§ The Committee met in the Moses Room at half past three of the clock.
§ [The Deputy Chairman of Committees (Viscount St. Davids) in the Chair.]
The Deputy Chairman of Committees (Viscount St. Davids)
Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The House has agreed on the recommendation of the Procedure Committee that there shall be no Divisions in this Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
I should also explain what will happen if there is a Division in the Chamber while we are sitting. This Committee will adjourn as soon as the Division bells are rung and will then resume after 10 minutes.
On Question, Title postponed.
§ Clause 1 agreed to.
§ Clause 2 [Enlistment or entry for local service]:
Lord Judd moved Amendment No. 1:
Page 2, line 10, at end insert ("but no regulations shall be made under paragraphs (j) and (k) above until a full report on the consultative process and pilot studies relating to the Ministry of Defence police has been laid before both Houses of Parliament.").
§ The noble Lord said: In moving this amendment, I want to place on record at the outset how grateful I am to all those with whom it has been possible to discuss the crucial issues at stake.
§ This amendment deals with the military local service engagements and the military provost guard service. Both concepts, one implementing the other, have far-reaching implications. The proposals have been described by some as the military equivalent of a new standing army.
§ There is to be a consultative process and also pilot studies and if these are not to be regarded as a cynical formality, it is obviously essential that the outcomes of both should be fully considered by Parliament before it is decided whether the scheme should proceed. Literally in the midst of the Second Reading we became acquainted with the consultation paper, which was kindly distributed during our deliberations. I would like 2GC to make the point that the consultation paper has great implications for most of those involved. Thirty working days for people with a bevy of civil servants and others assisting them may seem a reasonable time in which to complete consultations; but, for example, for the Ministry of Defence Police up and down the country to assemble the various arguments and to make sure that ordinary members have a chance to take into account what is being proposed, I want to suggest that the timescale is rather tight.
I also want to draw attention to telling little phrases in the document. For example, on page 2, there is the phrase,
On the assumption that the pilot scheme is a success".
§ That wording may seem quite innocent in the drafting but to those who feel that there is a tremendous amount at stake it begins to acquire a different kind of significance. It is lending some weight to the anxiety that everything is decided and that the consultation is a formality. Anything that the noble Earl is able to say to reassure me in that context would be deeply appreciated.
§ I am sure we would all agree that it is not appropriate for a scheme of this significance to be introduced by the back door via a brief clause in a general Bill of this sort. Already some very cogent anxieties have been expressed by the defence police themselves. Perhaps I may ask for the indulgence of noble Lords in order to quote fairly fully from some of the letters I have received. In that way we who are deliberating at this level can take into account the real anxieties at the front line of this concern.
I quote first from Michael Jones, who is the national chairman of the Defence Police Federation:
Ministry of Defence Police Officers come into constant contact with members of the public, sometimes hostile; but at other times, in need of assistance. Our members are fully trained and at tested police constables, possessing all the powers, privileges and responsibilities that the law confers on their colleagues in The Scottish Office's and Home Department's forces. They never function solely as 'armed guards', as the MSLE proposal implies. It is wrong to replace civilian police officers who might come into contact with ordinary members of the public as well as armed force personnel with an armed military guard. A soldier with a gun should not be regarded as a proper replacement for a police officer in this function. Bringing military armed guards into contact with civilian members of the public, be they contractors, protesters, trespassers, etc., is frankly dangerous. It could also create a gross infringement of civil liberties. In a democratic country such as ours, a force of this nature should not be brought into existence except in times of war".
That is the federation.
From the Base Ordnance Depot, Donnington, I have received a letter. I expect other noble Lords have received a similar letter. It makes the point:
BOD Donnington is one of the stations where it is proposed to implement a trial period of the Military Provost Guard Service (MPGS) with effect from April 1997. Initially it was proposed in the Rucker Report that the MPGS would be implemented at establishments where the service personnel exceeded 50 per cent. of the establishment population. At Donnington this is not the case. The civilian population here well outweighs the service personnel by more than 85 per cent. It was proposed that the MPGS would replace the Ministry of Defence Police (MDP) on a one for one basis on armed and unarmed guarding. However, the MDP at Donnington do not carry out static armed guarding duties, although they are armed whilst on duty. Furthermore, how can this transition
be classed as a trial period when the proposals are that MDP at Donnington are to be replaced before the end of the trial period (one month after implementation)".
Finally, a particularly interesting letter comes from Ministry of Defence Police personnel at Chetwynd barracks, Chilwell. It says:
As you know, the MPGS scheme proposes that Ministry of Defence policemen are to be replaced on a one-for-one basis by infantry-trained, non-regular soldiers where those policemen are employed solely on armed guarding duties. This is what the scheme's protagonists within the MoD and Government have been telling Parliament, but it is far from the truth. Hardly any MDP on stations without a nuclear association are employed solely as armed guards. At the three MDP manned stations chosen to pilot the scheme. Chilwell, Donnington and Wilton, the MDP complements are and have for years been employed on primary policing duties with the added capability to provide an armed response if necessary".
The letter continues:
On my own station, Chilwell, a complementing review scheduled for September 1996 was rushed forward to mid-April. This resulted in our being retrospectively relegated on paper only to the required status of armed guards, although our actual employment has not changed at all. This review also increased our complement, again on paper only, from our current total of 20 men to the 26 men which the MPGS would require. This represents a hidden increase in manning by the MPGS over our current true MDP numbers".
The letter concludes with the observation:
The scheme is being promoted on the basis that it will return more MDP to policing duties. This idea is fallacious. Almost all MDP employed on armed guarding duties do so on nuclear associated stations and presumably will continue to do so. If the MPGS scheme is carried through fully, the result will be a much reduced Ministry of Defence Police with, paradoxically, a much smaller percentage of its men and women carrying out the policing duties within the MoD estate for which the force exists. The armed guarding duties would be almost untouched whilst civilian policing of MoD(A) establishments, with their large civilian workforce and married quarters estates, as well as of civilian contractors and visitors, would largely disappear. The real purpose behind the MPGS scheme is to provide MoD(A) with an extra battalion of trained infantry, albeit of limited capability, outside of normal funding, the funds required being provided by the virtual eradication of the MDP within MoD(A) establishments".
§ I hope the Committee will forgive me for having quoted at length but on these issues it is sometimes important to see them from the perspective of those upon whom we are relying and who are deeply affected. As one experienced MoD policemen put it to me only yesterday, "MoD police are not armed guards; they are constables trained in the use of firearms." Many of the doubts they express are shared by noble Lords in all parts of this House and certainly by honourable Members in all parts of the other place. Statements by the Minister of State for the Armed Forces have frankly so far failed to reassure or to deal with the key points.
§ Let me reiterate some of them. First, what really would be the financial cost of this scheme? For example, what precise estimates have been made of the redundancy costs for MoD police? What precise estimates have been made for recruitment and training costs, presumably more for raw civilians than for ex-soldiers? How many will in the end be ex-soldiers, and how many civilians? What kind of reliable surveys have been conducted on all this? What would be the consequent costs for the civil police, who will inevitably have to take on additional community and other policing 4GC responsibilities? What will be the net saving for the Defence budget—indeed, will there be any such saving? When will the break-even date be? And what will be the net savings to the nation as a whole, taking into account the costs of additional duties for the civil police? Or is it possible that we are on a disruptive, expensive, hare-brained ride to nothing, or worse, of the poll tax variety?
§ Secondly, as the letters I quoted indicated, is it not true that local soldiers guarding defence installations will not have the same responsibilities and powers as the MoD police for wider policing duties; for example, policing MoD housing estates or dealing with burglaries or car theft? What exactly will be their powers over civilians as distinct from service personnel? Is it not the case that civilians constitute the main threat to defence property? Indeed, what will happen to the public's rights? The MoD police are subject to the Police Complaints Authority— soldiers obviously will not be.
§ Thirdly, with their lower rates of pay and generally unfavourable conditions of service as compared with the real Army, with the absence of long-term job security, with the prospect of little but monotonous static armed guarding ahead— never a switch-on for the average soldier— with all this coupled nevertheless with being subject to service discipline, just how many people of the right calibre will really be prepared to serve and for how long will they put up with it?
§ Fourthly, what will characterise the interface with the real Army? In times of pressure, how local will local service prove to be? Is there not some substance in the fear that the MoD is indeed seeking a cheap source of infantry? Why otherwise are the Government not ideologically sub-contracting in their usual way to the private sector, bringing in Securicor or whoever? These are just some of the questions on which convincing evidence and answers need to be available before this far-reaching proposal is considered for a possible full go-ahead. Hence the amendment.
§ I am sure the Committee agrees that the MoD police have a very special role, not least because of the sensitive nature of the materials held by MoD, the requirement to carry arms and the presence on the defence estate of service married quarters containing large numbers of civilian dependants. I cannot do better than refer the Committee to the sentiments of the Minister of State himself in the other place on 9th March, when he emphasised that the MoD police do a splendid job and are a fine force that are greatly respected. We all agree with that. If we respect them, we must take their concerns about the effectiveness of the new scheme as seriously as we take our own concerns. I beg to move.
§ Lord Redesdale
I support the amendment and my noble friend Lord Mayhew in opposing the Question that Clause 2 stand part. We oppose clause stand part because we have doubts about the effect of the clause. The noble Lord, Lord Judd, has covered in significant detail many of the points relating to this issue and I shall therefore restrict myself to asking just a few questions that occur to us on these benches.
5GC On which bases will the pilot studies take place? If they turn out to be a failure or have significant defects and they bring to light the fact that this scheme may not work in the way it is set out, what will then happen to this clause? Will the Ministry of Defence police be retained or will they go forward in the manner set out anyway?
The other point that occurs to me, living close to Otterburn training area, is that the Ministry of Defence Police are usually based locally and are a significant source of local employment. To a local community one of the cost implications of a garrison town is whether, if the Ministry of Defence Police are to be removed from this duty, there will be a significant deficit in local employment. Some areas such as Otterburn rely solely on the training area for a source of employment and this could have a very detrimental effect.
My other point I should like to raise as a question. If a garrison unit is moved to a base, would that unit be liable to supply soldiers to act as armed guards if there was a shortfall? Would it then accept the liability to provide service personnel in this function? If that is the case— and it may very well not be— will the pilot study measure the effect on their morale? As is the case in the regular Army at the moment, there are significant problems of undermanning, and to add one more liability, one more duty, could have an effect on morale, especially as guard duty, as I know from my own experience in the Territorials, is in the long term extremely boring and detrimental to base morale.
The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe)
The noble Lords, Lord Judd and Lord Redesdale, have rehearsed a considerable list of concerns on this matter - concerns, I may say, which have been put to me directly by the Defence Police Federation. I hope that I can put the majority of them at least to rest.
Clause 2 will give the Armed Forces the flexibility to recruit personnel for military service in a specified locality rather than worldwide. The Committee may be minded to agree that in itself that is sensible— or rather, that it seems strange that we have not enjoyed that flexibility hitherto.
It has been said, rather unkindly, in another place that what is being proposed is a "travel to work" army. I can assure the Committee that the overwhelming majority of servicemen and women will continue to be required to serve wherever needed, at home or overseas, in peace or war. There are no proposals, therefore, for the general introduction of local service schemes, other than for guarding. However, the Bill does give the option to introduce such schemes if the services see a need for them before the next Armed Forces Bill in five years' time. As I have already said, it is simply a matter of prudently building in some flexibility.
I do not know whether it will offer any reassurance to the Committee if I say that I would be hard pushed to speculate on other types of task that might be suitable for local service engagements. There is no hidden list of agenda, or anything like that, waiting to be produced the moment the Bill is enacted.
6GC The reasons for considering the use of local service personnel could vary according to the circumstances of the case. There are some jobs that have to be done which might be unattractive to full-time regulars or inappropriate as full-time tasks for them, but which would nevertheless best be carried out by uniformed service personnel rather than by civilians or police officers. It is on this basis that we have decided to introduce the military provost guard service, using MLSE personnel.
The MPGS will be a professional, well-trained and capable guard service. Ministers would not agree to its establishment unless it was. Its success should be demonstrated by the proposed pilot scheme.
At present significant numbers of MDP officers are employed at Army establishments on armed guarding duties for which police powers are not required. It is wrong in principle, I believe, to recruit high quality individuals, give them extensive police training and then to use them wholly or mainly as armed guards.
Employing local service engagement military provost guard service soldiers to carry out these guarding duties will enable significant resource cost savings to be made without there being any reduction in security standards.
I hope that I have been able to assure the Committee that the powers under Clause 2 will be used sensibly and selectively. Local service is certainly no panacea for Armed Forces such as ours which have and will continue to have commitments and responsibilities which are both extensive and challenging. However, I believe that local service does have a place, if only a limited one and, on that basis, I commend the clause to the Committee.
The noble Lord, Lord Redesdale, asked me about the pilot scheme. Subject to the passage of the necessary legislation, the pilot scheme should start in April 1997. It would be conducted at four places—the new Defence Intelligence and Security Centre at Chicksands; Chilwell, which is the home of HQ 49 (E) Brigade and of 27 minor units; the Central Ordnance Depot at Donnington; and Headquarters Land Command at Wilton. The C-in-C Land Command would make a full report to Ministers on whether a pilot scheme had been successful in both security and financial terms. Ministers' conclusions would then be reported to the Defence Committee in another place, as well as being the subject of consultation with the staff associations and the trade unions.
The noble Lord asked me what would happen if the scheme were to fail. If the pilot scheme were to fail—and we do not expect that it will—then, quite simply, the soldiers' engagements would not be renewed unless there was other appropriate work to which they could be moved; and, quite clearly, we would have to have a rethink of the way ahead. I do not pretend to the noble Lord that that rethink has taken place. It would be odd if it had because, as I said just now, these are, in our view, sensible proposals which are also workable.
