JUDICIAL OFFICERS

HC Deb 06 April 2000 vol 347 cc1173-8

Mr. Key

I beg to move amendment No. 2, in page 29, line 24, at end insert— or—

(c) they are a serving Officer in the Territorial Army or the Royal Auxiliary Air Force who also hold a current practising certificate, issued by the Bar Council, Law Society or Institute of Legal Executives, to practice as a Barrister, Solicitor or Fellow of the Institute of Legal Executives and who have at least two years post qualified experience'.

Mr. Deputy Speaker

With this, it will be convenient to discuss amendment No. 3, in page 29, line 37, at end insert— 'or—

(c) they are a serving Officer in the Royal Naval Reserve who also hold a current practising certificate, issued by The Bar Council, Law Society or Institute of Legal Executives, to practice as a Barrister, Solicitor or Fellow of the Institute of Legal Executives and who have at least two years post qualified experience'.

Mr. Key

The amendments would allow reservists and other members of the Territorial Army to hold the post of judicial officer, either while on exercise with their respective service or when serving as a full-time reservist. May I say how nice it is to welcome the hon. Members for Crawley (Laura Moffatt) and for Ilford, South (Mr. Gapes) who served on the Committee that considered the Bill? I look forward to listening to their contributions this afternoon.

The Bill has many practical difficulties, and these we have made clear to the Government, right through the Committee stage. Unfortunately, the Government seem determined to drive the Bill through without listening to the Committee or the House. We will, as Her Majesty's Loyal Opposition, continue to try and improve what is clearly a flawed measure. The least that we can do for the armed forces is to try and make this wretched Bill work.

The amendments would widen the pool of those qualified to serve as judicial officers. It is clear that there will be insufficient barristers within the armed forces to cope with the proposed changes. Not only will barristers have to continue to prosecute and defend cases, they will now have to exercise their role as judicial officers.

The Territorial Army already has a legal corps. However, the naval reserve does not. Furthermore, the Army and the Air Force recruit civilian lawyers to join their legal corps, but the Royal Navy recruits unqualified personnel from the supply and secretariat branch, and trains them as barristers. The Army and the Air Force can easily step up recruitment, and have done so, but, as legal training is a lengthy process, the Navy is not in the same position. It is therefore conceivable that some convictions may fail because the Royal Navy cannot put the accused before a judicial officer in time.

1.45 pm

The House will be unsurprised to be reminded that reserve forces provide essential back-up for the regular forces. The reserves contain some qualified lawyers, many of whom may practice criminal law, or even human rights law. They are likely to have a good knowledge of the special nature of service life, backed by expert legal knowledge, and they would make a fine addition to the legal services available to the armed forces.

Mr. James Gray (North Wiltshire)

My hon. Friend must be aware of the Inns of Court and City Yeomanry, which is particularly well qualified in this regard.

Mr. Key

My hon. Friend makes my point for me.

The Government savaged the Territorial Army last year, cutting numbers by 18,000 men. The then Secretary of State, Lord Robertson, said that by doing so, he aimed to make the TA more usable and relevant—a memorable phrase. As the former Secretary of State was well known for his sense of humour, people may have thought that he was joking. He was not. The Government have shown themselves to be no friend of the reserves, but have had no hesitation on calling on reserve forces when they need them, as they did last year in Kosovo.

Even after the huge cuts of 1999, the Government continue to salami-slice the budget of what is left of the Territorial Army. No one would deny that the reserves play a hugely important role. It would be an opportunity wasted if we denied appropriately qualified reservists the chance to play their part in the service disciplinary process. I ask the Minister to accept a sensible, logical amendment.

I hope that the Minister will not say that the matter can be dealt with in next year's Armed Forces Bill. My golly, that will be a Christmas tree of a Bill, given all we have heard in Committee about what will be added to it. A great deal is missing from the Armed Forces Discipline Bill. I hope that the Minister will break the habit of a lifetime by conceding that our proposal is sensible and accepting it.

Dr. Moonie

I assure the hon. Gentleman that I listened to everything that he said with great care. There was little else to do in Committee, unfortunately. Listening is better than falling asleep, if marginally so. I have promised to consider matters in future, but I certainly have not promised to include them in the quinquennial review Bill. Considering matters for inclusion is quite different from actually including them, but I will of course give points serious consideration where I have said that I will do so.

