HL Deb 19 May 1986 vol 475 cc23-69

3.58 p.m.

House again in Committee.

[Amendment No. 1 not moved.]

Lord Graham of Edmonton moved Amendment No. 2: After Clause 4, insert the following new clause:

("Campaign against drug abuse and alcohol abuse.

. In section 43 of the 1955 Acts and section 28 of the 1957 Act (drunkenness), there shall be inserted the following subsection—

"(3) It shall be a duty of the Secretary of State to ensure that there is an effective and continuing campaign directed at those to whom this Act applies which publicises the dangers of drug abuse and alcohol abuse.".")

The noble Lord said: I rise to move Amendment No. 2. The Committee will appreciate that the Government have a good record on recognising the problem of drug and alcohol abuse. It is in order to seek to amend Section 43 of the 1955 Act—which in the margin relates to "drunkenness"—that I rise to move the amendment in my name on the Marshalled List. The Minister will appreciate that what I am seeking to do is to lay on the Government a duty to make it more positive that they recognise the realities.

The record of the select Committee on the Armed Forces Bill is my text for a great many of the matters that I raise. The Minister will be aware that on Second Reading I indicated that I would do this. It is not a matter on which I would seek to divide the Committee, but I believe the Minister should take the opportunity to explain as fully as possible the concern of the Minister of Defence for that for which we have a responsibility.

I refer to page 179 of the Select Committee on the Armed Services. We find an interesting contribution by Brigadier Peck. In item 624 he was asked by my honourable friend Dr. Godman: Alcohol and tobacco kill more people than other drugs. What education programme do you have, given that these are socially approved drugs and that no one is barred from access to them in the Armed Forces, what education programmes do you have for young Service personnel … in terms of warning them off these more dangerous and yet socially approved drugs? Brigadier Peck then said: whenever anybody joins a unit whatever definition that unit has, he would"— not "is" but "would"— be made aware of the requirement to maintain a high standard of personal discipline. That would be explained to him. He would be educated in the general sense that commanders are expected to educate their young".

Then there was a contribution on the same matter and the discussion certainly contained no animus. Under paragraph 626 Air Vice-Marshall Campbell said: We do not have a specific education team, although the drug abuse lectures always start with an explanation that alcohol is a drug". As the Committee will appreciate, unlike drug abuse the social acceptability of alcohol negates the need for clandestine use of drink and the true scale of any problem is therefore likely to be more accurately ascertainable once the new system is in operation. The factors which make the services a potential risk area for drug abuse—off-duty boredom, separations, stress and peer group pressure—apply equally to excess drinking. I do not want to exaggerate, although I believe there is a tendency for the ministry, perhaps for proper reasons, not to be fulsome in indicating the size of problems of this kind.

At Second Reading I quoted from an item in the Sunday Times dated 27th April. The part that I did not quote I believe is germane to this debate: A tri-service body on drug abuse prevention, that includes lawyers, educationalists, doctors and the military police, has been set up to monitor the problem and make recommendations on improvements in education, prevention and detection. The RAF has increased the number of its drugs education officers from one to five".

When we appreciate that each year we seek to recruit about 30,000 men and women to deal with the requirements of the services and that of the total of our armed services about 87,000—that is, about 27 per cent. of the total—are aged 21 or under, then we, representing some kind of stewardship over the welfare of young servicemen, have a right to hear from the Government what they are doing positively to meet a menace which, quite frankly, all of us are sad about and which clearly is not a matter just for the armed services. There are the prison services; and throughout society the problem is increasingly not just one of drugs but also of alcohol and other abuse. One thinks of the solvent abuse syndrome which has come on to the scene in the last five to 10 years. I should like the Minister to tell the Committee what he and his colleagues are doing to deal with this very difficult problem.

The recommendation which is part of the Armed Services report, recommendation No. 6, hangs on the peg of the Government response to the 1981 Select Committee. As the Committee is aware, we are debating a Bill of a type which is dealt with every five years. In 1981 the Select Committee said: We believe that drug abuse in the armed forces might be kept under better control if the other two services were to use specialist teams in this way and recommend that this possibility be explored before the 1986 Armed Forces Bill is introduced". I am asking the Minister whether he can satisfy us that the best practice, which has been proved to be moderately successful in one service, is used by the others. The Minister will be aware that as long as 12 months ago the Minister of State announced in the continuation order debate on 27th June that a tri-service drug prevention group had been set up in March 1985. I am asking the Minister to tell us what progress has been made and with what success? I do not want figures about the number of people convicted, because these are tragedies in themselves. I want the Minister to satisfy the Committee that he is seized of our responsibility to deal with these matters not only on behalf of the servicemen, but also on behalf of parents and society. I beg to move.

Lord Denning

I should not think we need a statute on this. Cannot we leave it to the commanding officer?

Lord Trefgarne

I say at once that we take this matter very seriously. The services draw their recruits from society as a whole and they do, therefore, to some extent reflect the trends in that society. Thus they cannot hope entirely to escape problems such as drug and alcohol abuse. So far as alcohol abuse is concerned, the statistics are not readily available, but there is no evidence that alcoholism is a significantly greater problem in the services than in society generally. Statistics on drug abuse are carefully monitored, and I am glad to say that at this stage drug abuse is not considered to be a major problem.

Nevertheless, the services are well aware of the great dangers of both drug and alcohol abuse. Service chiefs rightly fear the debilitating influences of both drugs and alcohol and the effects these would have on the health, efficiency and discipline of our armed forces. As a result a comprehensive programme of measures has been instituted to combat these evils. This programme involves anti-abuse education including films, lectures and demonstrations—indeed, I have myself seen some of the new films on drug abuse that have recently been made and which will in due course he circulated to the fleet and elsewhere—measures to improve the prevention and detection of drug abuse, and the provision of medical remedial treatment.

The campaign against the evils of alcohol and drug abuse is regularly reviewed. In recent months, for example, the Navy has set up a special alcohol education team and progress here will be carefully reviewed by the other two services. Furthermore, the whole range of anti-drug measures has recently been brought under the scope of a new tri-service drug abuse prevention sub-committee, to which the noble Lord referred. One of the steps it has been considering to combat drug abuse is the use of urinalysis equipment for drug detection. Indeed, as the noble Lord may know, I recently saw some of that equipment in action, and we shall be making our requirements known shortly. It is hoped in due course to be able to procure some equipment of that kind. It is intended that such equipment should be used as an additional aid to investigation in specific cases where there is a reasonable suspicion of drug abuse.

Steps have also been taken to improve the statistical basis for recording the incidence of drug abuse within the services so that trends can be carefully monitored. Perhaps I may add at this stage that it is clear that the incidence of drug abuse in the armed forces is way below the incidence of drug abuse in the community at large.

I and my colleagues are most concerned about the dual threat to the services presented by these evils, as indeed are the service chiefs. I hope that I have been able to persuade the Committee that every attempt has been made to combat this threat and that our methods of doing so are regularly reviewed and updated. In the light of that assurance, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Graham of Edmonton

I certainly intend to withdraw my amendment. The last thing that I would say is that the Minister is sanguine. I appreciate from what he said that steps are being taken. But, despite that, the Minister is aware that the number of British servicemen convicted of drug-related offences in military and civil courts has risen from 122 in 1982 to 353 in 1984. The Minister might say that that is a better record than in civilian life—that is, a doubling. It may very well be so; but it is a matter for concern. The item which I have read from the Sunday Times, which is validated, talks in terms of the figures for 1985 and 1986 showing a continuing increase.

They can still show an increase despite all the good efforts that the Minister and his colleagues are making. I do not agree that this is a matter which should just be left to the commanding officer. It is a responsibility of your Lordships' House to tell every commanding officer by way of primary legislation that we believe that there are responsibilities here. When we are endeavouring, as I am in relation to this amendment, to ensure that there is an effective and continuing campaign, what we are really saying is that we must never forget our responsibilities to the young people, to their parents and to society.

The Minister will appreciate, because I keep coming back particularly to the question of drugs, that I would never cavil at expenditure which is directly related to an attempt both to educate, which is difficult to quantify, or to eradicate or rehabilitate people who are unfortunately affected by drugs. It is not my intention to press this matter to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Lord Graham of Edmonton moved Amendment No. 3: After Clause 4, insert the following new clause:

("Offence of discrimination on sectarian grounds.

.—(1) After section 69 of the Air Force Act 1955 (conduct to prejudice of air-force discipline), there shall be inserted the following section— >"69A. Any person subject to air-force law who acts or conducts himself in a manner which is discriminatory on sectarian grounds shall be guilty of a disciplinary offence.

(2) After section 69 of the Army Act 1955 (conduct to prejudice military discipline), there shall be inserted the following section— 69A. Any person subject to military law who acts or conducts himself in a manner which is discriminatory on sectarian grounds shall be guilty of a disciplinary offence.

(3) After section 41 of the 1957 Act (aiding and abetting of naval offence), there shall be inserted the following section— 41A. Every person subject to this Act who acts or conducts himself in a manner which is discriminatory on sectarian grounds shall be guilty of a disciplinary offence.".")

The noble Lord said: I beg to move Amendment No. 3 which the rubric indicates as dealing with the offence of discrimination on sectarian grounds. Those who have read with care the proceedings of the Select Committee on the Armed Forces Bill will understand that there was, to say the least, a hiatus in the Committee at the refusal of the majority on party lines to accede to the introduction of a witness who the minority side felt could help the Committee in respect of this matter. I think that that was rather sad. Clearly, we are talking here directly on this matter of sectarianism in respect primarily of the Northern Ireland situation—not explicitly of course; there may be other Members who wish to talk about this. I simply want to say to the Committee what a Member in another place, Mr. Mallon, had indicated that he would have been wanting to talk to if the matter which the memorandum dealt with (and which was received) had allowed him so to do.

This is what the Select Committee (which in effect we are discussing with our items today) had to say on page 257 under paragraph 12a. There are a number of examples which show what I mean when I describe the UDR as sectarian. (i) The UDR has had a proven involvement in loyalist paramilitary groupings, for example, the Miami show band murders, and the case of the Skankill Butchers both involved members of the UDR. (ii) Membership of the Orange Order and the Black Perceptory, an example of which is the charging of two men of the UDR following marching in Portadown in the summer of 1985. (iii) Open involvement in Unionist politics. There are for example members of the UDR who have been members of "Armagh District Council". There is a great deal else. What I want the Minister to talk to us about in this amendment is, first of all, the status of the UDR as covered by this Bill; and, secondly, what actions the Government take in general, certainly over particular allegations of that kind, to make sure that the kind of discrimination which I am talking about in my amendment are—if not stamped out; and we all understand the realities in Northern Ireland—at least, so far as possible, not tolerated.

At Report stage of the Bill, my honourable friend Mr. McNamara not only relied on the evidence of Mr. Mallon, but he also introduced other evidence from the parish priest at Bessbrook, Newry, in County Down. He said: 'In my recent parish of Carrickmore, County Tyrone, I had reason to make representations on behalf of two of my parishioners at their request when they claimed that they were ill-treated by men from the UDR'. Then he goes on to make those allegations. He does not simply say that they were bad acts by members of the armed services; he makes allusions to a sectarian aspect of it. The Minister would be helpful to the Committee if he gave us the benefit of his observations on the matter. I beg to move.