The noble Lord, Lord Judd, asked about the cost of what we are proposing. Let me say that the investment appraisal and the affordability assessment that we carried out shows that the proposals and the scheme will 7GC be cost effective and also affordable. He also spoke about the powers conferred upon the MPGS. It will not have constabulary powers— that is quite clear. It can, however, conduct security patrols with the agreement of the local chief constable, and many soldiers already do. We should bear in mind that armed guarding by soldiers is nothing new. It has been happening for many years; it has been happening successfully. So the apprehension that the noble Lord, Lord Judd, expressed can perhaps be tempered by the thought that this is a tried and tested system.
The noble Lord also expressed the fear that the Ministry of Defence police who are in posts requiring police powers will be replaced. I can assure him there is no question of that. Only the MDP employed on guarding duties will be replaced, according to agreed complementing criteria.
I turn briefly to the amendment to the clause. I freely confess that I am a little bewildered by the amendment. The intention is that the main MPGS scheme, involving the creation of around 600 local service guarding posts, should not go ahead until the completion of the pilot scheme which, as I said, we plan to start next year. The pilot scheme cannot get underway until we have recruited men and women on MLSE engagements, and that cannot happen until regulations are made under Section 2(1) of the Armed Forces Act 1966, which Clause 2 of the Bill amends.
The Committee may appreciate that the amendment, unwittingly or otherwise, would frustrate that. It appears to prevent the making of regulations until Parliament has received a report on pilot studies. I assume that is a reference to the pilot scheme. Yet we cannot report on the pilot scheme until we have made the regulations allowing us to conduct that scheme. The regulations themselves, as a statutory instrument, will have to be laid before Parliament, where they will be subject to the negative resolution procedure.
The amendment also refers to the consultative process, and, from what the noble Lord said, it is intended to prevent the introduction of the pilot scheme until the Defence Select Committee in another place and both Houses have considered the consultative document issued by my department on 29th May. There is no need to provide for that in legislation. As I have already said, the regulations themselves have to be laid before Parliament.
It could be also that the amendment is intended to prevent the introduction of the main scheme until the report to Parliament has been made on the pilot scheme. My honourable friend the Minister of State for the Armed Forces has already undertaken to make a report on the outcome of the pilot scheme and our proposals for phasing in the main scheme to the Defence Select Committee in another place. I gladly repeat that undertaking today. I do not believe there is any need to provide for that in legislation.
If I understand the purpose of the amendment correctly, the intention is not to stop the MPGS scheme dead in its tracks; it is to ensure that Parliament is kept properly informed about the outcome of the consultative 8GC process and the pilot scheme. I can reassure the Committee on that point, as I have already indicated. However, I cannot advise the Committee to look kindly on this amendment. Not only is it unnecessary for the purpose of ensuring that Parliament is kept properly informed; even more fundamentally, as I have already explained, the amendment would have the effect of stopping the pilot scheme.
§ Lord Judd
I am grateful to the noble Earl for the very full way in which he has responded to our observations. I put it to the noble Earl that his argument about regulations, although apparently attractive, strengthens the misgivings, inevitably, which are held by quite a number of people that the Government are very far advanced in their commitment. If they were really committed to a genuine pilot scheme, why would they not have specified far more clearly in the proposed legislation that the regulations being introduced were attached to the pilot scheme? It seems to me that what is happening is that we are being sucked in to the sort of ratchet, as so often happens in policy development, whereby the regulations for the whole scheme will be in place, because they have to be in place for the pilot scheme, and all the arguments will increasingly therefore fall towards the logic of continuing with what has been started. I hope the noble Earl will not feel I am just being unfeeling or insensitive in saying that his arguments have strengthened my misgivings.
Perhaps I may I also say that, while he has certainly dealt with some of the observations we have made, everything that he said and that was said in the Second Reading debate, and indeed everything I have read in the debates in the other place, suggest that the references to the costing of the scheme are very generalised and sweeping, whereas some of the criticisms that are being made are very specific on this score. We know that it will take more soldiers in this new arrangement to cover the work which was previously done by Ministry of Defence police as part of their wider responsibilities, and the point that the Ministry of Defence police keep making is that it is very difficult, outside nuclear installations, to find Ministry of Defence police who are largely doing this guarding work. They do the guarding work as part of much wider responsibilities.
There must be anxieties about the real costs involved in this. We could go further. We understand, for example, that the Government have not yet reached a conclusion on whether or not service housing will be available to the new soldiers, and what the costing implications of that will be. It seems to me that we are being told that the costing exercise has been carried out— there have been many more examples of this— before evidence of a really thorough financial examination of the scheme is available for all to see.
§ 4 p.m.
I am grateful to the noble Lord. It may assist the Committee if I expand on my earlier remarks. The investment appraisal we did showed that in resource terms it would be highly cost-effective to use MLSE soldiers to replace MDP officers employed only on guarding duties. The assumption was that those soldiers 9GC would replace MDP officers on a one-for-one basis. Given the resource cost savings which would result from the formation of MPGS, MDP voluntary early retirement or severance payments allowed for in the investment appraisal would be affordable. We do not expect those payments in practice, but we allowed for them nevertheless.
The affordability assessment shows that aggregate savings from replacing MDP with MPGS would be some £20 million, net present value, by the year 2005–2006. The combined pilot and main schemes would break even in 2001 or 2002. Further details are contained in the annex to the consultative document. The sensitivity analysis we carried out on those figures has confirmed that the conclusions are realistic, despite the inevitable uncertainties of forecasts which extend over a fairly long period. We have done our homework pretty carefully.
§ Lord Judd
I am grateful again to the noble Earl. I always find him extremely courteous and disarming in his endeavour and commitment to try to put the Committee's mind at rest. However, I hope he will understand that I still need a good deal more evidence that detailed homework has in fact been done. Issues such as housing; the amount of redundancy pay; the number of raw recruits who will come from civvy street and the number who will be ex-soldiers; and the different recruiting and training costs of both must all be looked at in some detail—and be seen to have been looked at in some detail—before one can be certain about costing. I imagine that we could go on arguing this point for some time, so all that I would say is that I believe there are grounds for considerable anxieties.
I must draw the noble Earl's attention again to that part of the letter which I quoted from Chilwell, in which the Ministry of Defence policeman writing on behalf of his colleagues said:On my own station, Chilwell, a complementing review scheduled for September 1996 was rushed forward to mid-April. This resulted in our being retrospectively relegated on paper only to the required status of armed guards; although our actual employment has not changed at all. This review also increased our complement, again on paper only, from our current total of 20 men to the 26 men, which the MPGS would require".With examples like that being experienced by the people at the coalface, no wonder there is anxiety. I suspect that the noble Earl understands the point far better than he is able to acknowledge from the Dispatch Box.
Perhaps I may make the point again that there is a great deal of concern in this country about the protection of hard-won civil liberties and the rights of citizens. We all understand the difficulties, and I would be the first to emphasise that we live in very difficult times. Society is not as we would like it to be, or as many of us experienced it in our formative years, and it is no good sticking our heads in the sand and pretending otherwise: we live in dangerous times in many respects. We must therefore make provisions which, ideally in terms of liberal democracy, we might not otherwise want to make, but they are necessary to protect society. I am the first to endorse those whenever necessary. When we are doing it, however, it is doubly important to be seen to 10GC have thought through the implications. I am impressed that decent Ministry of Defence professionals (whom, as the Minister of State said in the other place, we all respect) are raising the anxiety that the public's rights may be undermined because very often the people with whom contact is first made in a tricky situation are civilians.
Ministry of Defence Police are subject to normal police requirements and are subject to the Police Complaints Authority; the soldiers will not be. There has been no reference to this by Ministers, and just because of the troubled times and the need to make changes, which ideally we might not want to make, it is extremely important that we do not skate over issues of this kind. For those reasons, I wish to indicate to the noble Earl that of course we will listen, and we always read with great interest and care what he says. We shall read and evaluate very carefully what he says, but we may want to return to this at Report stage.
§ Lord Redesdale
I wish to clarify one point because I know that this is going to come back at the next stage. From what the Minister said, they did not anticipate any cost implications as regards retirements in the transition from the MDP to the MPGS. Perhaps we could come back to this at a later stage, but it seems to me that that might be because the Minister is foreseeing that members of the MDP will downgrade their jobs to become members of the MPGS in the future. I had the impression that this might have been the cost implication about which he was talking.
No. I was referring to our expectation that the formation of the MPGS would not require any compulsory redundancies. However, it is possible that the Government's proposal would allow a number of officers to leave the MDP voluntarily on the same terms as they would have received if they had been made compulsorily redundant. The present expectation is that all the MDP officers displaced by both the MPGS pilot scheme and the main scheme would be covered by natural wastage. However, we have judged it prudent to assume that it may be necessary to offer some voluntary early retirement or severance terms to those displaced by the pilot scheme. So it is that to which I was referring.
§ Lord Judd
Perhaps I may raise one other issue which we may want to examine in some detail at Report stage. It is how far this scheme commends itself equally to all three services, or how far this scheme may have won the acquiescence, I suspect the cautious acquiescence, of the Army; the Air Force and the Navy see little point in it. In the meantime, we will look very carefully at what the Minister said. I repeat that we may need to return to it, but at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ Lord Mayhew
I put down this motion because I just disliked in principle the procedural background and content of Clause 2. It is extraordinary that a scheme 11GC which has the most far-reaching consequences—this is quite original—should be introduced in a dozen lines in the Armed Forces Bill.
I followed as carefully as I could the helpful speech of the noble Earl and yet, at the end of it, I still had the feeling that Government are trying to rush this through without sufficient reference to Parliament. I am disappointed that he could not agree at least to the principle of amending this clause in such a way as to make quite sure that, when this pilot scheme is over, Parliament is consulted as to whether to go ahead. That has not been done. We are told that information will be given to the Defence Committee, but I believe we should go further than that. If the Government want to go ahead with this scheme, to which we have no objection whatever in principle, they should take the opportunity of assuring us of that, once the pilot scheme has been completed. From then on it is for Parliament, and not the Government, to decide whether to proceed with the scheme. I hoped that the noble Earl would be able to give us that assurance, but, as I think he would agree, he did not go that far. I felt hostile from the start to the phrasing and procedure embodied in the clause. It may be necessary to refer to it again at a later stage.
I note with concern what the noble Lord, Lord Mayhew, has said. For my own part, I can see no better way of introducing a proposal such as this than in primary legislation. If we had attempted not to do that, I believe that the complaints would have been equally vociferous. It offers an opportunity for both Houses of Parliament to consider the proposals in some depth and, as the noble Lord will know, the Defence Select Committee in another place did exactly that in considerable detail.
I do not believe that the Government are rushing anything through. As I have said, there will be checks and balances. We are not going headlong into the main scheme; we want to see whether the pilot scheme will work. We will report back to the Defence Committee in another place on whether it has worked, and no doubt we shall be asked some very searching questions at that time. It is, of course, open to your Lordships at any time to put down a Motion for debate on those matters. As always, the Government will listen carefully.
I am sorry that the noble Lord feels as he does, although I am reassured that he has no objection in principle to the idea. I am grateful for that. I shall reflect on what he has said between now and Report, and if I can offer him any more comfort I shall obviously do so.
§ Clause 2 agreed to.
§ Clause 3 [Discharge certificates]:
Lord Judd moved Amendment No. 2:
Page 2, line 22, leave out ("authorised by them") and insert ("acting on their behalf").
The noble Lord said: We are dealing with the significant issue of discharge certificates. I am always rather intrigued about the kind of wording with which we are confronted. A discharge certificate is significant;
it is significant for the forces and it is significant for the individual concerned. When I encounter wording that says that,
particulars … are required to be included in the certificate by directions of the Defence Council or an officer authorised by them",
§ I cannot help dwelling on those words because an officer authorised by them might decide on his own initiative that this was something that he wanted to do. He would not necessarily be thinking all the time that he was doing it on behalf of the Defence Council. Therefore, while in no way challenging what this part of the Bill is about—it is a very essential part of the Bill—could we not have a type of wording that would keep clear all the time that anybody who is acting in this way is acting on behalf of the Defence Council?
§ I should have thought that this was an eminently sensible and reasonable amendment. I know the noble Earl is always open to helpful suggestions and I thought that on this occasion he might accept what I am proposing. I beg to move.
§ 4.15 p.m.
§ Lord Mottistone
Having served in the Admiralty over 30 years ago, when I was taking various actions and making various recommendations, I was always conscious of the fact that I was doing it on behalf of their Lordships, the Lords of the Admiralty, of whom the noble Lord, Lord Mayhew, was the First Lord later—not that I was serving in the Admiralty at that time. There is no doubt in anybody's mind that any officer who is serving in a defence ministry is acting on behalf of his superiors. No doubt it also applies to other ministries although I have never served in one. The point that the noble Lord, Lord Judd, made that somebody might take action on their own account, forgetting that they were acting on behalf of the defence ministry is absolutely incredible. I hope that my noble friend the Minister will not accept the amendment.
Before speaking to the amendment, perhaps I may remind the Committee that I have an interest as a serving officer in the Territorial Army. Last year, I was involved in recruiting for an international aid organisation. Ex-Regular Army, Royal Navy and RAF personnel are a good source of recruits. The difficulty is to determine whether or not they have a good service record. Normally the discharge papers say "Conduct— Exemplary". If you are not familiar with the service paperwork you think you have a very good citizen when, in fact, his conduct in the services could have been less than perfect. I wonder whether the Minister can suggest any way of improving that so that a prospective employer can see the quality of a potential recruit. I appreciate that he cannot be given a confidential report on a soldier, but perhaps we could have some better paperwork when soldiers are discharged from the services.
