HC Deb 06 April 2000 vol 347 cc1190-209
Mr. Key

I beg to move amendment No. 6, in page 32, line 10, at end insert— '(1A) The Defence Council may by regulations make provision designating those persons who, either before or after the accused has elected for trial by court-martial. may counsel him on that decision'. The purpose of the amendment is to ensure—[Interruption.] Oh, I wonder whether we should pause at this point in order to call back some Members who seem to have decided to leave the Chamber. No; we are back to our usual small team.

The purpose is to ensure that, either before or after the accused has made his or her decision to be tried by court martial, no person will be able to force the accused to change his or her mind, and opt to have the matter dealt with summarily.

The amendment underlines the problems that the Bill creates, rather than solves. The same theme runs throughout the Bill. By introducing a potentially cumbersome and unnecessary opportunity for people to opt for court martial at the beginning of proceedings, the Government will create tensions within units. It is easy to imagine how aggrieved the non-commissioned officers and the commanding officer of a unit would be should one of their subordinates opt for court martial for a minor offence. That would convey the message—whether true or otherwise—that the unit was not being run well, and that the men did not have confidence in their superiors. It would certainly not reflect well on the commanding officer: it would give the impression that he was not in control of his unit-hence our assertion that the Bill undermines the authority of commanding officers.

Dr. Norman A. Godman (Greenock and Inverclyde)

Speaking as a former barrack-room lawyer—

Mr. Sayeed

Former?

Dr. Godman

I shall not respond to that. I am asking a question.

Can the hon. Member for Salisbury (Mr. Key) give us an example or two of designated advisers? In the case of a private soldier, would the adviser be a regimental sergeant-major or, perhaps, a civilian?

Mr. Key

The hon. Gentleman, who I understand was a redcap, is aware of the issues. I promise him that I will come to his point, if he will hold his horses for a moment.

As always, Conservative Members have an eye on how things operate in the real world, rather than on the clean-cut, perfect fairytale land in which the Government seem to think our armed forces operate. We tabled our amendment with an eye on how forces discipline works in practice.

When the matter was considered in another place, my noble Friend Lord Attlee tabled an amendment similar to this one. As a serving member of the Territorial Army, he felt strongly that the new system allowing the accused to choose court martial for almost any offence was open to abuse by the accused's seniors. He feared that they might try to persuade the accused to opt for a summary trial on the grounds that it would be cheaper and quicker, and also that they might want to keep the matter "in house". The persuasion could take the form of superiors' making it clear that the accused's life could be very difficult in future, or suggesting indirectly that the accused's career prospects could be, shall we say, curtailed.

There was an extensive debate in the other place on 18 January, the report of which my hon. Friends will find in columns 1012-14 of Hansard. I shall not delay the House by quoting from it.

At present, there are no safeguards to prevent undue influence from being exerted on the accused. As the opportunities for courts martial increase, so does the potential for abuse of the system, but the Government seem to have done nothing to eliminate the possibility of such abuses. The Bill overlooks the realities of life in the services, just as it overlooks so many other things. Several times the Opposition have raised the spectre of "behind the barrack block" discipline. It happens now, it is wrong, and there is no doubt that the Bill will only increase the likelihood of its happening. We hope that the amendment will introduce additional protection, and that the Minister will accept this simple but important measure.

Let me respond to the hon. Member for Greenock and Inverclyde (Dr. Godman) by saying that we understand that the matter should not be in the hands of members of the chain of command. That would not comply with the European convention on human rights. We were told—indeed, my noble Friend was told in another place—that there would be access to lawyers independent of the chain of command. However, that in turn raises the issue of who the lawyers are to be.

Members of the Army legal service, for example, are not perceived by the forces to be truly independent. They are independent legally, but they are part of the chain of command. We must therefore fall back on independent civilian lawyers, but that is a problem, not least because the Ministry of Defence is very bad at paying them. Before Christmas, the Lord Chancellor's Department changed the rules, which inhibits the proper working of the process. There is also the practical problem of how to get civilian lawyers to members of the forces in such circumstances. The situation is fraught with difficulty. That is why we are asking the Government for an assurance about how the process can be made to work.

Dr. Godman

I will be brief because I hope to speak in the next debate, but I want to assure my hon. Friend the Minister that, if the amendment is put to a vote, I shall not support it.

I have just returned from Kosovo, where I spoke to officers and other soldiers. I know that the hon. Member for Salisbury (Mr. Key) has also been in Pristina and elsewhere. I think that those soldiers are doing a remarkably fine job, along with our RUC officers; but I am concerned about, say, the young soldier who is apprehended for some misdemeanour, and who might feel entirely alone and defenceless in a guardroom, surrounded by regimental police officers who are not always as sympathetic as military police officers. Will the Minister assure me that young soldiers and others who are caught up in such circumstances will have access to advice?

Mr. Menzies Campbell

I confess to some surprise at the notion of "Be a carer: join the redcaps". Such a slogan would not be immediately recognised by many who have served in the armed forces as a reflection of their own experience.

There is a problem here, although I am not sure that the amendment is the way to deal with it. Someone who had opted for court martial could easily find himself or herself the subject of pressure. If the other provisions of Army discipline provided that such pressure constituted an offence that could itself be subject to disciplinary proceedings, that would afford a measure of protection. Perhaps the Minister will be able to illuminate the matter by reference to some such provision elsewhere, but I think that the hon. Member for Salisbury (Mr. Key) has drawn attention to a possible problem, which might cause certain individuals not only embarrassment, but something rather worse.

I shall be interested to hear what solution the Minister has, if—in accordance with what might be described as the immaculate conception of the legislation so far—he refuses yet again to accept an amendment.

Dr. Moonie

It is difficult to discern the underlying purpose of the amendment. I accept that its intention is to provide additional safeguards, rather than imposing restrictions on an individual's right to seek advice—which it could equally be read as doing.

The point relating to the offence is legitimate, although we did not consider it when drafting the Bill. It would be dealt with more appropriately by the Committee that will consider the quinquennial review next year, as by that time we shall have had a chance to see how the new law is working in practice.

Mr. Campbell

I think the Minister is right about the potential effect of the amendment. It could be interpreted as prescribing a very narrow range of people from whom a person who opts for court martial would be entitled to seek advice. That would clearly be contrary to the intention of the amendment. There is a possible problem, but the amendment may not be the best way to deal with it.