Lord Trefgarne

I want to stress right at the outset that discrimination by members of the armed forces on any grounds, whether of race, religion, colour or anything else, during dealings with other servicemen or with members of the public would not be tolerated. If it were to take place, it would be viewed extremely seriously and dealt with accordingly. Service law already contains a number of offences under which racial or religious discrimination would be an offence wherever it took place. Any conduct to the prejudice of good order and discipline under which any act of racial or religious discrimination would fall is an offence.

Moreover, anyone subject to service law commits an offence when he uses threatening, abusive or provocative words or behaviour. On 1st March this year the code of practice for the treatment and questioning of persons by the service police under the Police and Criminal Evidence Act 1984 came into effect and I should like to quote the following paragraph: Discriminatory behaviour on the grounds of a person's ethnic or national origin may render a service policeman, like any other member of the armed forces, liable to disciplinary action". Taking into account all the safeguards that I have outlined, the provisions of which extend beyond those proposed in this amendment, I do not consider that the noble Lord's amendment would usefully assist in the prevention of discrimination in the armed forces. Having said that, our aims, I am sure, are absolutely parallel in this matter, and in the light of this I hope that the noble Lord will not wish to press his amendment.

Lord Graham of Edmonton

I do not intend to press the amendment. The Minister has had the opportunity to explain not just to the Committee but to the wider world outside that the Government (to the same extent that it is possible) do not agree to any extent with discrimination whether it is on sectarian or any other grounds. I am quite certain that the question of race relations, as well as equal opportunities and other rights which are enjoyed are equally applicable and are made available to members of the armed services. Certainly those outside your Lordships' Chamber, having heard the Minister, should recognise that if they know of instances, and have evidence to support those instances, which they believe are contrary to what the Minister has said, they have a responsibility not only to those who come to them with complaints but also to the Minister and to the Government in order that they can deal with those matters. In the circumstances I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord Graham of Edmonton moved Amendment No. 4: After Clause 4, insert the following new clause:

("Abolition of the death penalty.


.—(1) In subsection (1) of section 24 (aiding the enemy), subsection (1) of section 25 (communication with the enemy), subsection (1) of section 31 (mutiny) and paragraph (i) of section 32 (failure to suppress a mutiny) of each of the 1955 Acts, for the words "death or any other" there shall be substituted the word "any".

(2) In section 2 (misconduct in action and assistance to the enemy), section 4 (obstruction of operations), section 5 (aiding the enemy), section 9 (mutiny) and section 10 (failure to suppress a mutiny) of the 1957 Act, for the words "death or any less' there shall be substituted the word "any".

(3) In subsection (2) of sections 71 (punishment of officers) and 72 (punishment of other ranks) of each of the 1955 Acts and subsection (1) of section 43 (scale of punishments) of the 1957, Act, paragraph (a) shall be omitted.

(4) Section 121 of each of the 1955 Acts and sections 78, 79 and 80 of the 1957 Act (execution of sentence of death) shall be omitted.").

The noble Lord said: This amendment concerns the abolition of the death penalty. I beg to move the amendment, always conscious that amendments drafted in opposition—bereft as we are of the panoply of assistance which is available to the Minister in the MoD and from the various sections—may very well have defects in them. However, the purpose of this amendment is clear. We seek to apply to members of the armed services the same law as is applied to or enjoyed by the civilian population. We rely very heavily for the extended debate that we shall certainly not be having here today on the matters which are being teased out and which will be dealt with when we look at the special report from the Select Committee. I believe it may help your Lordships if, in looking at my amendments, I could simply say: In subsection (1) of section 24 (aiding the enemy), subsection (1) of section 25 (communication with the enemy)", and then take out the words, shall, on conviction by court-martial, be liable to suffer death or any other punishment. What I am doing in fact is seeking to take out the words "death or any other", so that the passage would read, "to suffer punishment".

The matters with which your Lordships who are present here today are more conversant than I am, having argued about them, are quite clear. Section 24 has the heading, "Aiding the enemy". Section 24(1) says: Any person subject to military law who with intent to assist the enemy:

  1. (a) abandons or delivers up any place or post which it is his duty to defend, or induces any person to abandon or deliver up any place or post which it is that person's duty to defend, or
  2. (b) does any act calculated to imperil the success of operations of Her Majesty's forces, of any forces co-operating therewith or of any part of any of those forces, or
  3. (c) having been made a prisoner of war, serves with or aids the enemy in the prosecution of hostilities or of measures calculated to influence morale, or in any other manner whatsoever not authorised by international usage, or
  4. 30
  5. (d) furnishes the enemy with arms or ammunition or with supplies of any description, or
  6. (e) harbours or protects an enemy not being a prisoner of war, shall, on conviction by court-martial, be liable to suffer death or any other punishment provided by this Act."

The case I am asking the Committee to accept is that capital punishment, the death penalty, has ceased to apply outside the armed forces in this country for many years. I am asking your Lordships to treat members of the armed forces in a similar way. Some of your Lordships may say that is essential and crucial, I do not intend to go over the great arguments—and they are great arguments—for or against the death penalty, because there are Members in this Chamber who are far better qualified than I am to argue for or against. However, I should like to draw the attention of your Lordships to exchanges which took place before the Select Committee. I quote from Question 396: 396. I understand it is the policy that the death penalty would not be applied in peacetime? (Lieutenant General Sir John Chapple.) Correct. 397. And yet the death penalty remains on the statute book? (Lieutenant General Sir John Chapple.) Correct. 398. Do I assume, therefore, that the statute remains as it is because the policy might change? (Lieutenant General Sir John Chapple.) Yes. (Mr Facer.) I think partly that and partly the difficulty of defining the point at which peace becomes war. There is considerable difficulty in this area.

I would refer now to an exchange which occurred in Question 452, which reads: 452. So that in what is effectively a peacetime situation soldiers can be executed either in the United Kingdom or in Northern Ireland or, indeed, anywhere in the world, under one of these four headings? (Mr Facer.) It has been made clear that it is not the intention for the death penalty to be invoked in peacetime. We are talking, therefore, about a situation that could not occur.

We also have a later exchange with Mr. Bermingham, who, following the same series of questions, said: 463. Yes. The current policy is that no-one is to be executed, therefore currently no-one would be executed. I think that logically follows? (Mr Facer.) Yes. 464. But it is possible at this moment in time, even though we are in a peacetime situation, for a British serviceman to be sentenced to death for one of these five offences if the offence occurs either in the United Kingdom, Northern Ireland, Belize, Gibraltar—anywhere where there is a British serviceman currently stationed, and he is liable for one of these five offences, if the court sees fit, to be sentenced to death? (Mr Facer.) That is so. (Mr Stuart-Smith.) The reality of the matter is that, as far as I am aware, there has been no such charge since the end of the 1945 war. Whether or not it was done in Korea I do not know. I cannot say with certainty there has been no death penalty imposed. 465. If charges have not been brought since 1945—and we have been through every type of conflict since then—Malaya, Borneo, Korea, Aden, Egypt, Cyprus, West Africa, East Africa, the South Atlantic and Northern Ireland—why do you still need it? (Lieutenant General Sir John Chapple.) We need a good deterrent. There you come back to the arguments about the value or the validity of the death penalty. I do not wish to say anything unkind about the ministry witness, but he said that one of the reasons why we need it is that it is a good deterrent.

We are members of the NATO community, and in that sense we need to have due regard to what our NATO allies do, because I assume they are as concerned as we are with the integrity of our defence and security systems. In a supplementary memorandum supplied by the MoD, on Wednesday, 12th February, the committee was told that Denmark, France, Norway, the Netherlands, the Federal Republic of Germany, Luxembourg and Portugal have abolished the death penalty completely. Spain retains the death penalty for use in wartime only. In Belgium, Canada, Greece, Turkey, Italy and the United States of America the death penalty is available as a sentence on servicemen in peace and in war.

The variations, the reasons and the peculiarities of each country's application of the death penalty are far too long to weary your Lordships with at this time. However, I would say that in 1986, in the light of what has been said in your Lordships' Chamber and in another place and in view of the current state of our law as applied to civilians, particularly in what we term an "all-volunteer armed service", I think it is about time we brought the law of this country as applied to our armed forces up to and alongside the same range of punishments as are available to those in civilian life.

Finally, I should like to mention the lack of seriousness of the nature of the five reasons.

I speak as an ex-serviceman and as someone who would certainly be very willing at any time to defend my country in any manner possible. I am not a pacifist and I can appreciate the seriousness of the situation. But I am talking of what I believe is the enlightened attitude of the British people, not just the attitude of the majority of our NATO allies, and the availability of the death penalty for servicemen who commit those crimes is not acceptable in 1986. I beg to move.

4.30 p.m.

Lord Denning

I think that most of us will have much sympathy with this amendment. There is no reason in principle for distinguishing between military law and our ordinary criminal law. We all know that capital punishment has been abolished for even the most heinous crimes, such as putting a bomb on an aeroplane and killing 300 or more people, kidnapping and the like. Many of us would feel that there ought to be capital punishment, but it has gone and it will not be restored. Should the position be different in the military field?

In the ordinary way, high treason still carries the death penalty, and high treason is still committed in Northern Ireland by those who levy war against the Queen and her realm, as well as against the Grand Hotel at Brighton. But that high treason has not been prosecuted and the charge is murder, which does not carry the death penalty.

If that is the position in the other parts of the law, is it logical or right to keep it for our servicemen? The clause applies not only in wartime but in peacetime, but does not history show how many people—whom others would forgive—deserted in wartime and were punished accordingly? Is there not a strong case for removing the death penalty in these cases also, rather than to have inconsistency in the law?

Lord Elwyn-Jones

I rise to support the amendment and to agree with what the noble and learned Lord, Lord Denning, has just said. The inconsistency between abolition of the death penalty in the most grievous cases where death has been caused in the ordinary civil field and retaining it in the armed forces in regard to breaches of military discipline would be intolerable and unjust. What would be of interest, certainly to me and perhaps to the Committee, would be to know whether in the last war, from 1939 to 1945, there were, in practice, any death penalties carried out.

At the end of the war, I had the responsibility of being a Judge Advocate and I remember one famous mutiny trial where there was a refusal to pass the death sentence. I had better not go into more detail than that; otherwise, I shall be breaking the oath of secrecy. But if there was a case in the last war it would surprise me. The Minister has now indicated that there may have been a case or two and they would have been quite contrary to the feelings of those in the armed forces at the time. That is all I can properly say.

But at any rate, as a matter of consistency, the death penalty should go. I venture to think that we should be the only country in Europe, even in conditions of military law, retaining the death penalty. As the noble and learned Lord has said, high treason is something that is remote and not enforced. For instance, murdering the Lord Chancellor in the exercise of his duty—he is not here to be worried by this information—carries not only the death penalty but the penalty of beheading. That was the mediaeval law which is still the law of this country. Whether that will comfort the present Lord Chancellor—it certainly did not comfort me in any way—is, of course, another matter. But, seriously, it is time this went out of the code of military law as well, and I hope that the Committee will approve and carry the new clause.