§ Lord Vivian
I would like to support my noble friend Lord Mottistone. He is perhaps a more recent member of the regular forces, now retired, but I have a current interest as honorary colonel of a regiment, so I am perhaps a little more up to date. A commanding officer 13GC is responsible for signing discharge papers. When one has in mind the fact the individual being discharged may be affected by his discharge book, one treats the matter with extreme diligence. I do not believe that at any time in my career I have ever thought that I was acting on my own; I was always authorised by the Defence Council.
§ Viscount Slim
I would also like to say, as someone who has spent some time in the military, that I cannot recall ever having acted on my own. I find the remarks of the noble Lord, Lord Judd, quite inconsistent with the loyalty of an officer. The fact that an officer is authorised to act means that he is very carefully briefed. He is generally briefed in writing or by some more modern means today. I take what was said as a slight slur on officers of all three of Her Majesty's services. It is perhaps being a little semantic, but I take rather an exception on this occasion to what the noble Lord, Lord Judd, said. I support the last two noble Lords who have spoken.
§ Lord Judd
The last thing that I would want to do is to cast slurs on officers, having had the honour of holding the Queen's Commission myself. With respect, I personally would always like to take pride in the fact that I was taking action—that I was not only authorised to take action, but that people sufficiently trusted me and respected me to feel and to know that I was acting on behalf of the Defence Council. That seems to me to underwrite the significance, honour and integrity of the officer concerned. Therefore, I do not understand the misapprehension— if I may put it that way— of some noble Lords although I greatly respect their experience.
It is not just a matter of what the officer concerned may know; it is not even just a matter of what the service concerned may know or of what the Defence Council may know; it is also a matter of the perception of the general public because presumably the certificate is there to be used by people who have not been part of the military culture. I should have thought that if they knew that the certificate had been signed on behalf of the Defence Council and not just, as might well happen elsewhere in civilian life, by a line manager because he had the authorisation, that would have tremendously enhanced significance for those reading the document.
The amendment is designed to enhance and recognise the status of the officer and the significance of the document and also to reassure the public. I am very sorry but I do not think the noble Lords who have spoken could have read exactly what is being proposed. I cannot understand how they have drawn the deduction they have.
I fully appreciate that the noble Lord, Lord Judd, intends to be helpful in tabling these amendments. Having said that, I am not sure that I have warmed to them particularly. The importance of discharge certificates lies in enabling men and women who have left the Armed Forces to show prospective employers and others that they have been legally discharged from the forces. The present legislation requires that the information to be included in the certificates shall be prescribed in Defence Council regulations. Clause 3 alters that by specifying the 14GC minimum details—the core particulars, in other words—which the services are required to include in the certificate. It also increases the flexibility to add to or change the other information included, without requiring changes in primary legislation or regulations, which may well be cumbersome to bring about. The flexibility introduced by the change could make more information available, as the noble Earl, Lord Attlee, has suggested might be desirable. It could do so if it were clear that it would help men and women leaving the services in finding suitable employment.
Discharge certificates are important in that context but what the Committee should bear in mind is that in previous legislation the Defence Council had to prescribe the contents of these certificates. All we have done is to ensure that the major items are now to be laid down in legislation, and it is only the less important matters which the clause gives flexibility to incorporate or remove; for example, what particulars are to be given about somebody's conduct or matters of that kind.
Although we consider this to be a useful change we have to keep it in perspective. It is essentially a technical change, having come about as a result of a review of the regulations about enlistment and discharge, and the main result of that review is that the proposed rationalisation of regulations in Clause 4 looks to be a useful one. When Clause 4 is brought into force all the regulations will in future be subject to parliamentary scrutiny except for this matter, where we consider that the sensible way to proceed is as provided for in the clause.
I cannot agree with the suggestion of the noble Lord, Lord Judd. We do not see any merit in making the alterations to the clause that he has proposed. As far as we can see, those alterations would simply change the wording but would not have much practical effect on the clause. Before an officer could act on behalf of the Defence Council in exercising the statutory power conferred on it, he would need in any event to be authorised by it and know that he had been authorised by it. The noble Lord's amendment would be change for change's sake.
In the light of what I have said, I wonder whether the noble Lord feels a little more relaxed about leaving the wording of the Bill as it is.
§ Lord Judd
I of course find the noble Earl's remarks helpful. Perhaps I may make the observation that I believe some people out there in civvy street do not always understand the intricacies of the thinking in government circles in the Ministry of Defence, or indeed, as I said earlier, in the military culture. It is unfortunate that there should be in the Bill an implication that something may on occasion be done by the Defence Council, or by somebody authorised by the Defence Council, because inevitably from time to time people are going to ask why it was not actually done by the Defence Council and what is the difference and the significance of it. I am sure it is not intended that there should be a difference and a significance but the situation I have described could arise. I am the last person to want change for change's sake. That is not a role which attracts me. But when one is considering 15GC legislation to clarify situations it is just as well to make sure that any possible doubts have been looked at and dealt with.
I listened to what the noble Earl said. I liked what I heard. I shall go away and consider his remarks but at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 3 not moved.]
§ Clause 3 agreed to.
§ Clauses 4 and 5 agreed to.
Lord Mayhew1 moved Amendment No. 4:
After Clause 5, insert the following new clause—(" .—(1) In each of the 1955 Acts—
(2) In the 1957 Act—
§ The noble Lord said: This subject of the death penalty in the defence forces has been discussed many times in both Houses of Parliament over many years. I do not propose to go through the familiar arguments yet again. However, as the years go by the case for retention becomes weaker and weaker. It is now 50 years since the penalty was imposed. There have been wars in the Falklands, the Gulf and Korea without, so far as I know, it being relevant at all.
§ The time is rapidly coming for the Government at long last to accept what I believe to be logical and inevitable. The death penalty has been abolished by most of our NATO allies; some took the step many years ago. The likelihood of the offences concerned—of mutiny, of deliberate assistance to the enemy—being committed has diminished and continues to do so. The likelihood of an execution being decided on and carried out has accordingly become less. Its value as a deterrent, if it ever was a deterrent—we have had that argument many times— becomes less and less substantial. It is a relic. It is irrelevant to our new professional army and to the age in which we live. The time has come to wind it up.16GC
§ To most people the words "armed forces" and "death penalty" immediately bring to mind the terrible abuse, in many cases, of the death sentence in the First World War. That is what people think of, and it does not do the Armed Forces much good. I have just finished reading a remarkable new book about the First World War called "The Bickersteth Diaries". It consists of the letters home of two courageous and civilised officers, one of them a chaplain, who experienced four years of trench warfare. What this gallant chaplain found most stressful, amid all the tasks of comforting the wounded and the dying and picking up the remains of bodies for burial, was sharing the last night with shell-shocked young soldiers before they faced a firing squad.
§ Those times are long past and, of course, the death penalty is a much stricter affair today. It is more narrowly defined but it is still there, for some reason, unused for 50 years. It does not do the image of the Armed Forces any good. It does not feature in the Government's recruiting propaganda. I would be very surprised if it did.
§ The time is rapidly coming when we should get ourselves up to date and abolish the death penalty for the services.
§ 4.30 p.m.
The Earl of Balfour
I am concerned that in the Navy, and even in the Merchant Navy to some extent, there could be a risk of mutiny. That is the only thing I want to talk about. Mutiny is a very serious offence. It has not taken place, I am glad to say, for a very long time. The noble Lord, Lord Mayhew, gave the example of the First World War. I feel that there a few of the officers should perhaps have been put up against a wall and shot. I feel that in the case of mutiny the death penalty is the ultimate sentence which I feel should still remain on the statute book.
Let us suppose that a mutiny takes place after the death sentence has been abolished and that the forces come in and re-take that ship. If they knew, with the sort of murder that has very often taken place with a mutiny, that these people, the mutineers, were going to get away with a life sentence of prison, I have a feeling that the officers re-capturing that ship would make certain that none of them lived to tell the tale. I would not like to see that, for this reason: for whatever crime anyone has ever committed, at least I want to make certain that that person stands a fair trial. I feel that if we do away with the death sentence totally, that might not be the case.
§ Lord Williams of Mostyn
I support this amendment just on the basis of principle. I would suggest that in any legal, judicial system—and of course I fully appreciate that we are speaking within a particular context—it is unwise to have a penalty which has fallen, as the noble Lord, Lord Mayhew, said, into complete disuse after 50 years. There is no death penalty for murder in this country.
A person who many of us would believe did infinitely greater harm to the security interests of this country and therefore to jeopardise the interests of those serving 17GC Her Majesty in one form or another was George Blake. There was no death penalty for him: the sentence was 42 years. One is also contemplating the imposition of a death sentence without the normal safeguard of a trial by jury. On those bases, not least the fundamental underpinning of which the noble Lord, Lord Mayhew, spoke, that a penalty not used becomes a penalty without value, I beg leave to support his amendment.
§ Lord Redesdale
I too support this amendment. I do believe that the death penalty is a relic, even for mutiny. The noble Lord, Lord Constantine of Stanmore, raised the issue of mutiny on ships, which would lead to the need for keeping the death penalty. I do not have a history book with me, however, but it is some time in the distant past since a mutiny on ship has taken place. The conditions that bring about a mutiny should be looked at. In today's very well trained and very well motivated armed forces, a mutiny will not take place for no reason whatever. Mutiny usually takes place on ships due to the very harsh conditions that are suffered, or because the soldiers themselves feel there is a form of injustice. Therefore, if that injustice has taken place, there might be mitigating circumstances.
We live in a society where the death penalty is not seen to be in any way, shape or form acceptable. Even for the most heinous of crimes the death penalty has not been implemented in the recent past. I believe that that should remain so. I do not believe that, under any circumstances in the society in which we live, we should have the death penalty. As the Army, in its conditions of service, reflects the society it serves, perhaps the death penalty should be removed. I support the amendment.
With his proposed new clause, the noble Lord, Lord Mayhew, has raised a subject which engages the consciences of all of us. It is certainly not a matter which many of us can readily consider dispassionately, yet I suggest that we need to attempt to do so, even though we are contemplating the possible imposition of the most dreadful of punishments in what may well be the most dreadful of circumstances when the safety of our Armed Forces or even of the nation itself may be in peril.
As the new clause indicates, the death penalty is retained under the service discipline Acts as a non-mandatory sentence for five offences where these have been committed with an intent to assist the enemy, or the taking or not taking of action in connection with operations against an enemy. The offences involved would be likely not only to jeopardise national security, but also to put the lives of other servicemen and women at direct risk. The nearest civil criminal offence of this nature would be an act of treason for which, of course, the death penalty is still mandatory.
When men and women join the Armed Forces of this country, they subject themselves to a body of law which is designed to provide for the effectiveness of the service as a fighting force through its disciplinary system. That, of course, is what the Bill is all about. Indeed, much of the Bill is specifically concerned with bringing service law and procedures into line with civilian ones in accordance with our standing policy to do that where it is sensible and practical to do so.
18GC However, there are many instances where it is not possible or sensible for service law to be identical to civil law. The offences we are talking about here are a case in point: they are solely and specifically service offences. Service law has to be framed to respond to the circumstances of service life worldwide, in peace and war, and including in armed operations against an enemy. In any case, the death penalty has been retained in the civil criminal law, notably for treason, as I have just mentioned, but also for piracy with violence.
The services are firmly of the view that the death penalty should be retained for the five service offences for which it remains a sentencing option. I must stress to noble Lords the important point about all five offences: there must be an enemy. My noble friend Lord Balfour referred to the fact that mutiny at sea is one of the offences which can carry the death penalty. He is perfectly right in that, but unless there is an enemy, the death penalty cannot be passed under the service discipline Acts.
Accordingly, Ministers have given undertakings that the penalty, if passed by a court martial, would not be carried out for offences committed in peacetime. That was reiterated by my right honourable friend, the then Minister of State for the Armed Forces, Sir Archibald Hamilton, when the matter was debated during the passage of the previous Armed Forces Bill. In peacetime, we would use the system of post-trial review to ensure that any sentence of death passed by a court martial was commuted on review.
I know that we all have our views, often strongly held, about the appropriateness or otherwise of the death penalty as a sentence available to the civil courts for offences such as murder. When the retention of the death penalty was debated during the passage of the previous Armed Forces Bill, one noble Lord acknowledged that he found it an issue which was very difficult to decide, and he went on to say:There are reasonable arguments in favour of retaining the death penalty in military law. Noble Lords who have seen active service will know that you have problems in war to which there is no equivalent in civilian life. Extraordinary problems of discipline arise which, it can be argued, call for the threat of extraordinary punishment".I draw those remarks to the Committee's attention not for the purpose of irritating the noble Lord, Lord Mayhew, by quoting what he said out of context, because he went on to speak in favour of the abolition of the death penalty in the services. I do so because the observations he made seem particularly apposite. This is a difficult issue. It is complicated by the fervent hope of all of us that neither the Armed Forces nor any individual should find themselves in the extreme and awful circumstances about which we are necessarily speculating.
Perhaps I may make one point in response to something the noble Lord, Lord Mayhew, said. He said that the death penalty had not been used for 50 years and that was a good enough reason in itself to consider getting rid of it. I do not think it is a persuasive argument that just because the death penalty has not been carried out for a service offence for a long time it should be abolished. That is not persuasive any more 19GC than an argument would hold water in relation to the penalty for treason. The Government believe that it is right to maintain the possibility of the death penalty as the ultimate sanction for the service offences to which it applies.
I believe we must take due account of the judgment of those who would have the responsibility for maintaining order should the extraordinary problems of discipline to which the noble Lord, Lord Mayhew, referred five years ago ever arise. As I have already mentioned, the services firmly believe that the death penalty should be retained. On that basis, I would urge the Committee to reject the amendment.