Dr. Moonie

I agree. If the list included the sergeant-major and no one else, we would all have a bit of difficulty in accepting that.

If all the regulations purported to do was provide a list of persons who might be able to advise the accused, the amendment is surely unnecessary. An informative list of suitable advisers can be made readily available at any time without the need for legislation. All three service discipline Acts contain provisions allowing for rules to be made governing, inter alia, the withdrawal of an election for trial by court martial.

3 pm

The current system provides that an accused charged with an offence will be given a pamphlet outlining his rights. He will also be afforded the services of an accused's adviser of his choice, who is normally an officer or warrant officer. Thus, from the outset, the accused will be made fully familiar with his rights under the disciplinary process.

Under the present summary discipline system in the Army and Air Force, once the commanding officer finds that the charge has been proved, an accused may have up to 24 hours to decide whether to elect for trial by court martial, in accordance with provisions in Queen's Regulations. In the Royal Navy, before the evidence is heard by the commanding officer, the individual is given at least 24 hours to consider whether he wishes to exercise the option for trial by court martial, in cases where he has the right to elect.

I admire the intention behind the amendment but, having read and reflected on it, and in view of the other provisions that we have made, I think that it is unnecessary.

Mr. Key

The quinquennial Bill has at last appeared—the Christmas tree has been decked—so we await with interest the results of the assessment of how the new law is working in practice, as the Minister put it. I am glad that he has accepted that the intention was wholly constructive: to ensure that no undue pressure is put on people who might be persuaded to change their minds after their initial choice. Given that assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Key

I beg to move amendment No. 1, in page 34, line 1, leave out clause 12.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following amendments: No. 7, in clause 20, page 41, line 30, leave out— 'no more severe than that originally awarded' and insert— 'fair and just in all the circumstances'. No. 8, in page 41, line 41, leave out— 'no more severe than that originally awarded' and insert— 'fair and just in all the circumstances'. No. 9, in page 42, line 5, leave out—1 'no more severe than that originally awarded' and insert— 'fair and just in all the circumstances'. No. 10, in page 42, line 34, leave out— 'no more severe than that originally awarded' and insert— 'fair and just in all the circumstances'. No. 11, in page 42, line 43, leave out— 'no more severe than that originally awarded' and insert— 'fair and just in all the circumstances'. No. 12, in page 43, line 5, leave out— 'no more severe than that originally awarded' and insert— 'fair and just in all the circumstances'.

Mr. Key

During the Bill's passage through both Houses, the Opposition have maintained that it undermines the authority of commanding officers. Clause 12, whereby the maximum punishment that the court martial can award is limited to the maximum that the CO could have awarded if he had dealt with the case summarily, is damaging and clearly undermines the authority of officers and the discipline system in the forces.

The measure is doubly flawed—the provision is unnecessary to comply with the European convention on human rights. Lord Mayhew of Twysden made the position clear on Second Reading in the other place. He asked whether clause 12 goes quite beyond and against the Police and Criminal Evidence Act 1984. Crown Courts can of course impose higher sentences than magistrates. That is not something required by the convention on human rights and is itself likely to encourage elections for trial by court martial rather than by commanding officers—which surely must be deleterious.—[Official Report, House of Lords, 29 November 1999; Vol. 607, c. 680-1.] The measure shows how the Government have got it wrong. They are not just gold plating and bending over backwards to comply with the convention, but going way beyond what is needed.

The Government have argued that, because they see the summary justice system as non-compliant in that respect, we cannot use a comparison between a magistrates court and the Crown court in the civilian field, but an accused has an opportunity to be tried in a compliant court—that is to say, a court martial—which has a range of punishments available to it that is laid down in statute to match the seriousness of the charges being made.

The fact that an accused has an opportunity to have those charges heard in front of a commanding officer, but in a non-compliant system, whose powers of punishment are more circumscribed, is of benefit merely to the accused. He is able to choose to have a convention-compliant trial if he so wishes. As, in any event, he is being given the facility to appeal the commanding officer's decision, that is further proof against challenge on that part of the Bill under the convention, so our proposal to strike out clause 12 restores the position of common sense and adds consistency with the civil sector.

Under the provisions, when the accused can receive no greater punishment than the commanding officer can give, there is no disincentive to elect for court martial. A service man can insist on election for court martial for even the most minor offence. There is a danger that such cases may never be dealt with due to the backlog of more serious cases.

Both the Select Committee on Defence and several peers in another place were concerned that the new provisions might mean that, without the risk of incurring a more severe punishment, more personnel might elect for trial by court martial. The Select Committee was told that, on the basis of surveys that the Army had conducted of Army offenders who were currently guests at Colchester prison, as well as officers and regimental sergeant majors, it was likely that the possibility of a more severe punishment would remain a disincentive. The majority of personnel believed that it remained quite high risk to go straight to a court-martial. However, the Bill will mean that the possibility of a more severe punishment is removed. Therefore, the disincentive is being removed.

The Select Committee's witnesses believed that summary justice, administered by the commanding officer, would remain the preferred option of most offenders, but, in the case of personal animosity between a CO and an accused service man, the accused could elect for court martial to spite his CO and superiors.

As has been made clear before, the Bill is an invitation to the barrack-room lawyer. Yet again, we see that too much in the Bill is based on a perfect world model, with accused service men being of good and reasonable character and team players, but it is obvious that the Bill will in many cases apply to service men who have done wrong. For a host of reasons, they may not wish to co-operate or acquiesce. They may feel that there are good reasons for them to play the system. The Bill gives them plenty of opportunities to do so.

I know that only a tiny minority of people are subject to discipline anyway in the forces. Nevertheless, they can be a significant factor, making life difficult for everyone else.

The Select Committee shared our concern that the more protracted process of courts martial might lead to delays in justice being done and being seen to be done quickly, and that aggrieved colleagues of an accused person might feel tempted to take matters into their own hands.

For those reasons, we believe that the clause should be removed. It will undermine the status and authority of the commanding officer. It runs the real risk of abuse by the rare dissatisfied and disaffected elements in the armed services, and could lead to unwelcome delays in the administration of justice.

In Committee, the Minister recognised that the Government were bending over backwards to comply with the convention. He said that he wanted it to be watertight. That is fair enough, but the Government have not made a sound case for the inclusion of the clause.