Lord Mayhew

Logic seems to be wholly on the side of those who are seeking to amend the Act and the difficulties of the practical application of the Act, too. We might conceivably arrange a hanging or even a shooting, but a beheading as recommended by the Act for the murderer of a Lord Chancellor would present quite exceptional difficulties of an ethical, political and humanitarian kind.

This is a familiar debate on which views are constantly expressed in both directions within each party. That is the case today—certainly with my noble friends and myself—and I am speaking for myself when I say that I find the logic on one side. But, at the same time, one can argue both ways about the fact that it is inconceivable to use this penalty, it has never been used and it has never been invoked since the end of the war in 1945. It could be argued that is therefore out of date and should be removed, but it could also be argued that it has served as an extremely effective deterrent.

The one thing that reassures me is that we no longer apply the death penalty to a whole range of military offences to which it was applied earlier. We have grown up in a literary tradition. We have read books and poems and we have witnessed plays in which the execution of soldiers was carried out for acts of cowardice or desertion. We are not, of course, discussing those now. We are discussing only the possible hypothetical use of the death penalty in cases of active assistance to the enemy and of deliberate treachery. Therefore, I think it is not a matter on which it is easy to be dogmatic on one side or the other.

Lord Kennet

May I rise on a point of information? It would greatly assist some of us if the Minister could give an authoritative list of the democratic countries which retain the death penalty in their armed forces and those which do not.

Lord Trefgarne

May I say at the outset that I do not have all that information in front of me, but I shall be happy to try to find it and let the noble Lord have it. That means that a copy of my letter to the noble Lord will go automatically to the Library.

May I at the outset confirm my nod to the noble and learned Lord, Lord Elwyn-Jones, about events during the second world war? There were, I understand, three officers who were executed in this way during the second world war. All three cases took place in 1942 and I understand arose from the same incident.

It might be helpful if I now begin by setting out the provisions in the Service Discipline Acts under which the death penalty could still be applied. The first and most fundamental point is that the death penalty can only be applied where the offence is committed with the deliberate intention of assisting the enemy or, where mutiny is concerned, with the deliberate intent to avoid or impede operations against the enemy.

Where this deliberate intention of assisting the enemy or avoiding or impeding operations against the enemy is present, there are now only five offences in the Service Discipline Acts that carry the death penalty as the maximum penalty available. These are misconduct in action, assisting the enemy, obstructing operations, mutiny and failure to suppress mutiny.

I have just been reminded that I did not quite get it right when I was replying to the noble and learned Lord, Lord Elwyn-Jones, just now. It is indeed the case that three people were executed during the second world war for offences arising out of the same incident, but they were not, I understand, officers as I inadvertently led your Lordships to imagine just now.

But, returning to the main issue, the 1981 Select Committee of another place looked at these five offences in some detail and accepted that the death penalty should be retained as the ultimate punishment where there was a deliberate intention to assist the enemy. I should stress that we are talking only about a maximum discretionary punishment. For these five service offences the death penalty is never mandatory.

We also looked very carefully at the question of retaining the death penalty in relation to these five offences and we concluded that we should. The issue was also examined by the 1986 Select Committee of another place which took both oral and written evidence on the subject. The noble Lord, Lord Graham, referred to that during the course of his remarks. Its conclusion, rightly in my view, is that no change should be made. I must stress that the death penalty could be applied to a serviceman only in circumstances where the offence is tantamount to the civilian criminal offence of treason, for which capital punishment is still mandatory.

Treasonable activity within the ranks of the armed forces in war would undoubtedly be a crime of the utmost seriousness. If committed, it would almost certainly lead directly to the loss of the lives of other servicemen performing their operational duties bravely and trusting in the loyalty of those serving with them. The service chiefs are unanimous and clear that it is right to retain the death penalty for offences tantamount to treason and the Government share that view. The noble Lord, Lord Mayhew, towards the end of his remarks indicated that this was a matter of more than usual complexity and difficulty, and I hope therefore that the noble Lord will not wish to press his amendment on this occasion.

Lord Graham of Edmonton

I am obliged to the noble Lord the Minister for his remarks, but I am somewhat puzzled because I am still unclear as to the extent to which mutiny is capable of being defined or understood. In my view what the Minister has said is not on all fours with the words that appear in the 1955 Act.

I come back to the case that I made at the beginning. We are concerned to have in the Bill something that does not act as a deterrent, but which has meaning and purpose. This Chamber is well experienced not only in looking at changes over 40 years but also in not wanting the law to be brought into disrepute. As the noble and learned Lord, Lord Denning, said, we are talking in terms of horrendous situations. I take the Minister's point about a serviceman who, by an act of the kind that is listed, causes the death of his comrades in whatever circumstances; certainly when they are relying upon him that is an absolutely horrendous crime. But as the noble and learned Lord, Lord Denning, pointed out, these days there are equally horrendous crimes carried out by civilians which do not carry the death penalty. What the Minister has to prove is that in the circumstances in which members of the armed forces are serving they need to be treated separately. So far as I am concerned this is a right and proper time to test the view of the Committee and I intend to press the amendment.

4.44 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 76; Not-Contents, 116.

Amherst, E. David, B. [Teller.]
Ardwick, L. Davies of Penrhys, L.
Banks, L. Denington, B.
Birk, B. Denning, L.
Blease, L. Donaldson of Kingsbridge, L.
Boston of Faversham, L. Elwyn-Jones, L.
Bottomley, L. Ennals, L.
Bruce of Donington, L. Ewart-Biggs, B.
Caradon, L. Falkender, B.
Carmichael of Kelvingrove, L. Feversham, L.
Cledwyn of Penrhos, L. Fitt, L.
Gallacher, L. [Teller.] Paget of Northampton, L.
Galpern, L. Phillips, B.
Graham of Edmonton, L. Prys-Davies, L.
Grimond, L. Ritchie of Dundee, L.
Hampton, L. Rochester, L.
Harris of Greenwich, L. Seear, B.
Hatch of Lusby, L. Shepherd, L.
Henderson of Brompton, L. Silkin of Dulwich, L.
Houghton of Sowerby, L. Stallard, L.
Hughes, L. Stedman, B.
Hunt, L. Stewart of Fulham, L.
Jeger, B. Stoddart of Swindon, L.
Jenkins of Putney, L. Strabolgi, L.
John-Mackie, L. Taylor of Blackburn, L.
Kennet, L. Taylor of Gryfe, L.
Kilbracken, L. Taylor of Mansfield, L.
Listowel, E. Tordoff, L.
Llewelyn-Davies of Hastoe, B. Underhill, L.
Lloyd of Kilgerran, L. Wallace of Coslany, L.
Lockwood, B. Walston, L.
Longford, E. Wells-Pestell, L.
Lovell-Davis, L. Whaddon, L.
Masham of Ilton, B. White, B.
Mishcon, L. Wigoder, L.
Molloy, L. Willis, L.
Mulley, L. Winchilsea and Nottingham, E.
Nicol, B.
Oram, L.
Alexander of Tunis, E. Hooper, B.
Alport, L. Hunter of Newington, L.
Arran, E. Hylton-Foster, B.
Attlee, E. Ilchester, E.
Belhaven and Stenton, L. Kimball, L.
Bellwin, L. Kinloss, Ly.
Belstead, L. Kinnaird, L.
Bessborough, E. Lane-Fox, B.
Blake, L. Lauderdale, E.
Boyd-Carpenter, L. Lawrence, L.
Brabazon of Tara, L. Layton, L.
Brougham and Vaux, L. Long, V.
Broxbourne, L. Lucas of Chilworth, L.
Bruce-Gardyne, L. Lurgan, L.
Buckinghamshire, E. Lyell, L.
Butterworth, L. Macleod of Borve, B.
Caithness, E. Macpherson of Drumochter, L.
Cameron of Lochbroom, L.
Campbell of Alloway, L. Mancroft, L.
Campbell of Croy, L. Manton, L.
Constantine of Stanmore, L. Mar, C.
Cox, B. Margadale, L.
Crawshaw of Aintree, L. Marley, L.
Cromartie, E. Maude of Stratford-upon-Avon, L.
Cross, V.
Cullen of Ashbourne, L. Merrivale, L.
Davidson, V. Mersey, V.
Dilhorne, V. Mountgarret, V.
Donegall, M. Murton of Lindisfarne, L.
Dowding, L. Newall, L.
Drumalbyn, L. Orkney, E.
Eden of Winton, L. Orr-Ewing, L.
Ellen borough, L. Pender, L.
Elliot of Harwood, B. Plummer of St Marylebone, L.
Elliott of Morpeth, L.
Elton, L. Porritt, L.
Faithfull, B. Portland, D.
Ferrers, E. Rankeillour, L.
Fortescue, E. Renton, L.
Fraser of Kilmorack, L. Rodney, L.
Gainford, L. St. Aldwyn, E.
Gibson-Watt, L. Saint Brides, L.
Glanusk, L. St. Davids, V.
Glenarthur, L. Sanderson of Bowden, L.
Gray of Contin, L. Sandford, L.
Grey, E. Sandys, L.
Gridley, L. Savile, L.
Hampden, V. Sempill, Ly.
Hanworth, V. Shannon, E.
Holderness, L. Skelmersdale, L. [Teller.]
Hood, V. Soames, L.
Sudeley, L. Vivian, L.
Swansea, L. Ward of Witley, V.
Swinfen, L. Westbury, L.
Swinton, E. [Teller.] Whitelaw, V.
Thorneycroft, L. Wise, L.
Trefgarne, L. Wynford, L.
Trumpington, B. Young, B.
Vaux of Harrowden, L. Zouche of Haryngworth, L.
Vickers, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.53 p.m.

Lord Graham of Edmonton moved Amendment No. 5: After Clause 4, insert the following new clause:

("Abolition of exemption of Services Acts under Sexual Offences Bill 1967.

. After section 19 of the 1981 Act, there shall be inserted the following section— 19A. Subsection (5) of section 1 of the Sexual Offences Act 1967 shall cease to have effect.".").

The noble Lord said: This amendment seeks, as do a number of other amendments in my name, to apply to members of the armed forces the same conditions, rights and freedoms, wherever possible, as are currently enjoyed by those who are not members of the armed forces. This amendment seeks to apply all the conditions contained within the Sexual Offences Act 1967 to the armed forces.

Again, we are indebted to an extremely useful range of arguments that were deployed in the committee. I make no party point and certainly no party animus was raised in that committee; just as there is none in this House and in the other place whenever the question of sexual freedom or the way in which sexual offences are held to be criminal acts are discussed. I am certain that the same will apply during our discussions in this Committee.

I summarise for the benefit of the Committee the arguments that were put by the Ministry of Defence experts. Let me say that we are not arguing about what they said but about what the committee did; because the majority of the committee accepted their arguments. I believe I have been guilty more than once of saying that what I was opposing was what the MoD witnesses said, whereas, quite properly, I am now arguing against the conclusions of the committee.