§ Lord Judd
I wish briefly to intervene to associate myself most strongly with the observations of my noble friend Lord Williams. It seems to me that the issue which we have always to keep in mind when considering this crucially important issue is that the armed services are there to defend what makes Britain a democracy worth living in. Faced with this issue in all its manifestations in our national and civilian life, Parliament has decided that the death penalty is inappropriate and indeed wrong. While of course we must respect those who carry the tremendous responsibility of leadership in the armed services on our behalf, it is unfortunate that on this issue the armed services do not reflect what has become seen as appropriate in civil life, not least in the context of civil terrorism or in the context of what might happen in a disciplined civil service— the police, the fire service or indeed in a civilian airliner or a ship at sea. In those contexts there is food for thought. I hope that the noble Earl will not rush into absolute outright rejection of the points that the noble Lord, Lord Mayhew, has so vigorously and rightly made in his intervention.
While it is of great importance that we should take seriously the responsibility and views of those we place in uniformed leadership of our armed services, it is nevertheless we who have to decide whether or not the death penalty shall apply—we in Parliament. That is not a responsibility we can pass on to others. I therefore associate myself with all that has been said by the noble Lord, Lord Mayhew, and indeed by my noble friend Lord Williams.
I understand the points that the noble Lord, Lord Judd, has just made, and, as I said, these are matters which give rise to very strong feelings on both sides. I believe that at least some of the concerns that the noble Lord has expressed are reflected in the revised procedures in the Bill relating to review and appeal.
The Bill removes the current provisions which could allow executions to be carried out without review or appeal if the confirming officer under the present system judged that to be essential for the safety of the force. In future, as the Bill proposes, any death sentence would have to be approved by the Defence Council itself, which would review the case automatically, whether or not the accused had put in a petition. There is also a new right to appeal purely against the sentence, and the sentence would be stayed pending any appeal or the expiry of the time limit for making an appeal.
20GC The Bill contains all sorts of other safeguards. I believe that that is not only a major step forward but that it should also give comfort to those who, like the noble Lord, are fearful that a death sentence might be carried out in times of extreme stress without the individual concerned having any right of review or appeal. That is not the case under the Bill.
§ Lord Williams of Mostyn
Before the Minister sits down, may I deal with two specific matters? I am most grateful for the clarification that he has given. First, the noble Earl said specifically that an undertaking had been given in another place that no death sentence would be carried out in peacetime. That inevitably means that in peacetime the Army's judicial process will have aspects of complete artificiality—I do not want to use the word "charade" in such a serious context—because according to what the Minister has just told us all those taking part, even if a sentence of death were imposed, would know that there would be an automatic striking down of the sentence.
Secondly, when the noble Earl speaks of "peacetime", does he mean that in the rather technical sense—that is, if there is no formal declaration of war, no sentence of death will be carried out?
To take the second point first, it is often said that as war is rarely officially declared nowadays, the dividing line between wartime and peacetime is insufficiently distinct for purposes such as this. However, I believe that most of us know the difference between war and peace, and the government of the day would obviously need to apply a practical approach to what circumstances constituted "peace" and what constituted "war". The noble Lord has made a valid point, but it is a slightly academic one in the circumstances.
The noble Lord's first point related to the undertaking given by my right honourable friend Sir Archibald Hamilton five years ago. I do not think that that undertaking gives rise to any artificiality. It is, however, the case that the post-trial review would automatically strike out a sentence of death in time of peace. I do not believe that that devalues the procedure of the court martial in any way—rather the opposite. In fact, the existence of the death sentence will underline the gravity of the offence concerned. It is a matter of the procedure that we have undertaken to adopt. Given that cases of this kind will be extremely rare in any event, I hope that the noble Lord will not consider that the point that he has made will in practice give rise to any unease.
§ Lord Williams of Mostyn
All procedures depend on specifics. I asked my question expecting the unambiguous answer that peacetime means the absence of the declaration of war. What is to be the position, for instance, of Her Majesty's forces who serve in Bosnia, or soldiers aboard one of Her Majesty's vessels who are in circumstances that people would not describe as "peaceful" but where there has been no declaration of war? If there is to be further consideration of the true ambit and nature of Sir Archibald Hamilton's undertaking, I am content to receive a letter from the 21GC Minister, if that is of assistance, but I do not believe that something as important as this can just be brushed aside on the basis that we all know what "peacetime" is.
How would the Minister describe Operation Granby in the Gulf and Operation Corporate in the Falklands? Were they peace or war?
It is not only for me to decide such things. It would be for Ministers as a whole and no doubt for the Defence Council as well. I believe that the judgment of the man in the street would be that the Gulf conflict was a war, as indeed was the conflict in the Falklands.
§ Lord Kennet
I am sorry to prolong this debate. It seems to me that the Minister has just installed the man in the street in a judicial position involving life and death. If the existence or not of war is to be left to the judgment of the man in the street, what else may not be left to the judgment of the man in the street? Should we not abolish the penal code forthwith? I am not being flippant. The Falklands war was never declared; that is why it was called the Falklands conflict throughout. There were situations that could easily have involved mutiny, and perhaps did. I need go no further. All Members of the Committee will remember. If a soldier had disobeyed orders in such a way as to endanger his comrades in that conflict, according to what we have just been told by the Minister, he could not have suffered the death penalty.
I mentioned the man in the street merely to make a point. To revert to what the noble Lord, Lord Judd, said, the Armed Forces are defending the values of our democracy and the values of ordinary people. It would be extraordinary to the ordinary man if the Defence Council were to find that a conflict such as the Gulf conflict was not a full-scale war. But we are in the realms of hypothesis and I do not accept the noble Lord's contention that ordinary language is somehow invalid.
I shall gladly write to the noble Lord, having reflected on these exchanges, because they are clearly matters of importance. I still believe that the arguments that I advanced for separating civil law from military law in this matter are not only valid but extremely compelling. I shall need quite a lot more persuading by Members of the Committee if I am to be deflected from my proposed course.
The Earl of Clanwillian
Can the Minister say whether the articles of war were read to the Armed Forces at the beginning of the Falklands incident or the Bosnia operation? If articles of war are read, presumably the Armed Forces are in a state of war.
I cannot answer my noble friend on that point, but I shall certainly look into it because it is a very valid question.
§ Viscount Slim
I get the slight impression that some noble Lords feel that mutiny is rather like a strike. There is a grave difference between mutiny and going on strike. Mutiny puts lives at risk. It puts a strategy or a 22GC tactical battle at risk. It puts the lives of many people at risk and it damages a nation, or can do, with the consequence of a loss of a battle or a loss of a particular tactical site or space of a battle. Also, going across to the enemy is not just a matter of changing your political colour or your political allegiance. Giving information to an enemy is treason, whatever you feel about it.
I have great sympathy with the noble who has seen much action and understands these things. I wonder whether we could do more than say that "life" means 15 years but you are out in seven; I wonder if we could do something that is more in line with what the noble Lord said about a sentence of 42 years. I am trying to be helpful here.
Although the noble Lord, Lord Judd, is quite right that Parliament makes the laws and the rules, Parliament also sometimes makes mistakes. I believe that we should listen to the wishes and inclinations of the chiefs of the defence staff on this matter. I see a middle way in all of this, and I urge reflection. At present, I have to side with the Minister because, with great respect to the discussion that we have had so far, not enough thought has been given to the military consequences. I would therefore urge some deep reflection. I believe that there is a way out of this, a middle way, and I hope I hear it later.
§ Lord Mottistone
Speaking from a naval point of view, I entirely agree with what has just been said.
§ Lord Mayhew
I am most grateful to those who have contributed to this discussion and I am most grateful to the noble Earl for his explanation. Almost everything that has been said, especially by the noble Earl, about the safeguards against injustice and about the narrowness of the offences for which capital punishment is relevant has proved my point—that, in fact, capital punishment is non-operative in the forces. It goes without saying that it has not been used for 50 years—and everything that the noble Earl said suggested that it was infinitely unlikely ever to be used again, both because of the narrowness of the definition of the offence and because of the many, many safeguards rightly written in to prevent its abuse.
The noble Earl also mentioned the strong feelings on both sides of this debate. I examined my own and I found that my feelings are not as strong as they used to be because the question now seems academic. I do not fear that the death penalty will be imposed in my lifetime on any single serviceman or servicewoman. The tone of the debate is not like it used to be 10, 20 or 30 years ago—I can remember debates about capital punishment in this House or the other place of 40 years past—and that is because the penalty has become a relic. We have to decide whether it is a relic worth preserving. If it is a fact that the armed services wish to retain it, that is an enormously important point. I entirely agree that there are disciplinary problems facing the services, which we do not experience in civilian life. However, whether the death penalty is a deterrent to mutiny or anything else is another matter.
The noble Viscount flattered me by saying I had had great experience of action, but nothing could be further from the truth. I have had extremely limited experience 23GC of action, but I recall a despatch rider coming to a forward headquarters with a message at some risk and arguing against the order to return with the answer. It is when you get such a situation that you think hard about discipline and deterrents; and if I think hard about that man's mind at that time, I do not believe in his mind he had a picture of a firing squad. If he did, he might well calculate that the chance of being tried, sentenced and shot was a good bet compared with the ride back the way he had come. I do not believe that this deterrent thing is really practical.
I wish to thank the noble Earl and others who have contributed. I sense as the years go by that feelings are less strong and more practical as to what is good for the armed services and what is good for their image. I believe it is time to bring this little matter up to date. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5 p.m.
§ Clauses 6 to 10 agreed to.
§ Clause 11 [Fingerprinting of certain offenders]:
Lord Judd moved Amendment No. 5:
Page 6, line 23, leave out ("may") and insert ("shall").
§ The noble Lord said: I beg leave to move the amendment standing in my name and, if it is convenient to noble Lords, I would also like to speak to Amendment No. 6. I do not intend to move Amendments Nos. 7 and 8; indeed I am not quite sure why they are on the Marshalled List. Two days ago, when I noticed that they were on the list, I sent a message asking how that had happened, but the message has obviously not reached those with responsibility, and I take full responsibility myself for any confusion on this point.
§ I make my intervention here with some trepidation after the strictures of the noble Earl about change for change's sake on a previous amendment. I should like to take the opportunity of this rather delightful Committee system that we have in the Moses Room to probe the thinking behind the wording, why a particular form of words has been chosen, and why another form of words might not be better. We obviously want to get the best possible wording and on this matter we are dealing with quite a serious issue: we are dealing with fingerprinting without consent. I am intrigued to know, and hence the tabling of this amendment, why we have these words "may not". I quite understand that "may not" may be used in legal discussion at times in a particular way, but that does not mean that the word "may" has the same force as "shall". Hence, I wonder whether the noble Earl could tell us the rationale for using the word "may" here rather than the word "shall".
§ Similarly, "reasonable force" is a very subjective consideration. I must say in all honesty to noble Lords that the longer I have looked at the various formulae I have deployed, not least the formulae of my own wording here, I see that there are always problems of subjectivity. But we want to minimise the degree of subjectivity. I believe that it would be helpful if the 24GC Minister could perhaps justify the use of the wording used here, rather than wording which might have tied it all up a little more tightly.
The noble Lord has helpfully outlined the purpose behind these two amendments; nevertheless, I must say that the first amendment seems a little obscure. The key word in line 23 seems to me to be the word "not", so that the powers provided for in the clause "may not" be exercised in the circumstances described. The Committee may consider that this makes the question of whether we talk about "may not" or "shall not" rather academic. That is certainly the view of our lawyers at any rate, and I do not know that there is any difference in the force of those two, but "may not" certainly is the more normal way of phrasing it.
The other amendment is concerned with the level of force that may be used to take fingerprints if the convicted person refuses to co-operate with the process. The clause provides for the service police to use reasonable force if necessary. The main effect of the amendment is to replace this with "the minimum necessary force". There is not likely to be a difference in the circumstances of fingerprinting for the record between "reasonable force" and "minimum necessary force". Military policemen operate on the following basis:The basic principle is that a person must not use more force to achieve his lawful objective than is or he has reasonable grounds for believing to be absolutely necessary. This applies to fingerprinting as to any other activities where the use of force may he required".We also need to be consistent here. The clause is, in effect, extending or replicating the relevant provisions of the Police and Criminal Evidence Act 1984 to service law and the service police. The 1984 Act, known as PACE, allows the use of reasonable force if necessary to obtain fingerprints. Parts of PACE procedure are already applied to fingerprinting activity by the service police. They already have powers to take fingerprints without consent during the investigation of an offence by using reasonable force. Clause 11 extends these powers to allow fingerprinting for the record after a conviction. I would suggest to the Committee that the provisions governing the use of these powers need to be as consistent as possible, both with the civilian PACE powers and the powers already exercisable by the service police. Two separate tests might confuse the courts and lead them to look for nuances and to draw distinctions which have not been intended. This points to there being powers to use reasonable force where necessary particularly since, as I have already suggested, the distinction between "reasonable" and "minimum necessary" is likely in these circumstances to be academic.
Therefore, I hope the noble Lord and the Committee will accept my assurances that the proposed amendments, while no doubt put forward with the most generous of libertarian motives, would not really achieve anything of the kind.
§ Lord Judd
I am grateful to the noble Earl and I shall accept what he said. But in doing so, perhaps I may draw his attention to the fact that in what he quoted from the manual of the military police the word "must" was used which I find much more acceptable than "may" which always has the element of "perhaps" about it. However, I am not a lawyer. I am just looking at it as a layman.
I understand the spirit of what the Minister is saying. I take what he says very seriously. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (The Viscount of Oxfuird)
If Amendment No. 6 is agreed to, I cannot call Amendments Nos. 7 and 8.
§ [Amendments Nos. 6 to 8 not moved.]
§ On Question, Whether Clause 11 shall stand part of the Bill?