As my hon. Friend the Member for Reigate (Mr. Blunt) pointed out, even if a British court made a judgment that the Government had erred against the ECHR, all that would be needed would be a defence counsel instruction to courts martial that they should not impose a greater sentence than that available to the commanding officer.

Therefore, the foundations of the clause lie on uncertain ground. I invite the Minister to make a firm case for the clause. If he cannot, we shall have to see what to do about it, but it is a sensible suggestion. I look forward to the Minister saying why clause 12 should stand part of the Bill.

Sir Nicholas Lyell

I rise to support what my hon. Friend the Member for Salisbury (Mr. Key) has said. It seems that the Government are driven by their interpretation of the European convention on human rights, but, from what he has said, it is not clear that the convention demands the clause. My impression is that it does not demand it and that the matter could be dealt with perfectly sensibly in the way that he has indicated.

The clause seems to have significant disadvantages, which my hon. Friend has set out well. To say that someone can demand to go to a higher court, or to a more substantial court—a superior court—where, normally, higher penalties would prevail, but that those higher penalties would not prevail should that person exercise that right, seems thoroughly illogical and almost entirely inconsistent with our magistrates court-Crown court parallel, which one would have expected to be followed.

I consequently support what my hon. Friend has said. I shall listen with great care to the Minister's reply.

Mr. Viggers

I beg to move amendments Nos. 7 to 12 inclusive, which stand in my name.

Mr. Deputy Speaker

Order. There is no need for the hon. Gentleman to move the amendments. They have effectively been moved with the lead amendment; he just speaks to them.

Mr. Viggers

I am grateful to you, Mr. Deputy Speaker. I was anxious to point out that the amendments in my name have a similar purpose to that of amendment No. 1

The amendments would ensure that the summary appeals court specifically has a power to impose a sentence that is fair and just in all the circumstances, rather than, as the Bill currently provides, a sentence that is no more severe than that originally awarded. I think that that is an important point. In November 1999, the Government estimated that of the approximately 7,000 cases heard annually by commanding officers, there are about 850 to 900 appeals—although they have increased that guesstimate to about 1,500. The number of appeals will of course have a bearing on the number of service personnel and lawyers employed to deal with them. If the Government's estimates are correct, the system costs approximately £9 million annually. However, if the number of appeals should increase, the system's costs will increase accordingly.

In Committee, the Minister was very fair in stating clearly that the civilian court system, on appeal, provides an opportunity for the senior court to impose a heavier sentence than that imposed by the junior court or court of first instance.

Subsequently, the Minister tried to explain to us why he thought that, to be compliant with the European convention on human rights, it is necessary that the military system should contain three elements, the first of which is that the accused must be offered an alternative of trial by court martial. The second is that the court martial should not be able to impose a greater penalty than that which the commanding officer could have imposed initially. The third is that, on appeal, the summary appeal court should not impose a sentence greater than that imposed by the commanding officer.

I am seriously concerned that, if the appeal court cannot impose a sentence greater than that imposed by the commanding officer—if there is no right for the appeal court to increase a sentence—the number of appeals will be very substantially greater than that currently anticipated by the Government. What has an accused to lose if he discovers that his sentence cannot be increased on appeal?

It seems to be entirely sensible that, in this matter, the military courts should follow the same system used by the civilian courts. I defy the Minister to explain to us clearly where article 6 of the convention on human rights provides that it is not possible to allow an appeal court to impose a higher sentence. For those reasons, I support amendment No. 1.

Dr. Moonie

I tell the hon. Member for Gosport (Mr. Viggers) that we are advised that the right of appeal will render us compatible with the convention only if the accused is not in jeopardy of a more severe sentence on appeal.

As much as I should like to satisfy the request of the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) for clarity in the law, I regret that that is not something that is at my disposal. If the law were a bit more clear generally, we would not need so many lawyers to explain it.

Sir Nicholas Lyell

Will the Minister give way?

Dr. Moonie

No, I do not intend to give way as there is no time. I am taking up time that we could spend on Third Reading.

Sir Nicholas Lyell

It is on this point.

Dr. Moonie

All right, I will give way as I referred to the right hon. and learned Gentleman.

Sir Nicholas Lyell

I am grateful. I think that the Minister will appreciate that we are considering two different issues. The issue of whether on appeal from the commanding officer a sentence could be increased is one thing, and a rule that it should not be increased is fully understandable and may well be consistent with the convention. However, that is a quite different issue from that of whether, when a court martial is requested or demanded in the first instance, the sentence should still be only that which a commanding officer could impose. It really is important that the Minister should tell the House his advice on that point.

Dr. Moonie

I shall be as clear and as brief as I can. My advice is that if the court to which a person elects his proceedings to be transferred is to be compliant, it must have no greater penalty than that of the court from which he elects to withdraw. That is the reason.

Sir Nicholas Lyell

Will the Minister give way?

Dr. Moonie

No, I cannot give way again.

Sir Nicholas Lyell

I ask the Minister to give way. It is very important.

Dr. Moonie

No; it is not important enough for me. I have given way once and that is quite enough. I am guided by convention, and I think that the right hon. and learned Gentleman should recognise that.

The change proposed in clause 12 is to ensure that an accused is not disadvantaged by electing for court martial trial. The rationale for that is to ensure that no one is dissuaded from exercising from the outset the right to be heard by a European court of human rights-compliant court solely because he or she is at risk of a more severe penalty. That is a fundamental point in the advice that we have received.

Article 6 of the convention provides the right to a fair trial, which, in convention terms, is not provided by a summary hearing. A summary hearing, for example, is not heard in public, and the defendant is not entitled to legal representation. Nevertheless, an accused may choose to accept such a hearing and decide to be dealt with summarily—as we believe that most accused still will, despite the Bill's provisions. If the accused does wish to exercise the right to a fair trial, it is wrong that, in doing so, he should run the risk of a greater penalty. Capping the sentencing power available to the court martial is the only possible way of securing article 6 rights for the individual.

I am sorry, but I cannot accept amendment No. 1.

3.15 pm
Mr. Key

Undoubtedly the Minister's words will be heeded in interpreting the law when, in future, matters are considered by the courts—that is how these things work now. However, I regret that he has decided that he must fall back on the legal advice that he has been given without giving way to my right hon. and learned and distinguished Friend the Member for North-East Bedfordshire (Sir N. Lyell), who has shed such light on dark corners of the law over so many years in the House. However, that is the position that the Minister has adopted—he is clearly in a take it or leave it mood today.