Amendments Nos. 2 and 3 would allow the judge advocate general or the chief naval judge advocate to appoint as judicial officers volunteer reserve officers who have specified practice certificates or qualifications with a minimum of two years post-qualification experience. I appreciate that the hon. Member for Salisbury (Mr. Key) intends to provide more flexibility in relation to those who may be appointed judicial officers, and that he is trying to be helpful. I fear, however, that it would be a flexibility too far. Two points are at issue: whether we want to use reserve officers as judicial officers, and the type of qualification and level of experience that we wish them to have. Clause 7 provides for the appointment as judicial officers of only qualified lawyers, including lawyers who are volunteer reserve officers. The amendments, however, would add legal executives to those eligible for appointment. For all their fine qualities and the breadth of their responsibilities in the civilian world, such individuals are not lawyers, and are not, in our view, qualified to serve in a judicial capacity. That assessment is based on the judgment that we made when we drafted the Bill, and is reflected in clause 7. By the same token we do not see a case for varying the qualification period for different categories of judicial officer. It would make nonsense of the legislation if we required lawyers to have at least five years' post-qualification experience before being appointed as judicial officers, but allowed lawyers and legal executives who are volunteer reserve officers to perform that function with considerably less experience.

The issue of length of experience was debated at great length in Committee. I stated then and must do so again that we believe that five years' experience demonstrates a reasonable level of familiarity with the law, so is the minimum period that should apply. I have given the matter serious consideration. I am sorry, but in this case I cannot accept the amendment.

Mr. Jonathan Sayeed (Mid-Bedfordshire)

I am particularly concerned with the Royal Navy and the Royal Naval Reserve. Is the Minister aware that in the London division of the RNR a large proportion of serving officers are qualified and well practised solicitors and barristers? I understand his point about those with lesser qualifications, but does it not make sense to make use of the excellent naval and legal experience of those people in the RNR?

Dr. Moonie

If such people are in the Royal Naval Reserve, we will use them. All we are specifying is that they must have five years' experience. For the points I have made that is not an unreasonable stipulation to make.

Mr. Menzies Campbell

Clearly, the role of the judicial officer is important, with considerable responsibilities to be discharged. Such responsibilities are best discharged by those who have some maturity and some direct experience of trial or court-martial procedure. For example, it is not possible to become a sheriff—a middle ranking judge—in Scotland with less than 10 years in practice, whether as an advocate—the Scottish equivalent to a barrister—or a solicitor. So it is right to set a minimum level of experience if people are to be invited to carry out extremely important responsibilities which bear on the rights and freedoms of individual citizens or, in this case, of individual members of the armed forces. Therefore, I have considerable sympathy with what the Minister said in relation to the five-year qualification period.

When the Minister responded to the hon. Member for Reigate (Mr. Blunt), however, he said that there were two questions: whether we wanted to use reserve officers and of the experience of those who might fall into that category. He answered the second question, but I did not understand him to answer the first: whether the purposes of the Bill could be served by the use of reserve officers. He came back to it obliquely at the end of his remarks. Perhaps he could make it clearer whether he is satisfied that the existing arrangements without the amendment allow for the utilisation of the very people who were mentioned a moment ago in an intervention as reserve officers in all three services with the requisite legal experience to take part in proceedings of the kind that we are considering and to fulfil the responsibilities of judicial officer. To cut out that group of people would be to waste a valuable resource which could be of great assistance in achieving the objectives of the Bill.

Mr. Gray

I agree entirely with the right hon. and learned Gentleman, particularly in regard to the Territorial Army. I wish to qualify his question to the Minister in one particular way. These people need not be officers. The Inns of Court and City Yeomanry and the Honourable Artillery Company have banisters of great qualifications who are of other ranks.

Mr. Campbell

The hon. Gentleman is right to pull me up on that matter. One of the curious features of the Territorial Army is that people serve in it as a private or corporal who outside occupy positions which, on the face of it, would be equivalent to rather higher ranks if their outside position were reflected in their rank in the TA. So although I am with the Minister on the question of experience, I am by no means convinced that he has dealt with the issue in so far as it relates to the availability of valuable resources in the shape of reserve officers qualified to fulfil the functions outlined in the Bill.

Mr. Blunt

I have listened to the arguments, and have some concerns both about the amendment proposed by my hon. Friend the Member for Salisbury (Mr. Key) and about the proposition advanced by the right hon. and learned Member for North-East Fife (Mr. Campbell).

Shortly, the Minister will correct the right hon. and learned Gentleman.

Dr. Moonie

indicated assent.

Mr. Blunt

The Minister will say that, if members of the Territorial Army meet the qualification of having been members of the Bar for five years, they would be suitable as judicial officers. That would meet my concern about the point made by the right hon. and learned Member for North-East Fife.