§ Lord Williams of Mostyn
For this afternoon's purposes, I am a conscripted private soldier in the army of my noble friend Lord Judd. There are five amendments down—all in identical terms. Anything I say will be extremely short because the amendments are simply the basis of genuine inquiry. I ought to say, now that my noble friend has departed, that I believe the explanation given by the Minister in respect of my noble friend's last two amendments was entirely correct.
I have two questions. What is the purpose of having this power at all? Can it be sensibly used? Under Clause 11(2)(b) the power may not be used,after the end of the period of three months beginning with the date of the conviction".Does that mean that if an appeal process has not been concluded within that three-month period the power lapses? Again, I do not want to take a nitpicking question which may more usefully be answered by letter but it is on this sort of occasion that one needs to test the need for the power and to see whether it is workable in practice.
There is one other relatively minor point. In Clause 11(4) "disciplinary proceedings" are subject to a definition. I shall not read it; it starts at line 35 and continues to line 40. If one goes back to page 3 of the Bill, Clause 6(3) defines "service disciplinary proceedings" in different phraseology. As the noble Earl the Minister rightly sees consistency as being important in matters of this sort, I wonder whether there is a reasonable explanation for the difference. I would be grateful if the Minister could assist by indicating what is the need for this power. There may well be good reason why, in his panoramic introduction at Second Reading, the Minister did not have the chance to deal with every such matter. This is simply a short and genuine enquiry.
I am grateful to the noble Lord. I shall gladly say a few words by way of explanation of the clause. The Government believe that the change 26GC represented by Clause 11 is a small but important step in the direction of ensuring that, where appropriate, service police have powers corresponding to those of their civilian counterparts. At the moment the service police essentially have powers only to take fingerprints without consent in connection with the investigation of an offence, or if persons are held in arrest under the service discipline Acts; that is to say, before a trial. The powers are similar to those of the civilian police. However, it is not always necessary to take fingerprints before a trial. On the other hand, fingerprints may be needed, or may be useful later after a conviction, for recording purposes. Service police, unlike their civilian counterparts, do not have the powers to take such prints without consent. Clause 11 provides the power for them to do so.
The recording I am talking about is on a similar basis to the recording of convictions by the civilian courts. Certain offences dealt with in service proceedings are reported to the national identification service in the interests of comprehensive criminal record. The NIS will only accept records of offences where these are accompanied by a set of fingerprints. As I have sought to explain, the clause will enable us to take such fingerprints. Without the clause it would be necessary to take fingerprints pre-conviction on a fairly indiscriminate basis just in case they might be needed afterwards for the NIS record. We would regard that as wasteful, particularly as we would be obliged to destroy any such prints in the event of an acquittal. The clause will ensure that fingerprints are taken only where absolutely necessary. It puts service procedures on the same footing as civilian ones. It is a sensible measure which deserves the support of the Committee.
The noble Lord asked about the part of the clause referring to the powers lapsing after three months. Of course we would not wait for the appeal process to run its course before taking prints, and for that reason the lapsing of the power would not pose any practical problems. The wording is intended to ensure that it is a power that is properly used in connection with the offence for which the person has been convicted.
§ Lord Williams of Mostyn
I am most grateful. The definition matter can wait; I criticise myself for what is a nitpicking question. I am obliged to the noble Earl the Minister for his explanation. I find it entirely satisfactory that there should be a correspondence between the civil and military regimes in terms of fingerprints.
I should like to raise one matter, however. If, as the noble Earl, said, the fingerprint-taking process would not await an appeal, what happens if an appeal is successful. Are the fingerprints then destroyed?
§ Lord Williams of Mostyn
I am most grateful. Upon that basis—and I reiterate my genuine gratitude to the Minister for dealing with these matters so helpfully—I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.27GC
§ 5.15 p.m.
§ Clause 11 agreed to.
§ Clause 12 agreed to.
§ On Question, Whether Clause 13 shall stand part of the Bill?
§ Lord Williams of Mostyn
The clause raises the same question as I raised previously, and I would like an explanation.
The Rehabilitation of Offenders Act 1974 already lists the service offences and punishments which determine when rehabilitation can apply. Paradoxically, offences and punishments less serious than those listed in the Act can never be rehabilitated. For example, offenders can be rehabilitated if their punishment is detention for three months or more, but offenders who receive lesser periods of detention may not be rehabilitated.
The clause is intended to end this anomaly and also to make sure that, in doing so, we do not create a further anomaly. This would be that one or two minor convictions could have the effect of significantly extending the period of rehabilitation of someone who had already been convicted of a more serious rehabilitable offence.
To remove this clause will perpetuate the present unfairness. I cannot believe that noble Lords would wish to do that and I hope that what I have said will have put the clause into context and reassure the noble Lord on any uncertainty that he may have had.
§ Clause 13 agreed to.
§ Clause 14 agreed to.
§ On Question, Whether Clause 15 shall stand part of the Bill?
Clause 15 is part of the package of reforms to post-court martial procedures. As I know the noble Lord, Lord Williams, realises, it is closely linked with certain other clauses, particularly Clause 16.
At present, court martial findings in the Army and Royal Air Force are subject to confirmation or revision by the confirming officer. Clause 15 ends this requirement so that findings will have immediate effect, as is the case in the Royal Navy already, where it works perfectly satisfactorily.
Imitation of the Royal Navy apart, there are two main reasons for abolition of the confirmation process. The first is that confirmation has generally been the responsibility of the convening officer. As the Committee will be aware, the role of the convening officer is itself being abolished as part of the wider court martial reforms included in the Bill, with the purpose of reducing the potential for the chain of command to exercise undue influence over court martial proceedings.
28GC Secondly, the abolition of confirmation will enable us to focus internal review of court martial findings and sentences on the authoritative single stage review proposed in Clause 16 and Schedule 5. The present arrangements requiring confirmation and allowing multi-level reviews of court martial findings are complicated and they are cumbersome as well. The new procedure should be capable of being more readily understood by everybody. I hope the Committee will endorse it.
§ Lord Williams of Mostyn
Again I am grateful. It seems to me that the Minister has in fact dealt with the identical question that I would have put on Clause 16. I shall not oppose the Question that Clause 15 stand part of the Bill.
§ Clause 15 agreed to.
§ Clause 16 agreed to.
§ Clause 17 [Appeals against sentence]:
§ On Question, Whether Clause 17 shall stand part of the Bill?
§ Lord Williams of Mostyn
I wonder if I might ask the Minister for similar assistance. As I understand it, Clause 17 is intended to give a further power; namely, the power to reconsider the sentence rather than simply to reconsider the conviction. If that is the thrust of Clause 17, as I believe it to be, then we welcome that.
I am glad to have this opportunity to say a few words in explanation of Clause 17. It represents a major and positive change in extending the right of appeal for servicemen and women. As the Committee may be aware, the Courts-Martial Appeal Court consists of senior civilian judges who might be judges in the civilian Court of Appeal. At present, it can deal with appeals from servicemen and women against court martial convictions, but not against their sentences. The clause will enable the court to hear appeals against a sentence also. The reason for this important change is simply that, having conducted a review of the matter, we concluded that the present block on appeals against sentence was becoming increasingly difficult to justify because it is an unnecessary limitation on the rights of servicemen and women. It is as straightforward as that, and I commend the change unreservedly to the Committee as one deserving their support.
§ Lord Williams of Mostyn
I am most obliged for that explanation. I know there has been quite a body of opinion within the armed services that they were perhaps subject to unfair treatment in the way that the Minister indicated, and that their rights in respect of sentencing might not have been equivalent had they been in civilian life at the time of their charge and trial.
I would like to reiterate our gratitude for the way in which the Minister approached these matters. They are not simple and I am bound to say that a great deal of thought has been put into these reforms, which I believe to be valid and sustainable reforms. I have now reached the end of my conscription in the army of my noble 29GC friend Lord Judd and I simply want to apply for my honourable discharge and to thank the Minister not least for the tone and courtesy of his replies.
§ Lord Mayhew
Perhaps I may add on behalf of my own party that we too very much welcome these reforms. We consider them, to use the best possible adjective, to be "liberal".
§ Lord Williams of Mostyn
I do not wish to intrude into private grief and therefore I shall not oppose the Question.
§ Clause 17 agreed to.
§ Clauses 18 to 20 agreed to.
§ Clause 21 [Sex discrimination: Great Britain]:
§ On Question, Whether Clause 21 shall stand part of the Bill?
§ Lord Judd
Before I speak in this clause stand part debate, perhaps I may say how glad I am to have had the co-operation and, indeed, the support and tuition of my noble friend Lord Williams. His discharge is exemplary—and on behalf of the Defence Council.
The issues raised in Clause 21 have implications for Clauses 22 to 27 and, if I may, with the leave of the Committee, I shall try to take a strategic look at them as a whole within the context of speaking on the clause-stand-part debate on Clause 21.
For reasons which I shall explain when we come to it, I do ward to dwell on Clause 23, hence the specific amendment to that clause. By the convention of which we have been reminded this afternoon and which we are following, amendments or clause-stand-part debates are not taken to a vote in this Committee. Our discussions give us an opportunity to probe the Government's thinking and we hope where possible to win some concessions. The voting, if there is to be voting, will be at the Report stage. I am sure the noble Earl will be the first to recognise that there is a good deal of concern about the issues covered in this cluster of clauses dealing with tribunals. I therefore give notice that it is quite possible that noble Lords, including the Opposition, will want to return to these clauses when we reach Report stage with more specific amendments in the light of what the Minister has said today.
The Bill introduces a two-stage process for dealing with complaints in the realm of sex and race discrimination and for dealing with complaints in the realm of equal pay and employment rights. The principle is that, while members of the Armed Forces may present their cases to the appropriate tribunal, they may do so only if they have first made a complaint to an officer under the relevant service redress procedures and submitted that complaint to the Defence Council under those procedures and if the Defence Council has then made a determination in respect of the complaint. It is being indicated that a six-month time limit will apply for application to an industrial tribunal, and regulations are likely to specify the maximum time limit for a complaint under the internal redress procedures, which it seems will not be less than three months from the date of the incident.
30GC As recommended by the Select Committee in the other place, regulations are to specify the circumstances in which a complainant will be able to present his or her case to an industrial tribunal before the Defence Council has made a determination. Draft regulations have yet to become available and there is therefore at this stage considerable public interest about exactly what provisions will be made. It is anticipated that the scope to pursue a complaint under both procedures will not be wide.
The Bill proposes a diminution of rights under the Sex Discrimination Act, under which, as things stand, complaints may be made directly to an industrial tribunal. It would be helpful to hear from the noble Earl the evidence which led to this proposed change.
In 1995 the Government published a Green Paper on resolving employment rights disputes, Options for Reform. Following consultation on a range of possible reforms, the Government have rejected the proposal that all employees should be required to utilise an internal procedure before making application to an industrial tribunal.
It is only in the case of service personnel that the proposal is to apply. All other employees, including serving officers in the police and civilian employees working alongside service personnel, are to continue to be able to apply to an industrial tribunal without statutory pre-condition.
The Ministry of Defence argued to the Select Committee in the other place that,service and employment in the Armed Forces is different from employment anywhere else because of the demands which can he made on people … the requirement to obey orders, one cannot just walk off the job … important for the individual service person, but also important for the chain of command. Because of the particular nature of the Armed Forces, the chain of command needs to he aware of things that may he going wrong in terms of discrimination or harassment and so on in order that it can put those things right as soon as possible because those things can have a debilitating effect on unit cohesion and therefore operational effectiveness … It is particularly important to the command chain to get a feel for what is going on and what the Servicemen are thinking. Servicemen will be on duty 24 hours a day 7 days a week. Unlike other organisations, we have to have a coherence, a trust and loyalty up and down … we cannot afford to let these things fester away inside a unit, we must deal with them ourselves".Those representations must be taken very seriously. It would be inexcusable to dismiss them out of hand but the question remains as to how all this differs from other disciplined services such as the police, the fire service, or indeed, in at least some respects for example, the air crew in a civilian airliner or a ship's company at sea.
I strongly favour the principle that there should be internal appropriate procedures for handling complaints of the kind referred to in this and related clauses of the Bill. Such procedures do help organisations to learn from mistakes, to internalise the concerns and to take their responsibilities seriously. It is also true that most employees prefer to have their cases dealt with quickly and effectively internally, so long as they have confidence that the procedures are fair, just and appropriate and that there will not be victimisation as a result of bringing a complaint.
31GC The Government have indicated that they intend to require industrial tribunals to take into account whether applicants had sought to resolve their dispute internally before making their tribunal application. Surely if service personnel were given direct access to industrial tribunals, like all civilians, this requirement would serve as a strong incentive for complainants to pursue the, we hope, effective service redress procedure, since if they chose to apply directly to an industrial tribunal they would have to establish and defend their case for doing so.
Delay is itself a detriment to all parties. Industrial tribunals rely on oral evidence and the quality of that evidence deteriorates with time. Delay also increases stress for both the complainant and the others involved. It can seriously affect the working situation, a disturbing possibility in the armed services, as indeed the armed services made clear to the Select Committee in the other place and was obvious from my quotation.
In advocating the importance of the internal procedure, as I certainly do, it has to be recognised that there may be a deterrent in going to a tribunal, if unsatisfied internally, because of the anticipated distress of doing it all again. It is certainly the case that the internal procedure may well not be appropriate where discrimination is believed to operate indirectly or systematically throughout an organisation or part of an organisation.