As I said, we have to make a judgment on the matter and decide whether to press the amendment to a Division—although my right hon. and learned Friend says that he thinks that the current position is thoroughly illogical and inconsistent, and I entirely agree with him in that analysis; my hon. Friend the Member for Gosport (Mr. Viggers) has made a powerful case in speaking to his amendments; and the House has not been very well served in this debate. In view of the time, and the protected business that follows this debate, I must beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read.

3.16 pm
The Minister for the Armed Forces (Mr. John Spellar)

I beg to move, That the Bill be now read the Third time.

As I am mindful that a number of hon. Members wish to speak in our limited time, I shall be brief. The Bill has a simple purpose: to ensure that, in two key spheres—summary discipline and pre-trial custody—our procedures are compatible with the European convention on human rights. That is not a casual concern, but one based on court rulings and subsequent legal advice.

The Bill deals with that concern. We believe that it safeguards our procedures from the likelihood of successful challenge, although, as we have acknowledged, it is impossible for any Government to provide an absolute guarantee that procedures may not fall foul of a court ruling at some stage in the future. However, we believe that the Bill does what is necessary to preserve critical spheres of the system of discipline, and that it does so in a manner that is proportionate to the convention's requirements.

The Government are fully aware of the imperatives of discipline and of the distinctive features of service life—although the Opposition may seek to give the impression that they have a monopoly on understanding those matters. We are not prepared to trifle with service discipline, and the Bill demonstrates that fact. The Bill also demonstrates what we have had to do because of court rulings and subsequent legal advice. It is difficult to imagine that any Government exercising those proper responsibilities would or could have acted otherwise.

The Bill preserves the authority of the system of discipline in the armed forces. In doing so, it achieves the Government's and the services' objectives. That is a tribute to the excellent work of our Bill team and legal advisers. I hope that, even at this late stage, the Bill might command the support of the whole House. I commend it on that basis.

Sir Nicholas Lyell

Will the Minister give way?

Mr. Deputy Speaker

Order. I think that the Minister has completed his speech.

3.18 pm
Mr. Key

It was revealing, last week, to see the newspapers reporting the warning given by the Home Secretary for public bodies not to "panic" over introduction of new laws guaranteeing human rights. When one hears the phrase "don't panic" in the context of the armed forces, one is reminded of the catch phrase of the dithering Corporal Jones, in "Dad's Army". In almost every episode, he would cry, "Don't panic, Captain Mainwaring!"

Perhaps we could liken Defence Ministers to Corporal Jones, who was by trade a butcher, as they have certainly made enough choice cuts to the armed forces. Like Corporal Jones, they also seem to have been running around in a panic, by introducing this flawed and unnecessary Bill without thinking of its consequences.

In a report, on 30 March 1999, The Daily Telegraph quoted various people, including a member of the human rights task force, whom it said had been combing through the whole range of public policy to identify where problems were likely to occur. One member of the task force was quoted as saying: It's a litigant's charter. The lawyers will make a fortune. What's new? The story continued: Ministers and officials from each Department have been summoned by the Task Force led by Mike O'Brien, the Home Office Minister, to assess their readiness for the legislation. Has the Ministry of Defence been summoned before the task force? Was it before or after the Bill was drafted?

Mr. Spellar

No.

Mr. Key

The Ministry of Defence has been spared. How very interesting.

One of the characteristics of our debates has been the Government's steadfast reluctance to give any indication of the legal advice that they have received. I suspect that we have witnessed another shameful episode of the Government saying one thing and doing another. They have said that the Bill is necessary to protect the authority of commanding officers, but they have been kowtowing to the Home Office on human rights.

It has been a strange Bill to follow through the House. There has been a curious lack of Government amendments. The Government like to say that that is because of the quality of their drafting, but, with no disrespect to the Government's lawyers, I suspect that it is because they wanted to rush the Bill through in the shortest possible time. The 2 October deadline is fast approaching and all the stops must be pulled out.

Ministers have given commitments in both Houses to come up with a single Act to amalgamate the three service discipline Acts. That is a serious commitment, in view of the chequered history of the issue. Successive Governments have been seeking to achieve such amalgamation since 1991. There is no evidence that the Law Commission is in a position to provide parliamentary draftsmen to help in the work. Recent parliamentary questions have confirmed that. Despite the expressed good intentions of Ministers, there is no evidence that their aim can be achieved in a reasonable time scale. The latest ministerial estimate was that it would not be achieved in the next quinquennial Act, due next year, but in the one after. Give or take 10 years is a fairly safe time scale—after all, we have been trying for the past 10 years—but it is not good enough. We shall seek to return to that issue.

In most cases during the passage of the Bill, Ministers have just ignored what we have said. The Opposition are used to making arguments that are then voted down by the Government. The Government are often rightly accused of high-handedness and arrogance. Ministers have not been able to justify their conclusions on the Bill and have gone into autopilot mode, parroting the briefing material.

I am sorry that the Under-Secretary has had to leave the Chamber, although I entirely understand why. I would prefer him to be sitting in front of me as I quote his words from Standing Committee, but I must draw the House's attention to an exchange on 2 March. My hon. Friend the Member for Reigate (Mr. Blunt) had asked a question and been told that the Minister would respond later. My hon. Friend said: That is a trifle unsatisfactory. We have to decide now whether clause 2 should stand part of the Bill. My hon. Friend then asked whether the Committee could adjourn to allow the Under-Secretary to take advice. The Chairman rightly said: It is a matter for the Under-Secretary how he chooses to respond and a matter for Committee how they vote. The Minister then said: Indeed it is, Mr. Malins. As my reasonable offer has been rejected, I shall not bother to enlighten the Committee at a later stage. The Bill is as it stands and I shall support it from start to finish. My hon. Friend then rose to intervene, but the Under-Secretary carried on: The hon. Gentleman will resume his seat or rise on a point of order. I am under no obligation to explain anything other than that which I choose to explain. The Bill is as it stands.—[Official Report, Standing Committee D, 2 March 2000; c. 75.] I greatly regret that exchange. There are many other examples. In the Select Committee on Defence, my hon. Friend asked the Minister for the Armed Forces: Can you guarantee that…the new system of military justice that it brings in would be proof against ECHR judgments? The Minister replied: I could no more guarantee that than the Member for Mid-Sussex could have guaranteed it when it was introduced in the 1996 legislation. That is fair enough, but we have been told time and again in Standing Committee that the Bill would gold plate against the ECHR. We do not know where this unsatisfactory Bill will lead us.

