COSTS AGAINST LEGAL REPRESENTATIVES ETC. (Hansard, 2 April 2001)

§ Mr. Key
Clause 27 deals with costs awarded against legal representatives. It provides that, in any proceedings, one of the courts listed may disallow, or order the legal or other representative to meet, the whole of any wasted costs. It defines "wasted costs" as costs incurred by a party as a result of any improper, unreasonable or negligent act or omission on the part of any representative or any employee of a representative". This is a serious issue. It is hard enough for those of us who are not lawyers to cope with detailed legislation of this kind in any event. The Select Committee considering the Bill received some interesting evidence in the form of a memorandum from Professor G. R. Rubin, who, in commenting on changes in military law, pointed out that some would argue that there was an obscure or hidden military law agenda.
That is why I am interested in a discussion of sins of omission in relation to clause 27. Such sins may be committed by military documents, such as the various provost manuals, which have a restricted classification. They prescribe, among other things, legal procedures for the exercise of constabulary power, or whether the Army Commissioning Regulations 1999—which derive from royal prerogative, as does much military law—should continue to be classified.
That was an interesting proposition, which led me to table a parliamentary question on 2 February asking the Secretary of State to place in the Library copies of the documents listed by Professor Rubin—the unit folder 95 entitled "Military Custody and Summary Dealing System", the provost manuals, the Army Commissioning Regulations 1999, the military secretary's guide to officers' confidential reports, Army form AF B9926 and the Army general and administrative instructions, volume 5, instruction No. 6.
That seemed quite reasonable, and I had a very reasonable reply from the Minister for the Armed Forces, who said that copies would be placed in the Library.
When the Select Committee heard evidence from the Secretary of State on 7 March, I raised the matter with him. I pointed out that by that date, more than a month after the tabling of my question, the Library had three times requested the parliamentary branch of the Ministry of Defence to put the papers in the House, and that three times the request had been refused. The Secretary of State replied to my question—it is question 1131, on page 165 of the Select Committee report—by saying, "I will." I said, "Thank you."
In anticipation of tonight's proceedings, I returned to the Library. I asked what had happened to the manuals. On 28 March, I received a letter from the Library that told me: I contacted the Parliamentary Clerk's office today and the official told me that these documents are classified. There will therefore be a delay of at least a couple of weeks while versions are approved for placing in the Library. As soon as we receive the manuals, we will contact you again. I hope that this is helpful. It was very helpful indeed, and I am grateful to the Library; but what a palaver. The Minister of State says yes. The parliamentary branch countermands that, and says that the documents are classified. The Secretary of State then says yes, and nothing happens, except that the Library is again refused permission.
Someone should get a grip of the Ministry of Defence. I hope that the Under-Secretary of State will be able to achieve more than either the Minister of State or the Secretary of State, and I should be grateful if he would do so now.

§ Mr. Blunt
It appears from clause 27(3)(b) that the regulations made by the Secretary of State under clause 26 can be made against prosecuting officers appointed under section 83C of either of the 1955 Acts or under section 52J of the 1957 Act". Having seen the Army legal corps in action, I feel that the clause might prove rather expensive for the MOD. In my experience, the corps contained many inexperienced lawyers who were chucked in at the deep end. While acting as an assistant prosecuting officer, I sat alongside one when he was a prosecuting officer, and I am slightly worried that the conduct of the young captain beside me might have led me, as well as the prosecuting officer, to collect a bill under this legislation.
The prosecution was perfectly well prepared by the regiment, and the case seemed clear-cut, as it related to someone stealing a fellow soldier's bank card—he knew the number—and emptying his account on five separate occasions, but it was conducted so badly by the prosecuting officer that, halfway through the proceedings, the defence moved no case to answer, whereupon the young captain conducting the case for the Army legal corps burst into tears and had to be taken away to another room, with a rather aggressive judge advocate taking part.
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In such circumstances, with the case collapsing because of the incompetence of the prosecuting officer—in my experience, regrettably, not an uncommon occurrence—the defence could very properly have moved for costs. Regardless of whether the defence is funded privately or through legal aid, the prosecution could surely be liable for costs under this part of the Bill.
If the prosecution is found liable for costs, will a bill from the Ministry Defence, which funds the prosecution, go to the legal aid budget and/or the individual? What is the position of the poor, hapless officer at regimental duty, who is not a lawyer—this is what happened to me—but is the assistant prosecuting officer?

§ Mr. Hancock
If prosecution cases are not prepared properly and the officer presenting the case is incompetent, surely there should be redress and the defendant should be able to claim costs. That will surely prove an advantage to the court martial system, because people will have to be better prepared, and better able to conduct themselves, in future.

§ Mr. Blunt
I agree. It is perfectly proper to expect the Army legal corps and other armed forces legal services to operate to a proper standard, but they often have difficulty in recruiting lawyers of sufficient ability to make the system fly. The system is skewed in favour of the defence because of service lawyers' limited resources. At least, that was true in my time—I am prepared to accept that things may have changed in the past dozen years. Have the consequences in terms of the cost to the Ministry been thought about? Will the Ministry have to pay the legal aid fund, or individuals funding their own defence, out of MOD funds, as it properly should do?

§ Mr. Hancock
I see nothing wrong with what is being proposed. If the Ministry of Defence ends up having to pay a large sum because of the incompetence of prosecutions, so be it. That is one reason why it should get its legal services in good order. When evidence was given to the Defence Committee, of which I am proud to be a member, several questions were asked about the calibre of lawyers recruited to the armed forces and we were assured that it was no longer a problem, that young lawyers who wanted a future in the military were being recruited in sufficient numbers and that senior officers were content that they were in the process of developing sufficiently robust legal services.
We were told that proper advice would be given to commanding officers about how courts martial or other hearings should be conducted. I am sure that that confidence was based on sound information. We were assured that sufficient resources would be put into armed forces legal services. Unless the Minister is not prepared to repeat those undertakings, I see nothing wrong with the clause, but it is a bit rich for the Ministry of Defence to suggest that it has a backstop on the compensation that will be paid if we get it wrong. It should clearly start from the premise that it is not going to prosecute anyone unless there is a good chance of success and it is totally confident that the prosecution team is sufficiently robust to present the case properly. Whether the defence is up to the job is another matter.

§ Dr. Moonie
On the point made by the hon. Member for Salisbury (Mr. Key), I have no idea what is holding matters up, but I will ensure that the logjam is broken as quickly as possible.
The hon. Member for Reigate (Mr. Blunt) should accept that the Army legal services have improved considerably since his day. They provide a high standard of service. The Army prosecuting authority, which has been set up since his time, has further increased the competence with which prosecutions are conducted.
It may seem anomalous to award costs if service officers are conducting both prosecution and defence, but the point is that that is not always the case, and in order to be equitable, whichever side causes an irresponsible increase in costs should be liable for it. That is perfectly proper. The hon. Gentleman can rest assured that his point about funding is accepted.