It has also been argued that an internal procedure can have certain disadvantages. As I understand it, under the internal procedure complainants are normally dealt with in writing. Only the service authorities can require an oral hearing. The complainant is not entitled to do so. She or he may therefore be unable to cross-examine any witnesses, and those adjudicating are unable to measure the credibility of witnesses. To undergo the internal procedure may place a complainant at a potentially serious disadvantage in terms of a subsequent case before the tribunal. The service procedure is investigative: to inquire into the complaint and assess the evidence in support. If the complainant is dissatisfied with the outcome and proceeds to the tribunal, his whole case will be fully known to the service and he will not have equivalent knowledge of the case against him or her.
These are just some of the issues underlying Clause 21. While we most strongly favour the availability of an internal procedure, we are convinced that this should not be mandatory at the expense of the right of direct appeal to a tribunal. We believe the Government have so far failed to establish their case for such a provision. Indeed on sexual discrimination they are moving backwards and eroding a right which is already established. That is why we are compelled at this stage to oppose the Question that the clause stand part of the Bill.
§ 5.30 p.m.
Clause 21 continues servicemen and women's existing access to industrial tribunals in sex 32GC discrimination cases, but introduces a requirement for them first to use the service's internal redress of complaint procedures. As a corollary of this, the clause extends the three-month time limit for making complaints to industrial tribunals to six months in recognition of the requirement to use the internal procedures first.
The noble Lord, Lord Judd, spoke in terms of a diminution of the right of individuals brought about by this clause. I strongly take issue with that. Together with the clauses that follow, this clause is concerned with putting the arrangements for access to industrial tribunals by members of the Armed Forces on a consistent footing, whatever the statutory basis for the complaint.
At present cases of sex discrimination alone can be taken directly to industrial tribunals without use of internal redress procedures first. This direct access derived from the MoD's acceptance in 1991 that the EC Equal Treatment Directive applied, for most purposes, to service personnel.
The MoD's amendment to the Sex Discrimination Act 18 months ago brought the statute law up to date by removing from the Act the exemption for service personnel.
The powers that were used to implement EC legislation by amending the Sex Discrimination Act did not extend to making ancillary domestic changes, such as are being made in this Bill, regarding the use of internal redress procedures. However, it had always been the intention to include in the Armed Forces Bill a requirement to use the internal procedures first and to extend the time limit for submission of complaints to industrial tribunals to six months. The key point is that the requirement to use the internal redress system does not diminish the right to take a case to an industrial tribunal.
The services' redress of complaint procedure is a statutory right given to service personnel by Parliament to reflect their being in the position of having to obey orders. It is much valued by the services, particularly as they may not have their own trade union. There is no statutory equivalent for civilian employees. It is particularly important in the services, where men and women work in close-knit teams and operational effectiveness is vital, that there should be a system for reporting problems immediately.
I welcomed much of what the noble Lord said about the need to have an internal redress of grievance procedure. Indeed, I agreed with many of his observations. Unlike civilians and unlike, incidentally, the police or the fire service, a great many service men and women cannot go home at the end of the day. Service personnel are often available for duty or are in barracks for seven days a week and, particularly overseas, even leisure activities take place in the workplace.
In these circumstances, there may be no escape from the source of harassment or discrimination or whatever it happens to be. It is vital in these circumstances that members of the Armed Forces should have confidence in, and should use, the internal complaints system so 33GC that the chain of command is made aware of any problems as soon as possible and can deal with them. In other words, the internal procedure is a safety valve, providing an opportunity for quick solutions to a problem.
Use of the internal procedures will mean that there will be a short delay before referral to the industrial tribunal, but we feel that that is justified in view of the special conditions relating to service in the Armed Forces. Moreover, it may well help to minimise the number of cases referred to industrial tribunals. In any event, complaints which servicemen and women do wish to take to industrial tribunals will still be capable of being heard by the tribunal within a reasonable time.
As the noble Lord, Lord Judd, said, loyalty in the services works both upwards and downwards. It is an important factor in the safety and morale of personnel and therefore the effectiveness of combat units. Our internal procedures for dealing with complaints are a key ingredient in this framework of loyalty that I have mentioned. I suggest that we need to proceed with considerable caution before taking any steps which might lessen the effectiveness of those procedures.
I would argue that not to have the clause in the Bill as it is currently drafted would be incautious. It might fulfil an understandable desire to have uniformity in these matters across society as a whole, but I would suggest that, in this case, the achievement of that prize must take second place to preserving an important aspect of service life.
The noble Lord, Lord Judd, referred to oral hearings. Service personnel are encouraged to discuss their complaints orally initially, before submitting a formal written complaint, and there is no reason why that procedure should not continue. He also referred to cross-examination. The complainant, of course, will have copies of all documents put to the Defence Council.
§ Lord Judd
This is not the appropriate time, having given notice of the concerns which exist, to take up the time of the Committee by a long debate. However, I hope that these exchanges are not taken just as kind platitudes. We mean it on this side. We enjoy dealing with the noble Earl because we find he is a rational and thinking Minister who is open to argument. In a democracy that is tremendously important.
I have taken careful note of the wording the Minister has used this afternoon. He has talked about the need to proceed with great caution. I would not dissent from that because, as I said earlier this afternoon, when we are dealing with the armed services, where so much responsibility falls upon the leaders of the armed services themselves, we have to take seriously how they perceive their task and what will help them to discharge the responsibilities which we give them. That is something which must be given immense importance in our deliberations, but that does not mean that things cannot move forward. I hope that I am not misunderstanding the noble Earl. I have the distinct impression that his mind is not closed and that there may be possibilities, although perhaps not immediately, 34GC of moving this argument forward even with the present Government in which I do not expect that absolutely everybody would be quite as open as the noble Earl.
Seizing on the indications that we are in a rational discussion, at this stage I shall stand down with the statement that we may well pursue this point at Report.
§ Clause 21 agreed to.
§ Clause 22 agreed to.
§ Clause 23 [Racial Discrimination]:
§ 5.45 p.m.
Lord Judd moved Amendment No. 9:
Page 18, leave out lines 8 to 23 and insert—
(""(9) A complaint to which subsection (8) applies may be presented to an industrial tribunal under section 54(1).
(9A) Notwithstanding subsection (9) of this section, a complaint to which subsection (8) applies may be made to an officer under the service redress procedure applicable to the complainant.".").
The noble Lord said: The commitment of the Armed Forces to becoming equal opportunity employers, which the representatives of MoD explained to the Select Committee on this Bill in the other place, is clearly to be welcomed. The fact that the forces themselves and the MoD have been engaged in discussions with the Commission for Racial Equality to find ways of achieving greater equality of opportunities is very encouraging. The booklet issued by the Army itself is a model of its kind. The introduction by a fine soldier, the Adjutant General, General Sir Michael Rose, states:
The reality of conflict requires high levels of teamwork in which individual soldiers can rely absolutely on their comrades and their leaders. There can, therefore, be no place in the Army for harassment, bullying and discrimination which will affect morale, and break down the trust and cohesion of the group.
It is the duty of every soldier to ensure that the Army is kept free of such behaviour which would affect unit cohesion and efficiency. Army policy is clear: all soldiers must be treated equally on the basis of their ability to perform their duty.
I look to each one of you to uphold this policy and to ensure that we retain our acknowledged reputation as a highly professional Army".
§ That is a splendid expression of both the purpose and its means to fulfilment. The seriousness of the commitment is further illustrated by the way in which the conclusion of the booklet guides personnel to the Commission for Racial Equality and to the Equal Opportunities Commission for further advice. All this nonetheless must realistically be seen in the context of the formal investigation by the Commission for Racial Equality of the Household Cavalry, with its threat of a formal non-discrimination notice, as well as the increasing number of media reports of abuse and harassment experienced by black members of the forces. Indeed, recent research sponsored, to its credit, by the Ministry of Defence itself, and conducted by Lieutenant-Colonel Stuart Crawford, a defence fellow, surveyed a stratified sample of 1,600 serving Army personnel. The results demonstrated that more than half of ethnic minority respondents had stated that they had been victims of racial abuse while serving in the Army.35GC
§ Clause 23 of the Bill proposes an amendment to the Race Relations Act 1976 to introduce a two-stage process for complaints of racial discrimination by serving personnel. Service personnel will be able for the first time to present racial discrimination complaints to an industrial tribunal, but as we have already debated, they will be able to do so only if they have first used the service's internal procedure for redress of grievances.
§ The Government's proposals in the Bill as a whole demonstrate, I believe, a wish to achieve consistency. Indeed, the noble Earl has referred to that. But surely, rather than taking away rights under the Sex Discrimination Act as the Bill proposes, the right course would be to harmonise the Race Relations Act with the procedures at present in force under the Sex Discrimination Act. As I asked in the debate on Clause 21, where is the evidence that led to the removal of rights on alleged sexual discrimination?
§ The Select Committee on the Armed Forces Bill in the other place noted that the proportion of recruits to the Armed Forces from ethnic minorities had in fact declined between 1987–88 and 1993–94. In the determination of the Ministry of Defence and the three services, a determination which I am sure is not synthetic, is it not worth considering whether an acceptance of means of redress, which apply generally in the United Kingdom, might not enhance the reputation of the Armed Forces as fair and open and encourage people from all sections of the population to consider the forces as a career? In any case, such measures may ultimately be unavoidable if the Armed Forces are to ensure the staffing levels necessary for their effective operation.
§ By contrast, continuing to treat the Armed Forces as an exception to procedures in society as a whole for complaints of discrimination are likely to reinforce concerns about the existence and cultural acceptance of discrimination within the Armed Forces. I have already argued on Clause 21 that I favour strongly the availability of an internal procedure, but protecting a compulsory internal procedure could, I fear, hinder those within the forces themselves who want to defeat complacency about such discrimination, because it would limit the exposure of such discrimination to public scrutiny.
§ It is important to keep firmly in mind the objectives of the Race Relations Act 1976. The Act was to provide an effective remedy for individuals encountering discrimination. The accumulated evidence of how the internal redress system is operated is challenging. It has not provided the effective—and again I emphasise the word effective—remedy which had been intended 20 years ago; and of course I am speaking of the Armed Forces.
I refer to the research by Lieutenant-Colonel Crawford. His work indicates that, of the 103 service personnel who reported that they had been victims of racial discrimination, only 14 sought redress through official channels. Colonel Crawford comments:
This shows quite simply that the Army's grievance procedure is not working".
I should like to quote a little further from his survey. On page 34 of the report, he tells us that he posed: "Question 9.'Having been a victim of racial discrimination, why did you not seek official redress?'
The answers to this question show why the Army's grievance procedure is not working. Respondents could identify more than one reason if appropriate, and therefore absolute numbers do not match the 89 individuals who said they had taken no action. Forty individuals … said that they did not complain because they believed such a step might adversely affect their careers. Twenty seven … thought they would not be taken seriously; 23 … feared increased discrimination; while 20 … did not complain because the person to whom they would have to make representations"—
and this takes up the point the noble Earl made earlier,
was the same person who was discriminating against them. Only 12 … said they did not know what to do about the discrimination they suffered. It is clear, therefore, that the majority of ethnic minority Servicemen who suffered racial discrimination knew that something could be done about it, but most chose to take no action because they feared the consequences. The perceived level of racial intolerance is such that keeping quiet is seen as the best way of coping.
So said Lieutenant-Colonel Crawford. He then went on to Question 12:
What action was taken by the authorities?",
This indeed is more encouraging, although he points out that it was "Answered only by the 14 individuals who had sought redress".
Reassuringly, 8 individuals … reported that either a formal or informal investigation had resulted from their complaints.
However, he adds,
It is still worrying, though, to note that 4 respondents … said that no action had been taken, and one did not know if action had been taken or not.
§ We must remember that if, for whatever reason, a serviceman or woman does not make a complaint through the internal procedure within the time limit specified, he or she will lose the right to complain to an industrial tribunal. To the extent that service personnel continue to hold beliefs and fears as revealed in Lieutenant-Colonel Crawford's survey, to that same extent, by foregoing the internal procedure, they will lose their right to complain to an industrial tribunal.
§ I do not doubt the good intentions, but the proposed policy is sadly flawed. I beg the noble Earl, as the firm, sensible and compassionate man that he is, to take the point and accept our amendment which would bring the forces into line with everybody else by granting their personnel the right of direct access to the tribunal, as well as access to the internal procedure. This, we believe, will be in the interests of the effective future of the forces themselves and enable them proudly to reflect the multi-cultural society they are there to defend. I beg to move.
I listened with great care to what the noble Lord, Lord Judd, said about racial equality in the armed services. Let me say at the outset that race relations are taken very seriously indeed in the Armed Forces, and it has been made quite clear throughout the services that racial abuse or discrimination of any sort will not be tolerated. Complaints of racial discrimination will be investigated and, if they are substantiated, appropriate action will be taken against those found to 37GC be involved. I may say that separate records of complaints involving a racial element are maintained by each service.
We very much want to increase the numbers of ethnic minority personnel serving in the Armed Forces. We want to recruit the best people irrespective of ethnic origin, and we will be working hard to provide an environment that is free from racial discrimination or harassment. In accordance with the requirements of the CRE action plan, to which the noble Lord alluded, we will be introducing a number of changes to improve ethnic monitoring of applicants and entrants to the Armed Forces. We shall be producing detailed analyses by sex, source of application, regiment or corps or trade preferred and which achieved, reasons for rejections, success rates, and so on. We are taking these matters extremely seriously, and the co-operation to which the noble Lord referred between the Ministry of Defence and the Commission for Racial Equality is testament to that.
I turn now to the amendments. Although the noble Lord did not specifically say so, I take it that he was working to the grouping on the Marshalled List. At present the Race Relations Act 1976 applies to complaints of racial discrimination in the Armed Forces but it is stipulated that these should be dealt with exclusively through the services' internal complaint procedures.
It has been the case, and it will continue to be so, that the service boards treat complaints of racial discrimination as a matter of extreme seriousness. The change proposed in Clause 23 as it stands will extend rights by allowing access to industrial tribunals in cases of racial discrimination. It is also intended to ensure, in line with government policy, parity of treatment of race and sex complaints by allowing in both areas access to industrial tribunals after prior use of internal redress machinery.