In the end, it is down to the forces. The Government have tried to make military law ECHR-compliant. I was delighted earlier this week when the Chief of the General Staff launched his excellent document, "The Values and Standards of the British Army". It was many years in the making. I congratulate him and all the staff at the adjutant-general's department. I draw the attention of the House to two sections of the document. The section on the core values of the Army, in paragraph 11 on page 7, says: Soldiers volunteering for the British Army accept that, by putting the needs of the Service before their own, they will forgo some of the rights enjoyed by those outside the Armed Forces. But in return they can at all times expect fair treatment, to be valued and respected as an individual, and to be rewarded by reasonable terms and conditions of service. Paragraph 15 says: Because discipline is so vital to success on operations, commanders must be able to enforce it when necessary. That requires clearly understood rules and a military legal system which can deal with offences such as absence, desertion or insubordination which are not found in civil law. And if it is to work in war, such a system must be in place in peace. for it cannot be turned on and off at will. Discipline must therefore be rigorously but fairly upheld by all those in positions of authority, and self-discipline must be deeply rooted. No doubt the Bill will reach the statute book shortly, in spite of all our argument. We feel that it will undermine the system on which British military success has depended for generations. We are mindful of the fact that, in the end, discipline is self-discipline. It is in the hands of commanding officers and of every member of Her Majesty's forces in seeking to live up to the ethos and standards of British military life, which have served this nation so well down the ages.

3.26 pm
Mr. Mike Gapes (Ilford, South)

I speak as a member of the Select Committee on Defence and of the Standing Committee that considered the Bill. Some of those who have contributed today have forgotten the basis on which the Bill was introduced. It is necessary for two reasons: to comply with the European convention on human rights and because the legislation introduced by the Conservatives in 1996 was clearly inadequate and, following the Hood case, was going to lead to problems and legal judgments against the Government. We have heard many complaints from the Conservatives today, but they have to recognise that their 1996 legislation is inadequate and has to be replaced.

The Select Committee drew attention to several issues, pointing out that the Committee's 1996 recommendations for a consolidated Act for the three services had not been acted on. The report says: We regard the consolidation of Service law as an urgent matter and recommend that the MoD address this matter with more urgency than has been the case hitherto. As a member of the Select Committee, I want to place on record the important need for the issue to be taken forward. That argument should be supported on both sides of the House. If consolidation is not proceeded with, the Select Committee will have to come back to the issue.

I congratulate the Government on submitting the Bill to Select Committee scrutiny before its consideration in Standing Committee. The Select Committee concluded its brief report by saying: We hope that on future occasions the MoD will see the benefits of introducing legislation in draft form so that we can take up the opportunity to comment on proposals before they are formally introduced into Parliament as Bills. That is an important step forward that should apply to all Government Departments. Pre-legislative scrutiny is important to ensure that we get legislation right. The fact that we were able to consider the Bill in a limited way before it went through the House was a step forward. It would help the modernisation of the House and give us more effective government if Select Committees conducted pre-legislative scrutiny of all legislation.

3.30 pm
Mr. Menzies Campbell

A theme that has run through our proceedings has been that the Bill is a legal necessity that has been brought upon by the adoption in domestic law of the European convention on human rights. I shall put the matter rather differently and say that it is not simply a matter of legal necessity; it is a matter of desirability in a democratic society whose armed forces cannot be immune from the development of the rights of citizens, and in particular of those rights as they are now codified in the convention. It seems, therefore, that it could be expected that all right hon. and hon. Members, on both sides of the House, would wish to subscribe to the objectives that are set out in the Bill. It appears, from what has been said by the hon. Member for Salisbury (Mr. Key), the Opposition spokesman, that the House will not divide on Third Reading. In a sense, that is matter for some congratulation.

Mr. Key

indicated dissent.

Mr. Campbell

If the Opposition are proposing to divide the House, that is a matter of considerable regret.

I shall make three points on the justification for the Bill. First, in the post-cold war world, the armed forces have an evolving role. The structure of discipline within the armed services should reflect that. Secondly, the role of our volunteer and professional services is to defend democratic values. That is why they are deployed in difficult and dangerous places throughout the world as we conduct these proceedings. It is correct that we should ensure that the system of discipline that directs these deployments is one, so far as is practicable and compatible with the functions of the armed services, that represents the very democratic values that they are doing their best to defend.

Thirdly, the armed services should reflect what is best in our society. We should expect them to reflect the values that we regard as being important and fundamental. I do not accept the argument that the armed services are so special and so different that they should be dealt with in a way that ignores the rights conferred upon citizens by the European convention. That approach turns the armed services into a ghetto in one respect, and perhaps also disconnects them from the civilian society of which, under our system, they form part, but to which they are subordinate because responsibility for the direction of our military rests in this place, particularly on the Treasury Bench.

The Bill has desirable as well as necessary objectives. It affords a fresh look at a new system of discipline for the armed services. It reflects the values which all citizens, whether in uniform or not, are entitled to expect. If its Third Reading is pushed to a Division, that is why I shall be in the Government Lobby.

3.32 pm
Sir Nicholas Lyell

I listened carefully to the right hon. and learned Member for North-East Fife (Mr. Campbell). I shall explain why I disagree in part with what he says, though I agree in part. Yes, there are desirable aspects of the Bill, and it is right that our law should seek to comply with the European convention on human rights. However, there are three points which the Government would do well to listen to more carefully than sadly they appear to have done during the Bill's passage.

I was deeply disappointed with the responses of the Minister. I am sorry that he is not in the Chamber because I do not like to criticise Members in their absence. However, I must make the point, and I shall make it good in relation to the three matters that I wish to take up.

I think it came out in our debate on clause 12 that we shall put in place a system of summary justice within the armed forces that can be sustained only on the basis that it is voluntary. We have all been brought up to believe—my hon. Friend the Member for Salisbury (Mr. Key), speaking from the Opposition Front Bench, made the point clearly when reading from the relevant document that I believe was put out by the armed forces—that when an individual joins the armed forces he agrees to some extent, and I would not wish to push it too far, to forgo some of his civilian rights for the purposes of good order and military discipline. One of the things that he accepts is that he will be subject to the discipline of his commanding officer in relation to comparatively minor offences.