They are summarised in a number of ways. First, one of the reasons given why members of the armed forces need to be treated separately is that they live in closed communities. Apparently they are the only people who live in closed communities, but that is one of the central arguments used—that there are conditions, an ambience, an environment which are peculiar to the armed services which are not applicable elsewhere. Secondly, the argument is that one needs to have an arrangement whereby there is absolute trust and confidence between all ranks. I should have thought that there needs to be absolute trust and confidence between all levels of management and in a hierarchal society; not merely in the armed forces but in many other organisations. However, one of the arguments put forward is that one needs to respect and build upon, not destroy, absolute trust and confidence. The other argument was that the potentially destructive influence of homosexual practices should be excluded from the environment. If one looks at the words, that is given as the basic reason.

I intend to deploy my arguments by making several quotations, and this raises one of the aspects of the Bill which causes me the greatest puzzlement. It is very difficult, reading the statements of the witnesses—and it is upon the evidence of the witnesses that the committee came to its conclusions—to believe that one is on the same wavelength when going from one page to another. They shift all over the place. There is no black and white or hard and fast way to look at the matter. If one looks at the evidence one can become very confused. For example, the chairman of the committee said to Mr. Stuart-Smith: Is homosexuality as such, as opposed to homosexual acts, illegal under the Armed Forces law? The answer is "no", it is not illegal per se, to be a declared homosexual. It is not even illegal in some circumstances to be a practising homosexual because, as evidence shows, exceptions are made.

The question of disclosure, the question of consideration, the question of punishment—if that is the right word—when these matters come forward is a matter of judgment. One commanding officer may well come to a different conclusion from another. In some of the evidence which is attached to the report given by some of the organisations—and I respect the fact that they are much closer to these issues because they speak to the people who have been aggrieved and badly treated—one can see that there is a variety of ways in which the services seek to react to a revealed set of circumstances.

On page 183 of the committee's report Mr. McNamara asked: When you say that most persons convicted of an offence would be discharged, what would be the exceptions when a person would be maintained in the Service? Mr. Facer replied: It would depend very much on the nature of the offence. In other words, one can make a subjective judgment. It depends; it is what one determines. I assume that this means that the view that is held by an individual with authority and power can apply differently in the same circumstances. Mr. Facer used the words "it would depend very much on the nature"; so one then gets into the argument of who precisely and exactly defines what is the nature of the offence.

Then Mr. McNamara asked: What are the circumstances, then, whereby a person who has been found guilty under service law of a homosexual offence would be retained? In other words, it is not an offence to be homosexual. We now know that it is not an offence to commit a homosexual act under some circumstances. Mr. Facer said: Well, there might be cases where the offender was a relatively young Serviceman where he made perhaps a voluntary confession that he indulged in some homosexual practice which was perhaps not of the most serious kind". One has to apply one's own assessment of what is meant by the phrase "not of the most serious kind". I shall be told by the Minister whether I am right or wrong, but apparently someone, perhaps the commanding officer, exercises judgment in those circumstances. Mr. Facer continued: It is very difficult again to be hypothetical because each case is considered in the circumstances of the case".

So each case is considered separately. We all know that, where there is only one arbiter or where the law is capable of being interpreted or applied in different ways, it is inevitable that for the same crime (if that is what it is) different levels of punishment will be meted out.

I should like to draw the attention of the Committee to some more words of Mr. McNamara: You say that the 'nature of service operations means that absolute trust and confidence within and between all ranks is essential and any activities, such as homosexual practices, which might disrupt such trust and confidence must be avoided'. That is one of your main arguments? Why do you not court martial for adultery between a serving man and perhaps the wife of another serving man, or between husbands, putting it in the other context?". Mr. Stuart-Smith said: In certain circumstances, where there was a rank of difference"— in other words, it depends not on the act but on the differentiation between the rank of those involved— I would not be prepared to say a charge would not be brought on the basis of conduct prejudicial to good order and military discipline". There is the gravamen. In fact the charge ought to be, conduct prejudicial to good order and military discipline not whether a man is homosexual or a practising homosexual; but in whatever circumstances, whatever the conduct, whether that conduct is held to be prejudicial to good order and military discipline.

5 p.m.

If we are concerned with trust and confidence, which is one of the bases on which this view is held, we all know very well that the grave matters of disunity, distress, distrust and lack of confidence can be brought about by sexual acts which are not homosexual in nature. They can be sexual acts between a man and a woman; and one party may not necessarily be a serving officer, non-commissioned or otherwise. One may be a civilian. Those involved may be two members of the armed services, or the act may involve a man and the wife of another serving officer. So we have an enormous confusion as to precisely who and what are caught or held to be liable under this particular criterion.

I turn now to the point that I was making earlier about the relationship being a criminal offence. Mr. McNamara asked: I accept that entirely, and there would be reason for charging a person with conduct prejudicial to good order and military discipline, but why not charge him with conduct prejudicial to good order and military discipline; why make homosexuality per se as a relationship a criminal offence? Mr. Facer replied that the offences were not defined as "homosexuality" but that they were defined in a slightly different way and Mr. Stuart-Smith said that they were defined as "disgraceful conduct of an indecent kind".

So, something which is legal and permissible outside the armed forces—homosexuality between two consenting adults in private—when it takes place between one or two members of the armed forces is held to be disgraceful conduct of an indecent kind. In simple equity, let alone in justice and humanity, I believe that we ought not to tolerate a situation in which that is the law of the land. As far as I am concerned there is a conflict; other members of the Committee who take part in this debate will clearly have their own personal points of view. Let me say again that this evidence is crucial. Mr. McNamara, a member of the Committee, asked: I am not saying that I necessarily disagree with that as a definition of such acts, but what I am asking is why you treat it as an offence when you can treat it in other ways? You are taking action and saying that purely and simply it is an offence. It is an offence if he is a member of the Armed Forces but not if he is a civilian; if he does it away from his place of duty it is an offence, or if he does it in private it is an offence; if he does it with somebody who has no association with the Armed Forces at all it is an offence. Why? Mr. Facer replied: There is an argument here for deterrence; we are trying to prevent actions which are detrimental to service discipline and operational effectiveness, and the existence of the specific provision is helpful in this respect.

I know that the Committee clearly has its own views on this matter, as indeed on other matters. We are the people who can retain the law or change it. We can change it by accepting my amendment. I simply plead in aid the evidence that was given to the committee by the National Council of Civil Liberties on this issue, who said: Homosexual acts are an offence for members of the armed forces, an anomaly, when compared to the law relating to the rest of society. Homosexual men and women often face harassment both official and unofficial. The organisations At Ease and Campaign for Homosexual Equality have details of individual cases where a person suspected of being homosexual has had his or her possessions and lockers searched by the Military Police and diaries and letters taken and the names therein recorded. Such harassment can have a profoundly disturbing effect on the individual under suspicion. Recently a 21 year-old private in the King's Regiment was convicted and jailed for life after strangling a friend who had threatened to tell the army about their homosexual affair. Sentences of 9 months imprisonment for merely having a homosexual affair are not unknown. Such conduct would not be punishable under the general law. In the NCCL's view there is no justification whatsoever for the persecution under military law of homosexual men and women. We have stressed that civil liberties for servicemen should not differ from those of civilians without good reason".

I am satisfied not only by my own predilection for the arguments—which I have studied perhaps with rather less care than I should have wished before coming to the Committee—but also on the basis of the evidence put before the Committee. In the light of the current law, which as I understand it is not seriously challenged in either House, I cannot believe that a case has been made out for maintaining the non-application of the law to members of the armed forces. That is why I have put forward my amendment. I beg to move.

Lord Denning

Throughout history society has condemned homosexuality. Those members of the Committee who know the Bible will remember Lot's wife and how the vengeance and punishment of God came down on the cities of Sodom and Gomorrah—and sodomy has remained the name given to this offence. At common law it was called the abominable crime of buggery. I have tried non-commissioned officers and sentenced them to three years for it, because, certainly in the armed forces, it is detrimental to discipline and good order, destructive of morality and certainly to be condemned.

In the law, all that was altered in 1967. I remember it, and the debates that we had on it. Section 1 of the 1967 Act states: a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years". Is that to apply to the Army, Navy and Air Force? Is the only difference to be whether the man is just over or just under 21, when the sergeant or the sergeant-major may be 29, with these youngsters being 19, 20 or 21? We are getting into ridiculous distinctions.

I am pretty sure—and I have known many of them—that generals, admirals and air vice-marshals would certainly retain the offence. It is necessary to maintain the morale, the sense of dignity and the efficiency of the armed forces. I hope that the amendment will not be accepted.

Lord Mayhew

Once again the noble Lord, Lord Graham, has moved an amendment which I think he will agree is not a party matter. Any remarks that I may make now are simply on my own behalf. The first point that I would dispute in his admirable introduction, with great respect, is where he implied that there is no environment peculiar to the armed forces; that somehow the same atmosphere must exist in civilian as in service life. I believe that there is a profound difference in the atmosphere and environment of service life. We cannot get away from that. The armed forces are for a particular purpose, and they must be efficient for that purpose. They cannot necessarily be a mirror of our civilian society and fulfil the purpose for which we maintain them. That affects the issue that we are discussing on the amendment.

I agree with the noble Lord in that I do not believe that the Ministry of Defence witnesses to the Select Committee made out a very logical or persuasive case. We are discussing what kind of homosexual relationship or conduct, if any, should be permissible which is not prejudicial to good order and discipline. We all agree that homosexual behaviour and relationships which are prejudicial to good order and discipline are already dealt with, and no one is arguing about that at all. I think the noble Lord is raising the question of homosexual behaviour or relationships which are not prejudicial, and is asking: should they be permissible?

As a serviceman, I find it almost impossible to conceive of an open homosexual relationship or homosexual conduct which would not be prejudicial to good order and discipline. I am sure that many of us here would have had experience of active service as servicemen. I am speaking entirely for myself, but I cannot believe that most servicemen on active service would want to share their crowded billets with a pair of either heterosexual or homosexual lovers. I do not believe it, and I think that that is a perfectly reasonable attitude. It is not a matter of prejudice: it is simply a matter of common sense. It is what I would have felt myself.

I should like to hear from the noble Lord what is the homosexual relationship or conduct which is not prejudicial and which he thinks should be allowed. As a serviceman I find it difficult to envisage that. However discreet the heterosexual or homosexual relationship was, in conditions of active service it would be disruptive, would create tensions and would not be wanted. I ask myself whether the armed forces want us to move the amendment. I have no evidence of that at all. What I still know about the armed services suggests to me that they would not wish this amendment to be passed. That being so, on what grounds are we to impose our views on these matters on the armed services? With the most liberal interpretation possible, I do not think that this is a genuinely liberal amendment.

5.15 p.m.

Lord Marshall of Leeds

I very much admired the speech of the noble Lord, Lord Mayhew. Anyone who is attracted to the idea by some correlation between civilian life and life in the armed forces is severely misleading himself. In civilian life a person has the right to refuse to do something that someone else asks him to do. In the services one cannot without retribution refuse to carry out the terms of an order. Life is very different in civilian life from that in the armed forces.