The Bill makes similar provision with regard to the prior use of the internal complaints system for all other complaints eligible for consideration by industrial tribunals. We have already debated the Question that Clause 21 stand part of the Bill. There is little I can add to the remarks I made then, since these amendments would have a similar effect in relation to cases of alleged racial discrimination that the removal of Clause 21 would have had in relation to cases of sex discrimination. Suffice it to say that we do not accept the proposition that the requirement first to use the internal redress system diminishes the right to take a case to an industrial tribunal. It certainly does not.
The noble Lord, Lord Judd, asked where the evidence was that has led to the change we are now proposing. That can be answered in two parts. First, not to have a right to refer to an industrial tribunal would seem to be a denial of natural justice in modern day terms. Secondly—and this is the point to which I referred earlier—the internal complaints machinery has special value to the services, as I have already sought to explain. We believe that that should remain in place. The value of it, of course, is that of affording the opportunity of swift solutions via the chain of command, very often to 38GC take the sting out of an incident and to settle it quickly once and for all. Industrial tribunals, for all their merits, will entail a wait, particularly if one imagines servicemen and women at sea who may need to wait months before a matter is resolved.
I believe that the evidence that the noble Lord calls for is a matter of common sense. I hope that the Committee will not follow him down the road of these amendments because they too readily disregard the importance and value attached to the machinery of internal grievance procedures to which I have referred.
It is true that reservations have been expressed about using the internal mechanisms because the commanding officer himself may be the subject of a complaint and that has sometimes acted as an inhibiting factor. We are proposing in Clause 20 of the Bill to amend the service discipline Acts so that complaints can be made to such officer as may be prescribed in Queen's Regulations. We will ensure that the regulations will provide for complaints against commanding officers or anyone in their chain of command to be made to a different officer. I believe that that addresses one of the concerns of the noble Lord, Lord Judd.
I say again that I hope the Committee will feel that these are sensible proposals which should remain in the Bill as drafted.
§ 6 p.m.
§ Lord Judd
The noble Earl will forgive me if I just probe what he said. He has referred to the provisions soon to be made in Queen's Regulations about the ability to make a complaint to an officer other than a person's immediate superior officer. That could be reassuring but, obviously, we need to know more about that before we can give a verdict. Who will this person be? What will the regulations be precisely? We must know that because that is central to the argument.
The noble Earl will forgive me if I draw his attention to one other point. I am not wilting with sensitivity about this but he did, earlier on this afternoon, chide me about change for change's sake. There is a danger that he has fallen into his own trap on this, because he tells us that to remove the right, in terms of sexual discrimination, to go straight to an outside tribunal, is common sense, but it is common sense if there is a problem. The noble Earl has told us nothing about the problem which has made this change necessary. It has been operating until now and, therefore, there will be a danger that we will say that this is a change that is being introduced but the rationale is not there for anyone to see. There may be a rationale but it is important that the noble Earl lets us more into the secret.
I also make the point, which I have always thought applies in other walks of life as legislation and social attitudes advance on these issues, that if the Armed Forces are getting it right, if the internal appeal procedures are procedures in which service personnel have confidence, if they can see they are fair and just, why not have the ability, as elsewhere in society, to go straight to an outside tribunal? That would, in a sense, be the guarantee of the quality of the services internally, just as has been the case elsewhere.
39GC I must also make the point that the noble Lord has not really dealt adequately with the whole issue of the disincentives which I spelt out, which were evident in Lieutenant-Colonel Crawford's work, announced as it is by the Ministry of Defence, and the inhibitions that are still there about using internal procedures which will, therefore, become an obstacle to gaining access to the external procedures.
Further, I believe that if we want to fulfil our recruitment targets and to ensure that the armed services are culturally in tune with society as a whole and, therefore, clearly part of the society as a whole which they are defending, advance on this score is tremendously important. I hope the noble Earl will forgive me if I say that his arguments have not altogether—in fact, not by a long way—convinced me this evening and we shall probably want to return to this. But, in saying that, I do not want to chide the noble Earl. There is a genuine commitment in the Armed Forces, well evidenced by General Rose, well evidenced by the work the Ministry itself is doing, well evidenced by what I know to be the general demeanour of the noble Earl and others; there is a genuine desire in the Ministry of Defence to move forward, and I know that the Commission for Racial Equality does not feel that it is up against a brick wall. It feels it is working with people who want change effectively, and that is good.
I hope the noble Earl will accept that in the best traditions of democracy this is not a hostile debate. It is a debate in which we are seeking the best way forward for service personnel, for the armed services and for the United Kingdom.
I appreciate the constructive spirit in which the noble Lord has approached these questions. I am sorry I have not been able to convince him. If there is one message that should go out to the general public, it is our wish to see increased recruitment from ethnic minority communities. The services themselves take these issues very seriously.
If we follow the noble Lord down the route of saying that a serviceman or woman should only have access to an industrial tribunal—and, incidentally, that is not a right that he or she now has in connection with racial complaints—we dilute the message we want to promulgate—that the services want to see racism, harassment, discrimination, stamped out. They want to see it stamped out at the earliest possible opportunity and they want to do it themselves.
If you imagine a situation at sea, you need powers to deal with these problems, and to be seen to deal with them, at the outset. One can imagine that there would be very difficult circumstances in which problems might be allowed to fester, merely because there was no disciplinary mechanism in place for it to be sorted out there and then by the commanding officer and, in some instances, for a molehill not to be made into a mountain.
To say that the Government are proposing change for change's sake is not fair at all. The inhibitions that the noble Lord referred to that are felt by some servicemen and women are themselves a barrier to military 40GC effectiveness. If one can destroy those inhibitions by having a system which is seen to work, then we will be one step further down the road of encouraging those from ethnic minority backgrounds to see the services as a fulfilling and interesting career.
§ Lord Judd
The noble Earl has continued to reassure me, not only by what he said but the way he said it, that we have a common objective. We want to see the armed services representing the society of which they are a part, promotion by merit irrespective of origins and armed services open to all. The other evening I was watching the massed bands Beating the Retreat and it brought back good memories to me because one of the things I cherished most when I was privileged to be Under-Secretary of State for Defence—in those days we had individual service ministers responsible for the Royal Navy—was my relationship with the Royal Marines. I loved it, and they are a body of people whom I hold in esteem second to none; and that is not to cast aspersions on any other part of the Armed Forces. It was a splendid occasion and I was as moved as ever, and I was glad to see on that occasion that there were women on parade. That would have been unthinkable some time ago, but there they were. I noticed, among all those watching, including the most senior officers in the Armed Forces—and I took great heart from this—that there was pride about this. There was no sense of shock, but it was "Isn't this good! Didn't they perform well." The way I noticed it was that there seemed to be some shorter Royal Marines, and then I realised that these were the women on parade. And that is magnificent.
What I also noticed, however, is that there were no black faces on parade. In Britain, years ago, I perhaps would not have noticed that in the same way, but in a changing Britain it somehow stood out. There is a commitment to bring that about, and, in all of this, we are not just talking about how complaints are dealt with and how harassment is dealt with, but how through the way in which these things are dealt with, we advance and accelerate the process towards effectively opening up the services.
I do ask the noble Earl to accept that, while we press these points, our objectives are the same. It is just that we feel that what we are advocating would be a better way than the way in which the Government at present appear to be committed. However, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 10 and 11 not moved.]
§ Clause 23 agreed to.
§ Clauses 24 to 29 agreed to.
§ Clause 30 [Greenwich Hospital]:
§ Lord Judd moved Amendment No. 12:
Page 25, line 28, at beginning insert—
("Where he is satisfied that the objectives set out in paragraphs (a) to (c) of subsection (2) are met,").
§ The noble Lord said: In moving the amendment I do not believe it is necessary to go over all the background yet again. However, I shall do so a little, if I may.41GC
§ We know that, to the Government's shame, everybody with any sense of history or concern for the national heritage was appalled to find that last autumn the Government had allowed the Royal Naval College to be advertised in a glossy magazine by the estate agents Knight, Frank and Rutley. To some of us that seemed a grotesque example of the cheapening of society by uncurbed market ideology. Thank God that nightmare has been transformed. Noble Lords can claim great credit for that, as can the good taste and sense of public opinion, the Select Committee in another place, and certainly Mr. Nick Raynsford for his articulate and convincing interventions in another place.
The Bill now stipulates in Clause 30(2) that:
In the exercise of his functions under the Greenwich Hospital Acts 1865 to 1996 in relation to the land to which this section applies, the Secretary of State shall have regard to—
That at least is civilised, but where are the teeth? Having sounded the bugle of decency, Clause 30(3), potentially at least, beats what in effect could be a disappointing retreat. It states:
It shall he lawful for the Secretary of State to grant a lease of any of the land to which this section applies, with its appurtenances, to any person appearing to him to be suitable for a term not exceeding 150 years".
§ There is no obligation to put the principles of Clause 30(2) into practice. There is a need to bond subsections (2) and (3) of Clause 30 making action under Clause 30(3) dependent upon fulfilling the principles of Clause 30(2). That is what the amendment is about. That is particularly important in view of other obligations, such as to realise the highest possible price, which could otherwise be construed as part of his responsibilities as a trustee under charity law.
§ I fully recognise that negotiations are now proceeding, with the very attractive proposition of an arrangement between the University of Greenwich and the National Maritime Museum, which is altogether splendid. We are legislating for the long-term future, way into the century ahead or more, and nobody can tell with certainty what the plans of the university or museum will be then. Therefore, surely it is prudent to write the means as well as the aims into the Bill. Perhaps I may say that that is what the amendment seeks to do, and before the noble Earl makes the same rather unconvincing technical point that the Minister of State made in another place, I should underline that "the importance of preserving", "the desirability of securing" and "the desirability of preventing" are to any reasonable person very clear objectives which are entirely compatible with the principle that the Secretary of State has to be satisfied that those objectives are met. I beg to move.
§ Lord Mottistone
I strongly support what the noble Lord, Lord Judd, has just said. The sense of what he has 42GC said is exactly what I believe is necessary. Whether the wording is right I do not know, but it is terribly important that Secretaries of State should meet the requirements that are set out in subsection (2) before going on to subsection (3).
In so saying, I have also been puzzled from the beginning about the 150 years. What is the significance of that? When my noble friend comes to reply, perhaps he will tell us why it is 150 years and neither longer nor shorter. That is purely inquisitive. The basic thing is that I believe that the noble Lord, Lord Judd, has it quite right. Clearly it will not be amended now, but I hope that at the next stage we shall be able to bring this in in a big way.
§ Lord Williams of Mostyn
I entirely endorse what the noble Lord, Lord Mottistone, has just said. I do not believe that the amendment is necessarily perfect in wording, but the objective that it seeks to attain is a noble one. This single topic is worthy of a Bill on its own; it is that important.
If one just looks at the scheme of Clause 30, the Secretary of State holds these lands and buildings "in trust for Her Majesty". I deeply regret to say that many within the Armed Forces and without have no trust in the trustee. This is far beyond the occasion of the moment. One only needs to look at the description of the buildings and then—rather surprisingly in a Bill—the fineness of the language:the importance of preserving for the benefit of the nation".That sounds like 1805 to me. It refers to the "historic buildings and monuments" and "the architectural integrity" and to "reasonable public access" and to the "unique character and history". It is shameful that we need to be on our guard to this extent.
If one goes to the public buildings in Paris one sees what public glory and joy there is in them. We cannot say that about this capital city. My noble friend Lord Judd has quite rightly referred to a number of people who have interested themselves in this question, not least, I would add, Simon Jenkins, who has mounted a noteworthy campaign in the columns of the Evening Standard and The Times about precisely such sites as this. What on earth are we doing having to be on our guard against the proposed possible vandalism of a jewel of this sort?
I had the great privilege a few weeks ago of going to address an evening seminar for an advanced joint services course at these very buildings. The thought that they could be destroyed by unthinking vandalism is almost breathtaking; it is infinitely dismal. I would venture to suggest that, although the wording of course is not watertight or perfect, what we must have before the Bill leaves our House is categoric, copper-bottomed guarantees that the integrity and the historic value of these buildings and of this site will properly be regarded as a trust for the nation and not something to be treated as the plaything of the financial moment.
§ Lord Kennet
I have nothing to add to the arguments that have been advanced, and indeed no criticism to make of my noble friend's formula in the Bill, though if it is possible to improve it that will be good indeed.
43GC I want to use the occasion for a couple of minutes to mention a factor with regard to the future of the buildings at Greenwich which, as far as I know, has not yet been mentioned in either House. Greenwich was not built for kings and princes. That is an historical mistake. Its predecessor was a royal palace, but the great buildings we know now were not built for kings or princes or even for admirals. They were built for naval pensioners and ratings. I suppose that a few junior officers were allowed among them, but I do not know about that. When I look at the formulation in the Bill, the desirability of not being:out of keeping with its unique character and history",I think to myself, "OK, what is it's unique history, what is the essence of it?", and it is that it was maritime. It is a maritime foundation beside two other great maritime foundations. It will be a very good idea if that could be maintained. What I like about my noble friend's form of words is that the beginning of subsection (3) would not allow the Secretary of State to enter into any lease until he was satisfied that that unique character was safe, obviously for the duration of the lease. If we can accept that that is a maritime characteristic, that would be a great safeguard for the future not only of the buildings but also for all the manifold maritime industries in this country which are at present so greatly neglected.