It is clear from the structure of the Bill that the individual will have to be asked whenever he is brought up on colonel's orders whether he will accept that summary discipline. The colonel—the Army—cannot say, "No, this is simply a matter of colonel's orders. You can appeal if you dislike the result, but in the first place you must go before the colonel." The individual has, in effect, to put aside his right to court martial. He has a right to go to court martial even for an offence that results in 24 hours in the guard room. That seems silly. That is why I sought to intervene on the Under-Secretary of State to get him to explain the situation more fully.

I think that there was a misunderstanding—I would not like to call it an abuse, but I think that that was the result—of our parliamentary procedures on the Minister's part. If a Bill has been sensibly discussed over six or seven days in Committee and then comes before the House on Report, when serious and sensible questions are asked, and the Minister does not attempt to answer them, he is falling short of what the House is entitled to expect.

Summary discipline has now become voluntary under the Bill. Of course, there will be a great deal of behind-the-scenes pressure to accept that voluntary discipline, but it would be much better if it were up front. I have great respect for Government lawyers—I was responsible for them for many years—but I have a great deal of difficulty in accepting that the European convention requires summary discipline to be voluntary. I shall be grateful if the Minister, or his officials, will write to draw my attention to any learned articles that support that point of view so we may reflect further upon it.

I move on to quasi-judicial confirmation of custody. If something untoward happens in an active service situation—I use those words advisedly—the individual can still be held in custody for only 48 hours, or a maximum of 96 with the confirmation of a judicial officer. After charge, he can be held in custody only if that is confirmed by a judicial officer.

I think that the House is perfectly happy with that parallel system in circumstances other than active service, and it is entirely practicable to achieve it. However, it seems nonsensical on active service. The Government have not made clear the extent to which there is flexibility in, to use the words that appear frequently in the Bill, as soon as is reasonably practicable. Much has been made of the use of video links and the impracticability of using them on the battlefield, which would seem to need little debate. My hon. Friend the Member for Mid-Bedfordshire (Mr. Sayeed) made the point that ships at sea maintain electronic silence. It is absurd that they should be breaking that silence to obtain approval for continued custody in the rare but, if it occurs, probably important circumstances where custody has to be imposed.

That brings me back to the point that I made on Second Reading in the context of the European convention. It should be remembered that the convention allows derogation from its terms only in circumstances that amount to war or other public emergency threatening the safety of the nation. All the former Yugoslavia conflicts, including Bosnia and Kosovo, demonstrate that many if not most of modern-day conflicts do not fall into the category of war. Happily, they do not fall either into the category of emergencies that put the safety of the nation at risk, but they do put at risk the safety of members of the armed forces. Effective maintenance of discipline is therefore essential.

I hope that the Government, through our ambassadors and others, will see whether the European convention, which was incorporated into our law in 1999, can be brought up to date so that it is practical for the 21st century. At present it is not very practical. That is not entirely the Government's fault, as it was difficult to strike a balance on the decision to incorporate, but it is one of the significant disadvantages of that decision.

The Bill will pass to the statute book in due course, but I hope that the Government will take account of the points that I have raised. If my hon. Friends on the Opposition Front Bench are minded to divide the House, those matters are sufficiently important to justify their decision, and I shall be quite content to support that decision in the Lobbies.

3.41 pm
Mr. Martin Bell

I shall be even briefer than usual. Former service chiefs have expressed doubt about the Bill, although that is not shared by present service chiefs. I do not know how reluctantly or enthusiastically they endorse the Bill, but nothing matters except the rights of our service men and women.

I am not convinced that those rights have been strengthened by the Bill. One amendment would have strengthened them by making legal aid available at the point of arrest rather than at the point of charge. Many soldiers are treated hideously, and the present Minister for the Armed Forces is the third to have to deal with the Stankovich case. In all my years as a soldier, as a journalist working alongside the Army and now as a Member of Parliament, I have never come across another case in which injustice was so gross or blatant—and the man involved was not just a British soldier, but a British hero.

I plead with the House: we must introduce a measure, perhaps in the next Bill on this subject, to protect our national heroes and not penalise them.

3.42 pm
Mr. Blunt

It is a bitter irony that the House is about to approve a Bill, driven by the European convention on human rights, that will weaken the system of justice for our soldiers, sailors and airmen.

The first part of the Bill deals with custody rules. It is the one part of the Bill that is driven by a judgment from the European Court of Human Rights. That judgment involved a man called Hood, the only soldier that I know of to take his case to the European Court. He was complaining about the unfairness of the Army's rules of custody and the ability of commanding officers to remand people in custody. Hood had been absent without leave four times before his commanding officer arrested him, and judgment in his case took five years.

The Bill creates a massive administrative burden involving judicial officers, and so on. That burden is not the result of manifest injustice in the armed forces: it has been imposed simply to meet the requirements of the European convention on human rights.

The second part of the Bill changes the period in which a soldier may elect for court martial. That will make such a soldier's position worse. The Bill does not allow a commanding officer an opportunity to find a soldier not guilty before that soldier must decide to accept his award or go to court martial. The Bill will force a soldier to make that decision earlier, so removing the opportunity to be cleared by his commanding officer.

Commanding officers are not really aware of the detail of the Bill. Neither was I, until I served on the Select Committee, and took part in the debates in Standing Committee and on Second and Third Readings. The Bill did not seem very important. Commanding officers will find, however, that the administration of justice for armed forces personnel will be seriously undermined. The Bill will demand rules of evidence that non-commissioned officers—the first links in the chain of command in the execution of justice—will not be able to meet. How do the Government think that those NCOs will be able to maintain discipline in the sub-units that they administer now that they cannot use the summary discipline procedure?

I hope that my hon. Friends on the Front Bench will divide the House on this matter. I used to be a regular soldier, and I have to say that the Bill does not advance the interests of armed forces personnel. Instead, it makes their position worse. I accept that the rules relating to custody in the first part of the Bill are driven by a European convention judgment, but the Government have offered no evidence that the rest of the Bill has been required by other judgments from the European Court of Human Rights.

It is time to do what we should have done in 1951, had we only had the prescience. We should make a reservation for our armed forces from the European convention on human rights and the European Court. In that way we might prevent what is a bitter and extraordinary irony—that this Bill will make the administration of justice for our soldiers, sailors and airmen worse rather than better.