In 1945 I spent many days defending a WO(1) at general court martial for that alleged offence in respect of nine private soldiers. That offence, of course, was absolutely prejudicial to good order and military discipline. I was fortunate enough to obtain his complete acquittal. I think he had been framed. But it was proper that the prosecution was brought at general court martial. Nothing runs like a virus through the services, or through any other body of men living together, as much as homosexuality. For that reason alone I very much oppose the amendment.

Lord Trefgarne

I think the aim of the noble Lord's amendment is to remove the statutory provision which enables homosexual practices on the part of members of the armed forces to be charged as offences against the service discipline Acts. At present the position is that under the services discipline Acts all homosexual practices involving service personnel continue to be offences regardless of the sex, age or willing consent of those involved. Section 1(5) of the Sexual Offences Act 1967, which otherwise permitted sexual acts between consenting adult males in private, specifically reserves the position.

The exemption of the armed forces was in recognition of the unique circumstances of service life. Servicemen and servicewomen serve in conditions where, both on and off duty, they are unavoidably living in closer proximity and sometimes under stress. In addition, service life, particularly in demanding operational circumstances, requires absolute trust and confidence among all servicemen, based on disciplined and professional relationships. The amendment proposes a more permissive approach to homosexuality which both the services and the Government are clear would not be in the interests of the good discipline or the professional efficiency of the service as a whole.

The Select Committee of another place considered this issue fully, receiving evidence from the Ministry of Defence and bodies in favour of allowing a more permissive approach to homosexuality in the armed forces. The committee concluded in paragraph 25 of its report that it would not be wise to change the existing law. The Government agree firmly with that conclusion, and I hope that your Lordships will likewise agree with it.

Lord Graham of Edmonton

I was hoping for at least one supporter, but I did not hear one.

Lord Trefgarne

I am afraid not.

Lord Graham of Edmonton

No, but the arguments deserve to deployed. I was intrigued by the noble and learned Lord, Lord Denning, who disclosed passionately where he stands on the issue. If he had been in this Chamber or in another place in 1967, he would have voted against the law of the land. The impression he gave, which I am sure the Official Report will reveal, was that since 1967 the law has been different from the views of the people. The general feeling was the the act was heinous and intolerable. Since 1967 society has believed that under certain circumstances it is acceptable. We are arguing about whether members of the armed services should be entitled to conduct themselves in the same manner as civilians.

An intriguing point made was about the nature of the closed unit in which homosexuality would be disruptive. The closed unit of 1945 is different from the closed unit of 1985. The nature of the people who serve in it has changed. There are men and women. There are far more women now than men. Far more women were on active service in 1985 than in 1945. I venture to suggest that conduct of a sexual nature—not homosexuality—which might cause disruption goes on in many units. It is known to other people. It occurs between two lovers—one man and one woman; but we are talking about two lovers who are both men.

We are talking about a sexual act between two people in a closed unit—not the barrack room—which is not disruptive. Permissiveness, promiscuity and adultery apparently do not worry people, but the sexual act between two male lovers or two female lovers is apparently not merely likely but certain to damage the viability and fighting capability of a unit. I beg leave to doubt that.

The noble Lord, Lord Mayhew, asked if we know whether the armed services want this change. I have no knowledge of it. We shall be dealing with trade union membership later. As legislators we are made privy to what the armed services want not just on this matter but on a range of other matters.

Earlier I said that a witness had said that one of the reasons for not permitting homosexuality in the forces was that they are a closed society. With respect, I did not say that there were other closed societies; I said merely that the armed services were not the only closed society. Prisons are not governed by laws similar to those relating to the armed services. I stand to be corrected if I am wrong, but I believe that they are in a different category. There are many communities outside the armed services, for example, the universities, which are looked upon as closed communities. The witnesses used the phrase "a closed community". In those communities there is freedom for people to act as they wish.

The noble Lord, Lord Mayhew, was right when he said that I was talking about the extent to which one could remove taboos and allow two people, men or women, to act differently from heterosexuals and still not endanger good order and discipline. I appreciate that that matter is not easy to define.

I am grateful to the Committee and to the noble Lord the Minister for having taken part in this short debate. I may well reurn to the issue on Report, but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 5 to 7 agreed to.

Lord Graham of Edmonton moved Amendment No. 6: After Clause 7, insert the following new clause:

("Power of Secretary of State to set time limits in relation to preliminary stages of courts-martial proceedings.

. After section 103 of the 1955 Acts and section 58 of the 1957 Act, there shall be inserted the following section— (1) Without prejudice to section (Provisions for avoiding delay after arrest) above, the Secretary of State may by regulations make provision, with respect to any specific preliminary stage of proceedings for an offence, as to the maximum period—

  1. (a) to be allowed to the prosecution to complete that stage;
  2. (b) during which the accused may, while awaiting completion of that stage, be detained in military custody in relation to that offence.
(2) The regulations may, in particular—
  1. (a) be made so as to apply only in relation to proceedings instituted in specified areas;
  2. (b) make different provision with respect to proceedings instituted in different areas;
  3. (c) make such provision with respect to the procedure to be followed in courts-martial proceedings as the Secretary of State considers appropriate in consequence of any other provision of the regulations; and
  4. (d) make such transitional provision in relation to proceedings instituted before the commencement of any provision of the regulations as the Secretary of State considers appropriate.
(3) The Defence Council may, at any time before the expiry of a time limit imposed by the regulations, extend, or further extend, that limit if it is satisfied—
  1. (a) that there is good and sufficient cause for doing so; and
  2. (b) that the prosecution has acted with all due expedition.
(4) Where, in relation to any proceedings for an offence, an overall time limit has expired before the completion of the stage of the proceedings to which the limit applies, the accused shall be treated, for all purposes, as having been acquitted of that offence. (5) Where—
  1. (a) a person escapes from military custody before the expiry of a custody time limit which applies in his case; or
  2. (b) a person who has been released in consequence of the expiry of a custody time limit fails to surrender himself into military custody at the appointed time;
the regulations shall, so far as they provide for any custody time limit in relation to the preliminary stage in question, be disregarded.
(6) Where—
  1. (a) a person escapes from military custody; or
  2. (b) a person who has been released fails to surrender himself into military custody at the appointed time;
the overall time limit which applies in his case in relation to the stage which the proceedings have reached at the time of the escape or, as the case may be, at the appointed time shall, so far as the offence in question is concerned, cease to have effect.
(7) In this section—

The noble Lord said: I believe that this amendment will be acceptable to the Minister.

Lord Trefgarne

The noble Lord is wrong.

Lord Graham of Edmonton

Even if I am wrong, I shall continue with my attempt. We are seeking to apply to service life as much as possible of what applies to civilian life. My case was made by the noble Lord, Lord Elton, when on Second Reading of the Prosecution of Offences Bill on 29th November, 1984, he said: The third of the principal innovations to be brought about by the Bill gives effect to our commitment to move towards a system of statutory time limits in criminal proceedings. Your Lordships will remember how, throughout the proceedings on the Police and Criminal Evidence Act, we considered a great many difficulties and anomalies, many of which concerned the way in which a suspected offender is taken into the criminal justice system and how he is handled thereafter. We gave each of these questions our close and detailed attention in turn… Our proposal is to prepare for the development, trial and improvement of a set of statutory limits to the length of time that can be spent on the preliminary (that is to say, the pre-trial stages) of criminal prosecutions. These stages are fairly complex and the considerations can vary widely from case to case. Moreover, the concept that we wish to apply is new to English law…What the Bill does therefore is to set up an order-making power and a framework within which it can be exercised. When that framework is in place, the Home Secretary will use the power in the light of the results of the field trials which he will conduct".—[Official Report, 29/11/84; col. 1016.] At a later stage of the Bill, on 24th January, the noble Lord, Lord Donaldson, said: The effect is a perfectly simple one. It will be a choice between two evils: would you rather have a large number of people kept in prison when they should not be there or would you rather have an approximately similar number of people out on bail for longer than they would otherwise be? It is as simple as that. You can do one or the other. My view is that the evil of keeping in prison people who should not be there is worse than the acknowledged evil of putting people back on bail in order to bring other cases forward".—[Official Report, 24/1/85; col. 418.] Although the amendment, suggested to me by an eminent outside body, is lengthy, it may contain errors in drafting. In essence I seek to have applied to those who face charges in service life the same law that applies to non-service personnel. I beg to move.

5.30 p.m.

Lord Trefgarne

I appreciate that the noble Lord's intention in putting down this amendment is to bring service law into line with the provisions which apply to the prosecution of offences in England and Wales. As the noble Lord made clear, his amendment is based very closely on Section 22 of the Prosecution of Offences Act 1985. That section enabled the Home Secretary to make regulations concerning time limits for trial in the civilian criminal courts in England and Wales. It was an entirely new departure, since previously there had been no provision to apply time limits of this nature. In this respect, the general criminal law differed from service law and regulations which already contain a number of provisions designed to avoid delays in bringing cases to trial and lengthy periods in custody prior to trial. These provisions include regulations which ensure that charges must be investigated quickly without avoidable delay. In the case of the Army and Royal Air Force a person must be brought before his commanding officer and charged within 48 hours of being arrested. This compares with the 96-hour maximum available to the civilian police under the Police and Criminal Evidence Act 1984. There are also provisions which ensure that if an accused person is held for more than eight days without a trial being begun, this fact must be reported to higher authority. In the case of the Army and Royal Air Force there is provision that a person should not be held under arrest for more than 72 days pending trial without permission from higher authority. The higher authority in that case is myself. In the case of the Navy the equivalent provision is for up to 90 days. I stress that these provisions already exist under service law and regulations and their effect is to ensure that trials under service law are not unduly delayed.

I should also explain that these provisions are kept under review and that my department is certainly not averse to the consideration of ways in which these procedures could be improved and strengthened. Consequently I may say that I have found the noble Lord's amendment to be very interesting and I can assure him that it is something that we will wish to keep in mind for the future. However, as he will no doubt be aware, my right honourable friend the Home Secretary has as yet made no regulations under the relevant section of the Prosecution of Offences Act. I understand that trials are at present under way in four selected areas and that these trials will continue until the end of next month. Thereafter the results will be carefully analysed before the next step is determined.

My department will be interested in the outcome of these trials and of any further developments in this area of the civilian criminal law. Once the way ahead in this area is clear we shall of course wish to consider whether to adapt them to the rather different procedures of service law and the best way of doing so, bearing in mind the provisions which already exist in service law. In the meantime I believe that it would be premature to tie service law to procedures reflected in the noble Lord's amendment. These procedures were developed specifically for the civilian criminal law and, as drafted, would be unworkable in relation to service law. With that explanation of our objections to his amendment and my assurance that this is a matter which we shall wish to keep under close review, I hope the noble Lord will feel able to seek leave to withdraw.

Lord Elwyn-Jones

The decision to include in the Prosecution of Offences Act time limits for the bringing of prosecutions was a very important development in our criminal law and our criminal system. The Committee will be reassured by the noble Lord, Lord Trefgarne, saying that in the light of the trials and experimental investigations of how this has worked in the civil field he will be prepared to consider the possible application of the same kind of controls in the field of military law. There are time limits already, as the noble Lord has said, in some aspects of military and naval proceedings. I hope that my noble friend will be encouraged by the assurance that what is happening in the civil field will be carefully considered before the next version of the Armed Forces Bill comes up, or possibly before that, in respect of a similar application to proceedings in naval and military courts.