A word in passing about the University of Greenwich. I agree with my noble friend that this is a satisfactory solution. I am not sure if I am quoting him fairly when I say that they have promised that students will not have dinner in the Painted Hall, or anything vulgar like that. To my mind, this is exactly the wrong way round. There is no notable number of naval pensioners at the moment and those there are have no need of a special hospital for their maintenance, although, of course, the Army is still keeping Chelsea fully in use. But would not students be exactly the right sort of person to carry on enjoying the grandeur of that place in academic circumstances?
The National Maritime Museum, the other partner in the partnership which we hope will succeed there, has suggested that the Painted Hall could be let out for dinners to City livery companies because some of them, poor fellows, do not have a grand hall of their own—some do and some do not, and those that do not should be able to hire the Painted Hall at Greenwich.
Once again, let us remember that it was not built for the affluent, privileged and leisured. Although there could be no possible objection to letting it out profitably a few times a year for people to hold dinners in, I hope that the Secretary of State will write it into the lease that it should be primarily for the benefit of university people and maritime people who come there to attend conferences and courses. Possibly, as I suggested before, the World Maritime University, could hold courses in the buildings at large, and have dinner in the Painted Hall at a low cost. For the associations of former naval people who come to dine there, I suggest the cost should be £1 for ratings and £2 for officers.
The Earl of Clanwilliam
The noble Lord, Lord Kennet, described on Second Reading all the 44GC opportunities that could occur if the maritime centre was established at Greenwich. Of course, it is the one place in England where it should be established. The extent of the historic site does not need to be recorded at this moment.
I wonder what would happen if anybody suggested that the Chelsea Hospital should be let for 150 years. It would be a disaster. It is inconceivable that such a building should be let for 150 years. However, here we are, thinking of a far greater establishment, a far greater centre at the heart of our naval and nautical experience which we are going to flog off. It is too appalling to think of. I support the amendment.
The Earl of Balfour
I am rather concerned, first, about Amendment No. 12. It has been my experience generally that tenants are not at all good at looking after the building which they rent. I feel that the conditions written into the tenancy should be very strict. However, from the words at the beginning of subsection (3) of Clause 30 I get the impression that the tenant would be responsible for,the importance of preserving for the benefit of the nation",as set out in subsection (2). I fear the worst in that respect although I accept that I may have misunderstood the clause.
I should like to make one or two other points on this clause. First, the Seamen's Hospital specialised in tropical disease, and there is still a need for that in this country. I also have the impression that Clause 30 allows the Secretary of State on behalf of the Crown to let for occupation part or whole of the Royal Naval College at Greenwich. Section 7 of the Greenwich Hospital Act 1869, which is being repealed, allows others to occupy unwanted land at the hospital. I wondered why that provision was being repealed as other parts of this Bill allow the hospital grounds, along with the College, to be let.
I have been down to the National Maritime Museum on quite a number of occasions and I must say that I find the Royal Naval College one of the most magnificent buildings I have ever seen in my life. I was there on only one occasion. It has a fascinating naval history. I hope very much that it can have a close connection with the National Maritime Museum.
Legislation often refers to "the Secretary of State", but I wonder whether some other worthy naval citizen could also be a trustee in this case, so that we have a second string to our bow to see that these buildings really are looked after.
§ Lord Mayhew
I should like briefly to associate myself with the amendment which I warmly support. Parliament has done well on this Bill as far as Greenwich is concerned. The amendment is a very mild one. I look forward to hearing the noble Earl, if he does not accept it, explaining how it would be proper for the Secretary of State to proceed to lease the land, even if he is not satisfied that the terms of subsection (3) have been met.
45GC I shall not detain the Committee. I am a past president of the Royal Naval College, and I feel as emotionally involved as some noble Lords opposite. I beg the Minister to accept the amendment.
Let me say at the outset that I sympathise completely with the concerns that noble Lords have expressed about a worthy and fitting use for these magnificent buildings. The debates in your Lordships' House on the issue have brought out the level of that concern. I hope that the actions the Government have taken will have allayed some of the worries initially expressed last year. There is no real distance separating the Government from Members of the Committee concerning what we all want to see happen to the buildings.
We have taken considerable care to ensure that, as far as possible, the wider interests of heritage and access are reflected in future decisions on the Royal Naval College. It is important to remember that the Secretary of State is holding the land as trustee for the benefit of Greenwich Hospital, which is a Crown charity. I am sorry that the noble Lord, Lord Williams, felt that he had to cast aspersions on the integrity of my right honourable friend the Secretary of State as a trustee of Greenwich Hospital and indeed on his commitment to finding a fitting occupant for the Royal Naval College. That commitment is as strong as ever. Indeed, I believe that the announcement my right honourable friend made recently demonstrates how keen he is to see that we reach the right end point.
My noble friend Lord Clanwilliam expressed the view that it was a disaster that the Navy was leaving Greenwich. I agree that it is a matter of great regret that the Navy is leaving. I believe that the Royal Navy itself is extremely sad at the prospect. The fact is, however, that it is leaving, and for perfectly sound reasons. We have to find an appropriate tenant to take its place. The reason we have to repeal the section in the 1869 Act, to answer my noble friend Lord Balfour, is that the Act specifies that the buildings, which we now know as the Royal Naval College, may only be occupied by the Royal Navy or by a government department. That restricts the choice of tenant available.
§ Lord Kennet
That is, I think, an abbreviation of the text of the existing law: it must be occupied by the Royal Navy, a government department, or some other maritime connection or interest.
The noble Lord is quite right. I am sorry. The point still stands that the Act restricts the choice of occupant. That is why my right honourable friend felt that it was right last year to see who might be out there as a potential, fitting, occupant of the college. We have found at least two fitting occupants—in fact more than two—and I have every confidence that the question of the occupation of Greenwich will be happily resolved.
The Earl of Clanwilliam
There may be two. Will the noble Earl kindly explain whether they have a strictly maritime connection?
I am sure my noble friend will be aware that when my right honourable made his recent 46GC announcement there were two major potential tenants in the frame: one is the University of Greenwich and the other is the National Maritime Museum. There are other potential tenants for various parts of the Royal Naval College; I shall refer to that again in a moment. However, the point I was seeking to stress is that it would be unfair to Greenwich Hospital, the Crown Charity, if the Secretary of State could determine the future occupation of the Royal Naval College buildings without having regard to the charity's interests as well.
The clause as currently drafted seeks to achieve a proper balance between the private interests of Greenwich Hospital, which the Secretary of State as trustee must seek to safeguard, and the wider public interest. The noble Lord, Lord Judd, placed emphasis on the need for a firm link between subsection (2) of Clause 3 and subsection (3). He is absolutely right and there is already a clear link between those two subsections. Subsection (2) lists considerations to which my right honourable friend must have regard in exercising his statutory functions under the Greenwich Hospital Acts. It is clear from subsection (12) that this includes his power to grant the lease of the Greenwich site under subsection (3), so the trustee would be in breach of the clause if he granted a lease of the site without first having had regard to the considerations in subsection (2). The link is there. It was a fair point made by the noble Lord, but perhaps he had not made the connection between the various constituent parts of the clause.
The noble Lord, Lord Judd, felt that we perhaps ought to go rather further than we have. The possibility of making this Bill a hybrid Bill was a principal consideration which we bore in mind in drafting the key amendment to this clause, which was then agreed in another place. It was and remains our judgment that the wording of the clause goes as far as it can without raising the spectre of hybridity. The policy which appears to lie behind the noble Lord's amendment would be likely to take the clause, and hence the Bill, over the threshold of hybridity. For that reason we do not recommend that the Committee embraces these amendments, although we hope that noble Lords will see that the spirit of them is embodied already in the Bill and is one with which we can very readily identify.
My right honourable friend announced his intention to grant the head lease of the Royal Naval College to a heritage trust. That announcement was widely welcomed and my noble friend Lord Balfour may like to note that my right honourable friend was very receptive to the suggestion that a retired admiral should serve as one of the trustees of the heritage trust.
The wording of this clause reflects the importance that my right honourable friend and your Lordships attach to the heritage and to access, alongside the charitable purposes of Greenwich Hospital. The noble Lord, Lord Kennet, expressed his view that it would be appropriate if these buildings were once again available for the benefit of naval pensioners in accordance with the original purpose for which they were built. One of Greenwich Hospital's objects is the benefit of seafarers. Indeed, they will continue to benefit because rent will be paid to Greenwich Hospital which will then be used 47GC for the furtherance of their objects. It is welcome that the Greenwich Hospital charity announced its wish to earmark the Trafalgar quarters for sheltered accommodation for former seafarers or their wives or widows in accordance with the original objectives of the trust.
My noble friend Lord Mottistone asked what was the significance of the period of 150 years which this clause lays down. The answer to him is that we need to be able to give a lease a reasonable length of time to make it a worthwhile proposition to a lessee, but not so long as to lose control of the buildings. There is no particular significance in the number 150, althoughinterestingly—in its 300-year history the Royal Naval College was a hospital for about 150 years and then a college for a similar period. So perhaps there is a certain symmetry in this number.
On a more technical point—if the noble Lord will bear with me—although the clause as drafted requires the Secretary of State to have regard to various matters, it has not been drafted to contain any "objectives", which is the word used in the noble Lord's amendment, such that a court could say that they had or had not been met. So the amendment as it stands is technically incompatible with the current clause and would not actually work.
I hope that I have said enough to persuade the Committee that the Government's approach is right. It is as far as we can go without making the Bill a hybrid one, and I hope that the words that I have placed on the record will give reassurance to those noble Lords who are may have harboured some concerns.
§ Lord Williams of Mostyn
If the noble Earl reads Hansard tomorrow, he will note that I did not impeach the integrity of the Secretary of State. What I have questioned is his judgment. That is quite different. What we want in paragraphs (a), (b) and (c) in the subsection is a useful harness to circumscribe the exercise of that judgment. There is no suggestion of any attack on the Minister's personal integrity. I made none, nor did I intend any.
§ Lord Judd
Before I deal with our debate, I hope that it is in order to say how much I appreciate these kinds of Committee stages in the Moses Room. They are a good development in this kind of legislation. I do not believe that that is my view alone, and I would like to thank those who have been advancing this experiment, because it is a civilised and constructive way to approach our responsibilities. I thought that this might be a good opportunity to say that.
One of the things that sometimes goes wrong in democratic discussion in general is the primadonnish way in which, inexcusably, Government or Opposition spokespeople become attached to the words that they have used, and in the end they are defending the words they have used rather than finding a way of fulfilling the objective that is established. I would be the first to 48GC say that if, with the help of superb parliamentary draftsmen (whom, on this side of the House, we cannot wait to get our hands on in the future), it were possible to find a proper, more effective and foolproof way of achieving the objective that my noble and learned friend has spelt out and which I myself have tried to argue, we would be the first to accommodate such changes. We do not live or die by a particular set of words; we live or die by the principle we are trying to achieve.
In that context, I would say again, as my noble and learned friend has said, that at least to the eye of the layman—and it is important that, while legislation stands up legally for the legal experts, it is also comprehensible to the layman and clearly establishes the principles about which the layman is concerned—we still have a problem in the Bill. It is not manifestly clear that, having regard to certain considerations that Members on all sides of the Committee have said are important, the Secretary of State then necessarily has to act in compliance with those principles. What we want to establish more clearly is that he has—I put it as a layman, if my noble and learned friend will forgive me—a compulsion to act in such a way. We would ask the Government to look at this a little further.
If the Government could come forward at Report stage with some wording which bridged the gap, the rejoicing would be unlimited and the Government would find themselves on a pinnacle of popularity on this issue. I therefore believe that, at a time when pinnacles of popularity may be rather hard to come by, this is a thought worth taking seriously.
I thank the Minister most warmly for the way in which he has responded not only to this debate but to all the others. While I retain the right to come back to it at Report stage, I now beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 30 shall stand part of the Bill?
§ Lord Kennet
I did not realise that my noble friend intended to withdraw his amendment at that point. The noble Earl said that my noble friend's formulation which lays an increased duty on the Secretary of State in this matter would take it over the threshold of hybridity. I may be obtuse but I did not understand that at all. This is of course a Public Bill and it could not be more public as regards the Armed Forces in changing the powers and duties of the Secretary of State. That is Public Bill material. As I understand it, a hybrid Bill is one which not only is a Public Bill but which also affects the rights or duties of an individual, whether a person or a corporation. In what respect does my noble friend's wording do that?
I will be subject to correction, in which case of course if I am wrong I will write to the noble Lord. My understanding is that the rights of the individuals, to which the noble Lord rightly referred, are in this case those of Greenwich Hospital Crown Charity 49GC and the beneficiaries thereof. To go any further than we have in the wording of the Bill would impinge upon those rights to an unacceptable extent.
§ Lord Kennet
I am very grateful to the noble Earl for that explanation. Perhaps at the next stage the noble Earl will be able to give us an example of the manner in which the rights of the charity would be affected by the slight modification of the Secretary of State's publications.
§ Lord Judd
Without unnecessarily prolonging our proceedings, I wonder whether I may help on this point. There is an issue to be addressed here and I would be the first to address it. As I understand it—I have spent quite a lot of my life with professional responsibilities in the world of charity, on which I declare an interest—the trustees of a charity have a responsibility to maximise the income to the charity and the purpose for 50GC which the charity exists. That is why, in my introduction, I made the point that what we have to do is empower the Secretary of State specifically in this context to be able to do something that, under charity law, might not be acceptable. There is an issue here. I put forward the principles this evening and I would hope—the noble Earl went a long way towards this—that if the Government would really see the point and accept the point, it would be good for the Government to know that they would have a lot of support in finding some way of bridging the gap. However, there is, I believe, an issue here, which should be addressed.
§ Clause 30 agreed to.
§ Clauses 31 to 36 agreed to.
§ Schedules 1 to 7 agreed to.
§ Bill to be reported without amendment.
§ Committee adjourned at ten minutes before seven o'clock.