Question put, That the Bill be now read the Third time:—

The House divided: Ayes 301, Noes 113.

Division No. 152] [3.46 pm
AYES
Abbott, Ms Diane Ballard, Jackie
Ainger, Nick Banks, Tony
Ainsworth, Robert (Cov'try NE) Barnes, Harry
Alexander, Douglas Barron, Kevin
Allan, Richard Bayley, Hugh
Anderson, Donald (Swansea E) Beard, Nigel
Anderson, Janet (Rossendale) Beckett, Rt Hon Mrs Margaret
Armstrong, Rt Hon Ms Hilary Bell, Stuart (Middlesbrough)
Atherton, Ms Candy Benn, Hilary (Leeds C)
Austin, John Benn, Rt Hon Tony (Chesterfield)
Bennett, Andrew F Fitzpatrick, Jim
Berry, Roger Flint, Caroline
Best, Harold Follett, Barbara
Blackman, Liz Foster, Rt Hon Derek
Blears, Ms Hazel Foster, Don (Bath)
Boateng, Rt Hon Paul Foster, Michael Jabez (Hastings)
Bradley, Keith (Withington) Foulkes, George
Bradley, Peter (The Wrekin) Galloway, George
Bradshaw, Ben Gapes, Mike
Brand, Dr Peter Gardiner, Barry
Brinton, Mrs Helen George, Andrew (St Ives)
Brown, Rt Hon Nick (Newcastle E) George, Bruce (Walsall S)
Browne, Desmond Gerrard, Neil
Buck, Ms Karen Gilroy, Mrs Linda
Burden, Richard Godman, Dr Norman A
Burnett, John Godsiff, Roger
Burstow, Paul Goggins, Paul
Butler, Mrs Christine Gordon, Mrs Eileen
Byers, Rt Hon Stephen Griffiths, Jane (Reading E)
Caborn, Rt Hon Richard Griffiths, Win (Bridgend)
Campbell, Mrs Anne (C'bridge) Grogan, John
Campbell, Rt Hon Menzies (NE Fife) Hain, Peter
Hall, Mike (Weaver Vale)
Campbell, Ronnie (Blyth V) Hamilton, Fabian (Leeds NE)
Cann, Jamie Harvey, Nick
Caplin, Ivor Heal, Mrs Sylvia
Casale, Roger Healey, John
Caton, Martin Heath, David (Somerton & Frome)
Cawsey, Ian Henderson, Ivan (Harwich)
Chapman, Ben (Wirral S) Hepburn, Stephen
Clapham, Michael Hesford, Stephen
Clark, Rt Hon Dr David (S Shields) Hill, Keith
Clark, Dr Lynda (Edinburgh Pentlands) Hinchliffe, David
Hodge, Ms Margaret
Clark, Paul (Gillingham) Hoon, Rt Hon Geoffrey
Clarke, Eric (Midlothian) Hope, Phil
Clarke, Tony (Northampton S) Hopkins, Kelvin
Clelland, David Howells, Dr Kim
Clwyd, Ann Hoyle, Lindsay
Coaker, Vernon Hughes, Kevin (Doncaster N)
Coffey, Ms Ann Hughes, Simon (Southwark N)
Cohen, Harry Humble, Mrs Joan
Coleman, Iain Hurst, Alan
Colman, Tony Hutton, John
Connarty, Michael Iddon, Dr Brian
Corbett, Robin Illsley, Eric
Corbyn, Jeremy Ingram, Rt Hon Adam
Corston, Jean Jackson, Ms Glenda (Hampstead)
Cotter, Brian Jackson, Helen (Hillsborough)
Cousins, Jim Jamieson, David
Cranston, Ross Jenkins, Brian
Crausby, David Johnson, Alan (Hull W & Hessle)
Cryer, John (Hornchurch) Johnson, Miss Melanie (Welwyn Hatfield)
Cummings, John
Cunningham, Jim (Cov'try S) Jones, Helen (Warrington N)
Curtis-Thomas, Mrs Claire Jones, Jon Owen (Cardiff C)
Darvill, Keith Jones, Dr Lynne (Selly Oak)
Davey, Valerie (Bristol W) Jones, Martyn (Clwyd S)
Davidson, Ian Jowell, Rt Hon Ms Tessa
Dawson, Hilton Keen, Alan (Feltham & Heston)
Dean, Mrs Janet Kelly, Ms Ruth
Denham, John Kemp, Fraser
Dismore, Andrew Kennedy, Jane (Wavertree)
Dobbin, Jim Khabra, Piara S
Donohoe, Brian H Kidney, David
Dowd, Jim Kilfoyle, Peter
Drown, Ms Julia King, Andy (Rugby & Kenilworth)
Dunwoody, Mrs Gwyneth King, Ms Oona (Bethnal Green)
Eagle, Angela (Wallasey) Ladyman, Dr Stephen
Eagle, Maria (L'pool Garston) Lawrence, Mrs Jackie
Edwards, Huw Laxton, Bob
Ellman, Mrs Louise Lepper, David
Ennis, Jeff Leslie, Christopher
Fearn, Ronnie Levitt, Tom
Field, Rt Hon Frank Lewis, Terry (Worsley)
Fisher, Mark Linton, Martin
Lloyd, Tony (Manchester C) Ryan, Ms Joan
Llwyd, Elfyn Salter, Martin
Lock, David Savidge, Malcolm
Love, Andrew Sawford, Phil
McAvoy, Thomas Sedgemore, Brian
McCabe, Steve Sheerman, Barry
McDonagh, Siobhain Sheldon, Rt Hon Robert
McDonnell, John Shipley, Ms Debra
McGuire, Mrs Anne Simpson, Alan (Nottingham S)
Mclsaac, Shona Singh, Marsha
McKenna, Mrs Rosemary Skinner, Dennis
Mackinlay, Andrew Smith, Rt Hon Andrew (Oxford E)
MacShane, Denis Smith, Angela (Basildon)
Mactaggart, Fiona Smith, Miss Geraldine (Morecambe & Lunesdale)
McWalter, Tony
McWilliam, John Smith, Jacqui (Redditch)
Mahon, Mrs Alice Smith, Llew (Blaenau Gwent)
Mallaber, Judy Smith, Sir Robert (W Ab'd'ns)
Mandelson, Rt Hon Peter Southworth, Ms Helen