It is intolerable, and has been intolerable in the past, that those awaiting trial can be kept waiting for month after month. Scotland long ago set a limit on the time given to prosecutors. It is important to carry this reform through to the military field. After all, many of these prosecutions result in acquittals. It is not always that the police or the prosecuting authorities get the right man. It is right in principle that what has been done in the civil field should also be sought to be done here. I hope therefore that my noble friend will not press the amendment to a Division.

Lord Graham of Edmonton

My noble and learned friend is right. I am grateful to the Minister for pointing out some good reasons as to why it would be wrong to carry this amendment. If the purpose of bringing this forward is to permit a march on all fours with civilian legislation, we have to provide the appropriate Government Ministers with the opportunity to reflect. I am grateful also to the Minister for saying that at first sight there are perhaps some aspects of the amendment that may commend themselves to Ministers. Those outside the Committee will read what the Minister has said and will guide me as to the actions they might wish to take. My advice to them is that they should not look a gift horse in the mouth. The half promise that we have been given by the Minister that he will look sympathetically at the matter is, I suspect, the best offer that I will be given today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 8 to 10 agreed to.

Lord Graham of Edmonton moved Amendment No. 7: After Clause 10, insert the following new clause:

("Non-custodial sentencing.

.—(1) In Schedule 5A to each of the 1955 Acts and Schedule 4A to the 1957 Act, in paragraph 10(1) (custodial orders in respect of offender under 21 but not less than 17 years of age), and subsection (1) of section 71AA of the 1955 Acts and section 43AA of the 1957 Act (young service offenders: custodial orders)—

  1. (a) at beginning insert the words "Subject to paragraph (1A) below,"; and
  2. (b) at end there shall be inserted the paragraph—
(1A) The Court may not pass a sentence of imprisonment or make an order under paragraph (1) above unless it is of the opinion that no other method of dealing with the offender is appropriate because it appears to the court that he is unable or unwilling to respond to non-custodial penalties, or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified".").

The noble Lord said: The noble Baroness, Lady Faithfull, as always in respect of these matters, is in her place. It was during the passage of the Criminal justice Bill on 22nd June 1982 that the noble Baroness moved an amendment—at five o'clock apparently, according to Hansard—which read: because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified".—[Official Report, 22/6/82; col 944.]

Those who have read with care my amendment and those who listened with equal care to the amendment moved by the noble Baroness, Lady Faithfull, will see that this is again an attempt to make the machinery of justice inside the forces the same as it is outside. The noble Baroness will be delighted that what she proposed has now become law, although she could not have been so delighted that she had to divide against the Government on that occasion. However, she carried the day against the Government by 102 votes to 81. I hope very much that the Minister will not be minded to stand in the way of this amendment or I presume in the way of the noble Baroness, Lady Faithfull.

I say with the utmost sincerity that this is a matter, widely understood by many Members in this Chamber, that has to be considered in the light of the prison population and also in the light of current considerations that are going on as to the level of recourse in this country, in comparison with others, to custodial sentences and the consideration of alternatives to custodial sentences in the non-service area. Surely it is not unreasonable for us to attempt to follow the same avenue in the Bill. On page 1526 of the Criminal Justice Act the amendment which the noble Baroness moved is there in the Statute. I very much hope that the Minister will tell us that this is something which he is prepared to consider. I beg to move.

Baroness Faithfull

I must respond to the noble Lord, Lord Graham of Edmonton, and thank him for what he has said. I have given notice of intention to oppose the Question whether Clause 11 stand part of the Bill, and the noble Lord, Lord Mayhew, has done the same. Perhaps I may speak to the two matters—Amendment No. 7 and Clause 11—together rather than speak twice.

As I understand the clause, it gives a court martial or a standing civilian court dealing with children of service families abroad the power for the first time to pass custodial sentences of up to 12 months on boys of 15 and 16. Perhaps I may speak to that.

The noble Lord, Lord Graham, is quite right that I moved an amendment to what is now the Criminal Justice Act 1982. I am very puzzled by the clause in the Bill because it is completely contrary to the policy of the Department of Health and Social Security concerning young people. I am not one who in the other discussions we have had has said that everything in the forces should stand alongside the civilian life. But where children and young people are concerned it is a slightly different matter.

Under the Children and Young Persons Act 1969, the Children Act 1975, and—as the noble Lord, Lord Graham, has said—the Criminal Justice Act 1982 the movement has been away from custodial care towards care in the community, remaining with families and helping families to take the responsibility for their children. This clause in this Bill is completely contrary to the policy put forward by the Department of Health and Social Security. May I therefore ask with the utmost diffidence whether the Ministry of Defence has been in touch with the Department of Health and Social Security, and which one—I was going to say—won; or were they not in touch with one another over this clause?

With regard to the well-being of the children, for custodial sentences to be passed, and for children to be brought to England away from the country where their parents are stationed, to a place where the parents and relatives of the child may not be living, would be a great disservice to the childen and would not help those who have committed offences. It is perfectly true that in this country rather than a custodial sentence, we are moving towards projects in the community known as intermediate treatment. The noble Lord, Lord Hunt, has done a great deal of work in this connection. Surely it would not be beyond the wit of man to have intermediate treatment projects in places where our services are stationed? I have not been in the services; I would not know. But perhaps other noble Lords can tell us. In any case, to remove a child from, say, Germany to a youth custody place in England away from relatives or parents does no good to that child. I also admit, quite frankly, that there are children who must be removed. But if that is the case, surely it would be better to have a care order made involving the local authority in the area where the relatives and friends of the family live. That would be a much more sensible way of dealing with a child who must be removed—and there are a few children, honesty compels me to say, who must be removed, but not in this other way.

I therefore very strongly support the amendment of the noble Lord, Lord Graham of Edmonton. I am also speaking to the Question whether Clause 11 stand part of the Bill; I very much hope that my noble friend the Minister agrees.

I see the noble Lord, Lord Glenarthur, sitting on the Front Bench. He well knows the situation with regard to youth custody centres. Perhaps the two noble Lords can get together and agree with the noble Lords, Lord Graham, Lord Mayhew and myself.

5.45 p.m.

Lord Mayhew

I should like to add a few words of support, especially with regard to the all-party move to reject Clause 11. The Government have had a fairly easy afternoon on the whole and now is the opportunity for the noble Lord, Lord Trefgarne, to earn some credit with a very sensible, not very fundamental, improvement to the Bill; namely, leaving out Clause 11.

It is very hard to see why we should now decide to increase the powers for giving custodial sentences to young people to courts-martial and special civilian courts at the very time that we are doing exactly the opposite in the United Kingdom. I understand that in Scotland they have done it for years already. It is an extraordinary moment therefore to bring forward an amendment to increase the powers for giving custodial sentences to persons under 17.

In addition, the number of offenders involved is minute—perhaps two a year. Yet the Government go to all this trouble to amend the Armed Forces Bill at this time for that purpose. There is a good deal of feeling that this is a sensible matter on which the Government might make a concession. I would very strongly urge the noble Lord to do so.

Lord Hunt

I have only just picked up the amendments and looked at the Bill, but I feel moved to rise very briefly to support the case made by the noble Baroness in support of the noble Lord, Lord Graham of Edmonton. The point that has not yet been made which is well known to anyone in the penal reform business is the enormously high record of failures of custodial sentences on young people. My own forecast is that by sending young people from their overseas station to a youth custody centre or detention centre in this country is likely to increase the failure rate. Young people would be separated from their families in nearly all cases. I should have thought that it would be possible to devise schemes for intermediate treatment or possibly community service orders in those places so that they remain with their families in the community. I speak from my experience of serving in stations abroad—where I have the edge over the noble Baroness. The range of activities permissible under an intermediate treatment order is so great that one can make some very useful programmes which would be constructive in their effect.

Lord Graham of Edmonton

The noble Baroness, Lady Faithfull clearly trying to be helpful, wrapped together her observations on the amendment which I moved and on the Question whether Clause 11 stand part. I hope that the Minister will deal with them separately. Indeed, we may have to deal with them separately.

Lord Donaldson of Kingsbridge

May I support what has been said from these Benches? I missed the first speech, but I heard the speech from the Liberal Front Bench and the speech of my noble friend Lord Hunt. I want to add my weight to the objection to any proposal which extends sentences for young people anywhere.

Lord Trefgarne

I was planning to deal with both the points made by my noble friend Lady Faithfull, who—spoke to the amendment of the noble Lord, Lord Graham, and subsequently to the Question whether Clause 11 stand part. If the Committee agrees, I shall now reply to both propositions during the course of my remarks.

I am pleased to be able to tell the noble Lord, Lord Graham of Edmonton, that the bulk of his proposed amendment was in fact introduced in the Service Discipline Acts by the 1982 Criminal Justice Act, Schedule 8, paragraphs 3 and 7. As a result, Sections 71AA of the 1955 Acts and 43AA of the 1957 Act provide that a service court shall not impose a custodial order on a young service offender unless it is of the opinion that no other method of dealing with him is appropriate. A similar restriction is in respect of young civilian offenders and is contained in paragraph 10 of Schedule 5A of the 1955 Acts and in Schedule 4A of the 1957 Act.

I understand that the further wording: because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified". is considered inappropriate to service law. This is because service law provides for a form of punishment, service detention, which is not available in the civilian criminal courts. This too is a custodial sentence but not in the sense intended in the wording of the Criminal Justice Act which I have just quoted. To adopt that wording would be to throw confusion on the position of service detention. However, I hope that with this explanation the noble Lord, Lord Graham of Edmonton, will accept that the intention behind his amendment is in fact already fulfilled in that service courts are already bound to impose a custodial sentence on those under 21 only if no other disposal is considered to be appropriate.

May I turn now to the later remarks of my noble friend Lady Faithfull. I know her thoughts were very much in the minds of other noble Lords as well. Clause 11 empowers service courts to impose custodial orders on young males of 15 and 16 years of age. At present, those youngsters under 17 years of age, who commit the most serious crimes such as murder and manslaughter, may be ordered to be detained for as long as the Secretary of State directs. Where their crime is of lesser gravity, but still very serious, the most severe punishment at present available to service courts is the imposition of a reception order, under which the child will be transferred into care in the United Kingdom, perhaps until its 18th or 19th birthday. In a number of cases which have arisen, this has not been felt to be the most appropriate method of disposal, and I dare say my noble friend will agree with that.

I do not want to give the Committee the impression that there is a crime wave among the younger members of the service families overseas; nothing could be further from the truth. However, there are inevitably a small number of cases where it is felt that some form of custody would be appropriate, and Clause 11 provides the power, on similar lines to the Criminal Justice Act 1982, to order the detention of young males of 15 and 16 for up to 12 months. Such sentences would of course be served in the appropriate United Kingdom institutions. No provision is made for the detention of young females because of the absence of any facilities to accommodate them for periods of less than four months. I can assure the Committee that I do not expect this power to detain young males to be used other than extremely sparingly, in the tiny minority of cases where a serious crime, of violence perhaps, has been committed. I can also say that the provision goes no further than the equivalent sections of the Criminal Justice Act 1982.

