide a let-out or not?

§ Dr. Moonie
I can confirm that it does. That is why those words have been used. Again, we covered the matter at length in Committee. Clearly the right hon. and learned Gentleman has not had the advantage of reading those debates, but the point is to recognise that there are operational situations in which, with the best will in the world, we cannot always apply the conditions that we should like to. He is quite right: I should not have stopped mid-sentence because I have forgotten where I was and am unable to complete my remark.

§ Sir Nicholas Lyell
Of course the Minister knows exactly what happened in Committee. If he gives me a day and a Hansard column number to refer to I shall be most grateful.

§ Dr. Moonie
I am afraid that the right hon. and learned Gentleman's gratitude will have to wait, because I have no idea of the day on which we discussed this matter. However, I assure him that I gave the Committee reassurance on the flexibility that we intend to build in to cover the operational situations he has described.
To deal with the substance of the amendment, in Committee, my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department conveyed my regret that the rules to be made under the clause were not ready for publication. However, I undertook to have the instruments available in May and my officials are diligently working to that timetable. I understand hon. Members' desire to see the rules in draft. A great deal of detail will go into them and I accept that their content is vital to the efficient working of the system, but I do not believe that subjecting them to the affirmative procedure is the answer.
A key purpose of rules made under secondary legislation is flexibility. That flexibility is essential in this case to ensure that we are able to adapt the rules to reflect changes in circumstances, procedures and best practice. The amendment would mean that any, even minor, changes in our rules over the years ahead would have to be subject to further debate in both Houses. I would think a lot more of Conservative Members' opposition to the negative procedure if they had expressed it a bit more often when they were in power. I do not recall any of the Conservative Members sitting over there voicing such opposition at any time while I have been a Member of the House, other than in opposition. The negative procedure is convenient and well established in practice.

§ Mr. Quentin Davies (Grantham and Stamford)
I must correct the Minister. I frequently lobbied for reform of that procedure and shortly before the end of the previous Parliament put my name to a measure that proposed an initiative for such reform, although I cannot quote the date of the Hansard concerned. I agree that reform is needed 1189 urgently, but may I reverse the point? What are the new Labour Government doing to improve the farce of the House's treatment of secondary legislation?

§ Mr. Deputy Speaker
Order. I can excuse the Minister from answering that wider question.

§ Dr. Moonie
Thank you for your ruling, Mr. Deputy Speaker. Although I accept what the hon. Gentleman says, it is interesting that his disloyalty in government has been rewarded with a post in opposition. [Interruption.] I would very properly be ruled out of order if I mentioned the single currency.

§ Mr. Sayeed
The Minister's comment about reform was also directed at me. I assure him that if he goes back far enough—probably to 1986 or 1987—he will find that I was one of those who supported my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) when he said that he strongly deprecated all secondary legislation.

§ Dr. Moonie
I disagree completely. Secondary legislation is very useful, particularly when the negative procedure is involved, and can be dealt with reasonably quickly.
This matter has been examined by the Delegated Powers and Deregulation Committee of the House of Lords, which gave its usual careful consideration to the rule-making powers sought by the Bill, including those under the clause. Its report accepts the proposed use of the negative procedure and states that the Committee has considered carefully whether it is appropriate that a power wide enough to regulate the admissibility of evidence and the immunities of witnesses should not be subject to affirmative procedure. The rules will be part of a framework consisting of existing legislation and subordinate legislation made under it. The whole will have to be compatible with Convention rights under the Human Rights Act 1998. Against that background the Committee can accept that it is appropriate that the rules should be subject to negative procedure … Because of that, and for the other reasons that I have outlined, I am afraid that I cannot support the amendment.

§ Mr. Key
My goodness, is not Parliament a menace when it gets between the Executive and its clients? I am sorry that the Minister is being so scratchy, but his scratchiness makes the point that we have won the argument hands down, and I am grateful for the support of my hon. Friends. He failed to address the point about video links, both now and in Committee, and the Government have failed to make the case. We are discussing the affirmative procedure as a principle. It is no good banging on about what might or might not have happened under previous Governments—he is in charge now—and if he thinks that reform is a good idea, and if he thought that it was a good idea then, why does not he do something about it, as my hon. Friend the Member for Grantham and Stamford (Mr. Davies) suggests?
There is another important point here. The Minister quotes the judge advocate general and says that he is satisfied, but he does not happen to be a Member of the House of Commons who has to decide what is in the interests of justice for our armed forces. We have to take that decision and we are not satisfied. That is what the 1190 Minister has to realise. The matter is not a simple one of him stitching something up with some important part of the Ministry of Defence without consulting the House.
Having won the argument hands down and in view of the time pressure that we face with protected business to follow, it would not be responsible to take a quarter of an hour out of these brief proceedings to put the amendment to the vote, knowing that some 300 absent Members of the House will flood in to support the Government.

§ Mr. Blunt
The number of absent members are not 300 but about 400.

§ Mr. Key
My hon. Friend is right. It is significant that the other 400 are waiting outside, even though only six or seven Labour Members are present.
We had better put the Minister on probation and we shall be watching extremely carefully. No amendments have been made, which is most peculiar.

§ Sir Nicholas Lyell
We were focusing on the practicability of the use of video links and the delay that might be permitted in battlefield situation. My hon. Friend was present throughout in Committee. Was he satisfied with the Minister's answers? In a sentence can he tell us what he said about flexibility and practicability? What's my hon. Friend's opinion?.

§ Mr. Key
My right hon. and learned Friend is right, and I was wholly dissatisfied with the Minister's responses in Committee. He said that it was unlikely that such circumstances would arise in a battlefield situation and said the same on the issue of discipline. We were also told that, should they arise, the accused person would be withdrawn from the battlefield. He and the Government are on probation. We shall no doubt return to these matters, either when we consider the Armed Forces Bill or at a later stage. Bearing in mind all that and the moral victory that we have scored in the argument, I beg to ask leave to withdraw the amendment.