As I understand it, the amendment would mean that members of the TA and other reserve forces, who have some experience of service matters, would have to go over a lower hurdle in respect of the legal experience required to serve as judicial officers. My concern is that those TA officers would be undertaking, with less legal experience, a judicial duty that the Government believe to be necessary because of the Hood judgment at the European Court of Human Rights. That case led to these provisions in the Bill, because, under the European convention on human rights, commanding officers are not considered to be independent and thus not capable of taking decisions on custody and remand into custody. That is why the first part of the Bill was introduced.

I am concerned that, instead of the simple five-year tariff for lawyers to exercise the function of judicial officer that applies to members of the regular Army and the other regular forces—which I believe to be unnecessary—members of the TA would be in the peculiar position of only needing to have held a judicial qualification for two years in order to sit in judgment on members of the regular Army. We need to avoid that situation. It could create legitimate resentment among members of the regular forces, because someone with a TA commission, possibly with limited reserve experience, might be put in judgment over members of the regular forces without the legal tariff of five years core experience that the Government have decided is necessary.

As an ex-regular, I should be worried if a judicial officer, with only limited territorial or reserve experience and limited legal experience, sat in judgment over members of the regular Army, the Royal Navy and the Royal Air Force.

Mr. Sayeed

I understand the point my hon. Friend makes about two years and five years. However, is not it true that those in the reserve forces would be full-time lawyers? In the Navy, many of those who become legally qualified are only part-time lawyers. They come from the supply and secretariat branch and qualify as lawyers, but they do jobs other than legal ones in different postings. Although they may be time-qualified, their quantum of legal work is rather less.

Mr. Blunt

My hon. Friend is right. However, we are considering a point about lawyers who will sit in judgment on members of the regular forces. In my view, it is right for commanding officers and the chain of command to take decisions on custody and on remand into custody. There was no problem about that until that one case was brought under the European convention of human rights. If the armed forces were not subject to the convention, because, 49 years ago, we had had the wisdom and foresight to negotiate a reservation for them, we should not be having to introduce provisions about decisions on custody being made by someone so obviously independent as a lawyer of five years' standing rather than allowing the CO and the chain of command to make the decision in the first place. We are in this position, and the Government have yet seriously to examine the routes that would get us out of it. As we are clearly caught by the Hood judgment, this clause is regrettably necessary.

2 pm

My hon. Friend the Member for Mid-Bedfordshire (Mr. Sayeed) referred to officers in the Royal Navy; some are lawyers and some are not. If, in their capacity as lawyers, they detained sailors in custody on judicial hearings, they would be acting at least as serving regular officers of the Royal Navy. The problem with the amendment is that people with limited Territorial Army and legal experience could sit in judgment on issues of custody that used to be considered by commanding officers who were respected and who operated under a system that was respected. If that happened, it could cause resentment in the Army and the regular forces, so it should be avoided.

Mr. Key

I suspect that had we been talking about medical matters, the term "skill fade" would have been heard in the debate. What my hon. Friend the Member for Reigate (Mr. Blunt) said was important and it justifies the amendments. We are talking about people who practice law and soldiering and we have to consider what happens if there is crossover between the two roles.

I listened carefully to the Minister. In an almost throwaway line, he confirmed that the Government would use members of the Territorial Army if they were qualified in his terms. If I am wrong, perhaps he would like to clarify the matter.

Dr. Moonie

I will clarify the matter, even though I thought that I had made it perfectly clear, as I think the record will show.

Volunteer reserve officers who meet the qualifications in paragraphs (a) of the new sections will be eligible for appointment any way without need for modification to the Bill.

Mr. Key

That is exactly what I thought the Minister had said, and it gives us some satisfaction. We had hoped, however, that we could widen the pool of expertise by varying the qualifications necessary.

We shall have to return to the issue. We are all aware that we are being invited to stumble down a path and, no doubt, the Bill will have to be repaired and patched up. It is remarkable that not a single Government amendment has been made in Committee or on Report, and only a handful were made in the other place.

Mr. Blunt

A point has just occurred to me. The issue turns on the definition of independence in the European convention. Are the Territorial Army officers who are lawyers not as independent as those lawyers who are not Territorial Army officers? If regular Army officers who are lawyers assume the role of judicial officers, will they meet the test of independence? Has the Minister considered that point?

Mr. Key

I cannot speak for the Minister. However, I suspect, in terms of compliance with the European convention, he would say that regular and Territorial Army officers are all part of the chain of command and that that is the issue. That is my understanding.

I shall not detain the House any longer. We have been around the course on the amendments and I am sorry that the Minister has not conceded on them. It has been worth while probing on this issue, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.