Members of the Committee have expressed concern that perhaps a court martial is not the most appropriate forum for dealing with juveniles. I am not sure that any of my noble friends specifically referred to that point, but it is a matter which has been raised. I should explain that this is not a new development introduced by Clause 11. Service courts, both courts martial and standing civilian courts, already have such powers to deal with the juveniles and will continue to have them whether or not Clause 11 is enacted. The new departure proposed by Clause 11 is the extension of the power to impose a custodial sentence on 15 and 16 year-old males both for courts martial and standing civilian courts. I appreciate, however, that in England and Wales there are special juvenile courts to deal with those under 17, while in Scotland there are children's hearings for those under 16.

In England these courts are composed of specially trained qualified justices, including lay justices. In Scotland the panels are composed entirely of lay members. Members of the Committee will, I am sure, understand that within the service community overseas there would be real difficulty in attempting to create anything equivalent to such courts. It would be extremely difficult, within the relatively small military communities overseas, to identify, train and retain sufficient numbers of people to form such panels. However, we have done what is possible to adapt service courts when dealing with civilians. A court martial dealing with a civilian can include, in the case of a general court martial, up to two civilians. Standing civilian courts, run by a civilian magistrate, were set up specifically to deal with civilians, and in practice these courts deal with most of the juvenile civilian offenders who fall to be dealt with under service law. Noble Lords will wish to be aware that when a standing civilian court is dealing with a juvenile, the magistrate can be advised by up to two lay assessors who may advise him on all matters other than points of law, although they do not have a vote on finding or sentence.

I should also stress that in all service courts great emphasis is laid on ensuring that the accused fully understands what is going on and this particularly applies when the offender is a juvenile. Taken together with the fact that an accused has the unquestioned right to be legally represented and may apply for legal aid on exactly the same grounds and terms as in England, I am satisfied that great efforts are made to ensure that trials under service law are not intimidatory, particularly where juveniles are concerned.

The Select Committee of another place has asked the Ministry of Defence to continue to monitor developments in civilian law so that if the civilian courts' powers to impose custodial sentences on 15 and 16 year-olds are replaced by perhaps residential care orders, we should bring forward proposals to amend service law accordingly.

I am happy to give the assurance that we shall of course take account of any such developments. Our aim, as I have said during Second Reading, is to bring service law as far into line as possible with civilian criminal law, and in the particularly sensitive area of the sentencing of those under 17 we shall be anxious to consider any changes which those responsible for such matters in the civilian criminal courts may wish to make.

My noble friend Lady Faithfull asked specifically whether we had discussed our proposals with the DHSS. I can assure my noble friend that these proposals were discussed with all the relevant departments within government, including the DHSS, and their views have been fully taken into account. Incidentally, perhaps I should add that detention centre orders were brought in for civilian defenders by the Act of 1982 and that of course includes those who are males of 15 and 16 years of age. Clause 11 is, to that extent, bringing service law into line with its civilian counterpart.

I hope that I have been able to persuade the Committee that the amendment proposed by the noble Lord, Lord Graham, is not appropriate; and, secondly, that Clause 11 ought to stand part of the Bill.

Baroness Faithfull

My Lords, I wonder whether I can get this point quite clear: do I understand that it is under consideration that care orders may be able to be made in the future, and that this is being considered rather than always using youth custody orders?

Lord Trefgarne

I am not entirely certain in what context my noble friend asks that question; but perhaps I may look into the matter and let her know if I have anything to add.

6 p.m.

Lord Graham of Edmonton

Perhaps the initiative as to whether Clause 11 shall stand part of the Bill lies with the noble Baroness; but I certainly have a view which I shall indicate to the Committee. Regarding the amendment that I moved which initiated this debate, I am satisfied—and I believe that the noble Baroness, Lady Faithfull, will be satisfied—with the caveat that we shall read very carefully what the Minister has said. In fact, our own researches and those outside may satisfy us that substantially the points we sought to be made are already covered. In that case, the Minister and his advisers have done us a good service for which I express my appreciation, and I do not wish to press Amendment No. 7 which I have moved.

However, when it comes to Clause 11, quite frankly, I am genuinely puzzled that the Minister has not even been prepared to say that he will look at our arguments. Despite what NACRO has told me, despite what the Children's Legal Centre has told me and despite what the At Ease organisation has told me—that they see Clause 11 in a different light from that of the Minister and his advisers—he is so certain, and those outside the Committee who advise him are so certain. I am more than willing to press that Clause 11 does not stand part of the Bill, but I am even more anxious not to do so if the Minister is prepared to say that he will read very carefully what has been said.

I understand that it is not possible at a Report stage to move that a clause does not stand part of the Bill. I understood that it was only at a Committee stage that one had that opportunity. In fact, I have now been told that it is possible. However, I would rather try to do this now, reserving the right to do it later on if necessary, although perhaps it may not be necessary.

These organisations have been very careful to point out to us the unsatisfactory nature of the content of Clause 11. I was very taken by the remarks of the noble Lords, Lord Donaldson of Kingsbridge and Lord Hunt, who pointed out the ineffectiveness of the custodial sentence route, which is inscribed in Clause 11. NACRO tells me that despite all the dedicated efforts of staff custodial sentences for this age group are strikingly unsatisfactory. It says that 72 per cent. of the juveniles leaving detention centres and 80 per cent. of those leaving youth custody centres are reconvicted within two years. They increase rather than reduce the propensity of young people to commit crimes. Both those noble Lords did not need to read part of a brief, as I have had to. They are aware of all this because of their involvement in trying to assist such young people. We are talking about school children of 15 and 16 years old who may very well be faced with the panoply of a court martial.

It is all very well the Minister saying that courts martial are not intimidatory. There is the matter of care, access to legal representation, etc. I should imagine that a 15- or 16-year old who is involved in a charge of this kind, for which a custodial sentence may be imposed, will feel intimidated even if the best intentions of the Minister are carried out. Therefore, I very much hope that the Minister, with an opportunity at the Committee stage, is prepared to listen to the arguments and allow us to come back at the next stage. Otherwise, at the appropriate stage I shall certainly be minded to move that Clause 11 shall not stand part of the Bill.

Amendment, by leave, withdrawn.

Clause 11 [Extension of power to make custodial orders in relation to civilians]:

On Question, Whether Clause 11 shall stand part of the Bill?

Baroness Faithfull

I am still somewhat worried. There are some children who need to go to youth custody centres: but most of the children, if they must go away from home—and that is the very last resort—would do better with a care order. I should prefer to read Hansard and see what my noble friend the Minister has said. Therefore, I shall not press this now, but I shall raise it at the next stage.

Clause 11 agreed to.

Clause 12 agreed to.

Lord Graham of Edmonton moved Amendment No. 8: After Clause 12, insert the following new clause:

("Composition of Courts-Martial.

.—(1) After section 89 of the Army Act 1955 there shall be inserted the following section— 89A. Notwithstanding the provisions of sections 87, 88 and 89 in the case of a general, district, or field general court martial convened to try a person of below commissioned rank, the defendant shall have the right to insist that at least one member of the court-martial is also a person of below commissioned rank.".

(2) After section 89 of the Air Force Act 1955 there shall be inserted the following section— 89A. Notwithstanding the provisions of sections 87, 88 and 89 in the case of a general, district, or field general court martial convened to try a person of below commissioned rank, the defendant shall have the right to insist that at least one member of the court-martial is also a person of below commissioned rank.".

(3) In section 54 of the Naval Discipline Act 1957, at the end there shall be added the following subsection— (9) In the case of a court martial convened to try a person of below commissioned rank, the defendant shall have the right to insist that at least one member of the court-martial is also a person of below commissioned rank.").

The noble Lord said: I beg to move the amendment standing in my name on the Marshalled List. The purpose of this amendment is indicated in the first proposed new section: … general court martial convened to try a person of below commissioned rank, the defendant shall have the right to insist that at least one member of the court-martial is also a person of below commissioned rank".

Again, the Minister can put me right, but a court martial is peopled wholly by those of commissioned rank. If the defendant is below commissioned rank—that is, if he is a corporal, as I was in the Royal Marines, a sergeant or an RSM—then it should be laid down as mandatory that a sergeant shall be a member of the court martial. Outside this Committee we often use the phrase that one wishes to be "tried by one's peers". That phrase has a special connotation here. It is not merely a question of being tried by those with whom one has an association, a link, a friendship or an equality of status. We are talking here of those who, from day-to-day living, understand the conditions, the pressures and the many other aspects which a person who is of non-commissioned rank quite clearly bears. If they are not special problems, they are special matters that ought to be taken into account.

I know that when this matter has been looked at before some very important pronouncements have been made. In 1946 there was a report by Lord Justice Lewis. Mr. Justice Lewis, as he was at that time, and his committee, recommended that other ranks should not serve on courts martial. They were against it. However, as regards the report itself, there are some interesting footnotes by Mr. Raymond Blackburn. He is well-known to senior colleagues of mine and others round the Committee from his service in another place. He was a member of that committee, and this is what he said: While subscribing to the report as a whole, I regret that on one subject I do not wholly agree with my colleagues on the Committee—namely, on the composition of the court in courts-martial. I believe (1) that a private soldier, lance corporal or corporal or lance bombardier or bombardier should have the right to demand that one corporal or a bombardier should sit on a court-martial composed of three persons trying him or that two corporals should sit on a court-martial composed of five persons trying him".

Now, of course, a great many more people hold the views of Mr. Blackburn, and it is not my intention to weary the Committee with those particular views. I believe that we need to be fair. We are saying that a person who is a non-commissioned officer on a Wednesday is incapable of serving on a court martial, but when he is promoted and becomes a commissioned officer on a Thursday, overnight, ipso facto, he becomes a new man or woman, and he or she then suddenly has the gift; he or she has suddenly had a visitation and is competent and capable.

I know that Mr. Viggers, the Member for Gosport, in another place, argued that officers are peculiarly well-fitted because, besides being gentlemen, in their training as officers they receive a certain veneer. I have news for Mr. Viggers. People are being tried every day in our criminal courts—for instance, at the Old Bailey—where juries pass judgment upon them. The jury listens very carefully; but it does not receive special training. The members of the jury, because of the jury system, are simply brought in off the streets. They are qualified in various ways, but there is not a semblance of being trained to try people. And yet officers are capable of trying people at a court martial but non-commissioned officers are not. That requires a big stretch of the imagination.

This is nothing remotely against the capability of commissioned officers, who I understand have thorough training, one aspect of which is in the legal niceties, and particularly of service law. They will know more about the Armed Forces Bill than anyone in this Committee ever will because they have to apply it. I am simply arguing for a movement. The movement is that one ought not exactly to liberalise but to make less hidebound in the future than in the past the composition of courts martial.

I imagine that there are Members of this Committee who are engaged even now from time to time in pleading in the courts. The question of the composition of a jury, the question of ethnic origins, of sex and of background, are all carefully weighed from the point of view of the jury being capable of producing a verdict which is more likely than unlikely to be favourable to your client. What I say is that if you are a non-commissioned officer you would like to feel that there was at least one non-commissioned officer on the court martial.