Marsden, Gordon (Blackpool S) Spellar, John
Marsden, Paul (Shrewsbury) Starkey, Dr Phyllis
Marshall, David (Shettleston) Stevenson, George
Marshall-Andrews, Robert Stewart, Ian (Eccles)
Martlew, Eric Stinchcombe, Paul
Maxton, John Stoate, Dr Howard
Meacher, Rt Hon Michael Straw, Rt Hon Jack
Merron, Gillian Stringer, Graham
Michie, Bill (Shefld Heeley) Stuart, Ms Gisela
Miller, Andrew Taylor, Rt Hon Mrs Ann (Dewsbury)
Moffatt, Laura
Moran, Ms Margaret Taylor, Ms Dari (Stockton S)
Morgan, Ms Julie (Cardiff N) Taylor, David (NW Leics)
Morley, Elliot Temple-Morris, Peter
Mountford, Kali Thomas, Gareth (Clwyd W)
Mullin, Chris Thomas, Gareth R (Harrow W)
Murphy, Denis (Wansbeck) Timms, Stephen
Murphy, Jim (Eastwood) Tipping, Paddy
Naysmith, Dr Doug Todd, Mark
O'Brien, Bill (Normanton) Tonge, Dr Jenny
Olner, Bill Touhig, Don
O'Neill, Martin Trickett, Jon
Öpik, Lembit Truswell, Paul
Organ, Mrs Diana Turner, Dennis (Wolverh'ton SE)
Turner, Neil (Wigan)
Osborne, Ms Sandra Twigg, Derek (Halton)
Palmer, Dr Nick Twigg, Stephen (Enfield)
Pearson, Ian Tyler, Paul
Pendry, Tom Tynan, Bill
Perham, Ms Linda Walley, Ms Joan
Pickthall, Colin Ward, Ms Claire
Pike, Peter L Wareing, Robert N
Plaskitt, James Watts, David
Pollard, Kerry White, Brian
Pond, Chris Wicks, Malcolm
Pope, Greg Williams, Rt Hon Alan (Swansea W)
Pound, Stephen
Prentice, Ms Bridget (Lewisham E) Williams, Alan W (E Carmarthen)
Prentice, Gordon (Pendle) Williams, Mrs Betty (Conwy)
Primarolo, Dawn Winnick, David
Prosser, Gwyn Winterton, Ms Rosie (Doncaster C)
Quinn, Lawrie Wood, Mike
Radice, Rt Hon Giles Woolas, Phil
Raynsford, Nick Worthington, Tony
Reed, Andrew (Loughborough) Wright, Anthony D (Gt Yarmouth)
Rendel, David Wright, Dr Tony (Cannock)
Roche, Mrs Barbara Wyatt, Derek
Rooney, Terry
Roy, Frank Tellers for the Ayes:
Ruane, Chris Mr. Clive Belts and
Russell, Ms Christine (Chester) Mr. Gerry Sutcliffe.
NOES
Amess, David Bell, Martin (Tatton)
Arbuthnot, Rt Hon James Bercow, John
Atkinson, Peter (Hexham) Blunt, Crispin
Baldry, Tony Boswell, Tim
Beggs, Roy Bottomley, Peter (Worthing W)
Brazier, Julian Lyell, Rt Hon Sir Nicholas
Brooke, Rt Hon Peter McCartney, Robert (N Down)
Browning, Mrs Angela MacGregor, Rt Hon John
Bruce, Ian (S Dorset) McIntosh, Miss Anne
Burns, Simon MacKay, Rt Hon Andrew
Butterfill, John Maclean, Rt Hon David
Chope, Christopher McLoughlin, Patrick
Clappison, James Madel, Sir David
Collins, Tim Maginnis, Ken
Cran, James Maples, John
Davies, Quentin (Grantham) Mates, Michael
Davis, Rt Hon David (Haltemprice) Maude, Rt Hon Francis
Day, Stephen Moss, Malcolm
Donaldson, Jeffrey Norman, Archie
Duncan, Alan O'Brien, Stephen (Eddisbury)
Duncan Smith, Iain Ottaway, Richard
Evans, Nigel Page, Richard
Faber, David Paice, James
Fabricant, Michael Paisley, Rev Ian
Flight, Howard Portillo, Rt Hon Michael
Forsythe, Clifford Prior, David
Forth, Rt Hon Eric Robinson, Peter (Belfast E)
Fox, Dr Liam Roe, Mrs Marion (Broxbourne)
Fraser, Christopher Ruffley, David
Gibb, Nick Sayeed, Jonathan
Gillan, Mrs Cheryl Shephard, Rt Hon Mrs Gillian
Gorman, Mrs Teresa Simpson, Keith (Mid-Norfolk)
Gray, James Smyth, Rev Martin (Belfast S)
Green, Damian Spelman, Mrs Caroline
Greenway, John Spring, Richard
Grieve, Dominic Stanley, Rt Hon Sir John
Hamilton, Rt Hon Sir Archie Streeter, Gary
Hammond, Philip Swayne, Desmond
Hawkins, Nick Syms, Robert
Heald, Oliver Tapsell, Sir Peter
Horam, John Taylor, Ian (Esher & Walton)
Howard, Rt Hon Michael Taylor, John M (Solihull)
Howarth, Gerald (Aldershot) Tredinnick, David
Hunter, Andrew Trend, Michael
Jenkin, Bernard Tyrie, Andrew
Johnson Smith, Rt Hon Sir Geoffrey Viggers, Peter
Walter, Robert
Key, Robert Wardle, Charles
King, Rt Hon Tom (Bridgwater) Wells, Bowen
Kirkbride, Miss Julie Whitney, Sir Raymond
Laing, Mrs Eleanor Whittingdale, John
Lait, Mrs Jacqui Winterton, Mrs Ann (Congleton)
Lansley, Andrew Winterton, Nicholas (Macclesfield)
Leigh, Edward Yeo, Tim
Lidington, David Young, Rt Hon Sir George
Lilley, Rt Hon Peter Tellers for the Noes:
Lloyd, Rt Hon Sir Peter (Fareham) Mr. John Randall and
Loughton, Tim Mr. Geoffrey Clifton-
Luff, Peter Brown.

Question accordingly agreed to.

Bill read the Third time, and passed.