I am not saying that they are going to bully them, or that they are going to be bullied by the others. I am not even saying that they may be as competent. I am talking in terms of equity and justice, or the appearance of equity and justice. The noble Lord, Lord Mayhew, may well ask me whether I have been prevailed upon by the armed services, and is there an agitation about this. I do not know. I have not detected it. I have read every word of the blue book and the reports in order to be prepared for these debates. I cannot honestly say that there is even a surreptitious agitation from within the services, or from non-commissioned ranks, or in any other way, but I like the sense of what is being sought in this amendment.

I hope that the Minister and people around the Committee will agree that this is something we can look at, even for an experimental period. I am not certain that it will not be welcomed. There could well be a school of thought in the Army, say, where they feel they want to be tried by their officers. In other words, not by their peers, not by those of their own rank, but by superior beings. That may be the situation. I do not know. But I certainly hope that the Minister will take on board the point that I am seeking to make. I beg to move.

Lord Mayhew

The noble Lord, Lord Graham, declared that his purpose is to "liberalise" the courts martial, and of course at that word, like Pavlov's dogs, I salivate. And yet I am not convinced that the amendment would have the effect that he expects. I agree with a good deal. I agree that a non-commissioned or under-commissioned ranked person might well have a more intimate understanding both of the offence and of the accused.

I also rather agree that the training of officers, certainly in my experience, is very rudimentary. I remember being told the rudiments of court martial procedure and military law at the time of commissioning, so I am some way with him in what he says. At the same time the assumption behind his amendment is that there are, and have been, unjust convictions by courts martial because they have been composed solely of commissioned officers.

The noble Lord did not put forward any evidence for this. I am personally not acquainted with any evidence. It is important not to make reforms unless there is good evidence that something is wrong. If I had a string of instances, or indeed if I had evidence that there was a feeling in the services that there were these unjust sentences as a result of courts martial being formed wholly of officers, then I should be a great deal more sympathetic. Otherwise, I wonder.

I heard the noble Lord say that it would be some comfort to an offender who was an NCO or a private to know that there was a private or an NCO on the court martial. I must say that when I was in the ranks if I had been summoned to a court martial and told that there was to be an NCO on it, I would have immediately asked, "Which NCO?" If I was told that there was a private on it, I would have asked, "Which private?" This leads me to suspect that an NCO and a private on a court martial might be exposed to rather warmer pressures than an officer. On the whole, I have some reservations about this amendment, and will wait with interest to hear what the Minister has to say.

6.15 p.m.

Lord Marshall of Leeds

Again I find myself in almost total agreement with what the noble Lord, Lord Mayhew, had to say. I think that the noble Lord, Lord Graham, deceives himself a little if he tries to compare the duties of a juryman on the one hand and the duties of a person, whoever he may be, sitting on a field general court martial, a district court martial, or a general court martial. The juryman has the benefit of having the judge, who goes to some great trouble to address the jury before they retire to give their verdict.

It is not quite the same at a court martial, even though in my time on the general court martial a member of the Judge Advocate General's staff invariably sat on the court for the purpose of advising the court on matters of law. This sometimes happened in less serious cases at field general courts martial.

I was concerned with tanks, but my time was very much taken up by being asked to prosecute or defend cases in the field and not in the field. Therefore in the end I was concerned in defending, or prosecuting, every rank from trooper to Major General. I never heard any of them complain that there was not on the particular court martial or general court martial a person of equivalent rank. Had that been the case, and had there been a feeling of dissatisfaction, at least I should have heard it in the number of cases in which I was concerned, both during the war and after the cessation of hostilities in Europe.

Lord Trefgarne

As the noble Lord has made clear, the objective of his amendment is to ensure that one of the members of a court martial should be someone other than an officer, where those of below commissioned rank are being tried. Although the conclusion of the 1946 Lewis Committee was that to widen the composition of courts martial to include those below commissioned rank would neither tend to improve the quality of the court nor the appearance or prospect of justice being done, this issue has been given regular consideration since then.

Following a recommendation by the Select Committee of another place which examined the 1981 Armed Forces Bill, the question of the composition of courts martial has been looked at again in detail. As my right honourable friend the Minister of State for the Armed Forces said in another place, we found no grounds for departing from the conclusions of the Lewis Committee. Morever, there is no evidence of any desire within the non-commissioned ranks of the armed forces for the composition of courts martial to be altered.

Both oral and written evidence was taken from my department by the 1986 Select Committee of another place which inquired particularly into the grounds for saying that there is no discernible pressure for change within the armed forces. I note that the committee's report makes no recommendation for change or even for further consideration of this issue but accepts the validity of the Government's arguments. I believe that the present system works well and enjoys a high degree of respect throughout the services. I hope that the noble Lord will therefore not wish to press his amendment.

May I say before I sit down that when he said that there was a possibility of a man being a non-commissioned officer one day and not being eligible to sit on a court martial, and then becoming commissioned the next day and being able to sit, that is not quite so. You have to have held a commission for two years before you can sit on a district court martial, or three years for a general court martial or for any Royal Naval court martial.

Lord Graham of Edmonton

The noble Lord obviously speaks from experience! I do not know from which side of the table he speaks from, but I take the point.

Taking the point of the noble Lord, Lord Mayhew, there has been a little misunderstanding. To paraphrase Lord Mayhew, he said that if he had to appear before a court martial and was told that there would be a non-commissioned rank on it, he would want to know who it was. If he did not want that person to be there he would not be there, because my amendment talks about the right to insist. If the noble Lord, Lord Mayhew, felt as a non-commissioned ranker that he wished to be tried by all officers (of course he is a Liberal) that would be up to him. I believe the noble Lord, Lord Marshall, talked in terms of rights and insistence. I am saying that it will not be imposed.

Where the person who is to be charged is a non-commissioned officer feels that he would be better served if at least one of those hearing his case is of equivalent rank he would have the right to ask for that. The Minister is absolutely right. I do not speak from evidence. There is no petition or agitation. I simply speak from conviction. I believe it is wrong to talk in terms of a caste society in the services; where the only people who apparently are competent to try others who serve in the services are those of a commissioned rank and that those of a non-commissioned rank are not competent. That is why I was making this case. The noble Lord has satisfied me not least because the Select Committee, having heard the arguments, came to the conclusion that there needed to be no change. Thus I am not prepared to press the amendment but beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 13 [Change of place of safety and return to United Kingdom of children in need of care or control]:

Lord Graham of Edmonton moved Amendment No. 9:

Page 12, line 27, at end insert—

("( ) For subsection (4) there shall be substituted the following subsection— (4) The grounds which justify the making of such an order are that there is reasonable cause to believe that damage to the child's health or well-being is likely unless he is immediately removed to or detained in a place of protection for the duration of the order.".").

The noble Lord said: I believe that it is the wish of the Committee that Amendments Nos. 9, 10, 11, 12 and 13 should be taken together because they hang together. I shall be dealing in particular with Amendment No. 10, for that I believe is the best one to argue the case contained in this series of amendments. At this stage it will not be my intention to press any of them to a vote, but on this occasion and on others we need to use the very limited opportunity that the Committee has to deal with matters of crucial concern to every serving member of our armed forces. We are concerned with the detection, prevention and treatment of child abuse. As my honourable friend in another place Dr. Godman said, one Jasmine Beckford is one to many. We are engaging the Minister and his advisers in convincing the Committee regarding the arrangements in respect of children who may be within our purview and responsibility. I shall not say I am not concerned with other people's interests, but I am primarily concerned with the interests of the child.

Amendments Nos. 9, 11, 12 and 13 strengthen Amendment No. 10, which is concerned above all else with the primacy of the interests of the child. The 1981 report on the Armed Forces Bill, referring to children at risk, states in paragraph 10, on page 6: The grounds on which an order may be made, (e.g. that the child is being ill-treated, exposed to moral danger or beyond control) follow civil legislation". We are trying to be satisfied, as the Minister satisfied me earlier about the non-custodial sentence availability, that what we have here is on all fours with what is available for civilians. On this we want the Minister to do exactly the same as he did previously.

We also have to hear from the Minister further on the report of the Armed Services Bill which we are now dealing with. Paragraph 16, on pages 8 and 9, reads: The procedures under service law for dealing with children at risk are broadly comparable to those under English civilian law. Different procedures, however, operate in Scotland. Under Scots law, a child detained in a place of safety must be brought before a 'children's hearing', composed of 3 lay members, within 1 or 2 days. The hearing has power to appoint a 'safeguarder' to represent the child's interests. Both the child and its parents have the right to be represented at the hearing and to appeal against the hearing's decision".

I believe that the Scottish situation is either broadly or generally what we want here. I am taken by this concept of the children's hearing. Anything we can do to try to relate the panoply of the court to the circumstances of the defendant (in this case the child) is likely to be helpful. The report states that the children's panel or hearing was set up under the provisions of the Social Work (Scotland) Act 1968.

I was interested to hear what was the purpose of the hearing—to consider whether there is a conflict between the interests of the child and those of his parents—and that the panel may appoint a safeguarder to represent the child's interests. It is interesting that the case powerfully made in Committee in another place by Dr. Godman was codified into an amendment to the Bill. The amendment was pushed to a Division and there was an equality of votes. The issue powerfully argued by Dr. Norman Godman resulted in a vote of four for and four against. I make no point about parties because a Conservative Member of the Committee joined the Liberal and Labour Members. Dr. Godman is the person particularly concerned with the English child care law.

I should like the Minister to tell us something about the current status of the interdepartmental working party's report to Ministers which figured in the Committee. The purpose of that was to consider place of safety orders, how much they have been used and how much they have been criticised. The special report says a great deal about the ways in which the procedures can be strengthened.

I hope that the Minister will tell us something more about that. The Children's Legal Centre drew my attention to place of safety orders which are enshrined in Clause 13. This is what it said: The clause appears to have been drafted without reference to the review's recommendations for changing place of safety order provisions in domestic child care law".

In the report to Ministers of the inter-departmental working party it is recommended that the DHSS with the Ministry of Defence should consider the implications of changes to the main place-of-safety powers, the powers which cover children of families living abroad. If I were in the business of stretching these things out, there is a great deal more information which has been given to me which certainly is very interesting but which I am sure all Members of the Committee will have studied with care. I beg to move the amendment and hope that the Minister can say something sympathetic.

6.30 p.m.

Baroness Faithfull

May I ask the Minister whether, when he is replying, he could help me in regard to care and protection cases? For those children who have been, say, battered and are at risk, there are two stages. There is the stage where it is hoped to help a family to look after its own children and to come to terms with the difficulties within the family. Then there is the stage where a case is taken to court because an offence is alleged to have been committed. What happens in the forces? Is there somebody nominated to whom families can be referred before the case is actually taken to court? I should be most grateful to know.

Lord Trefgarne

Perhaps I may answer my noble friend first before dealing specifically with these amendments. May I say that that is a matter which falls slightly outside the scope of this amendment? If my noble friend will allow me, I shall get the precise information and write to her as soon as I can.

Having said that, I must confess that I am slightly surprised to see this amendment down in the name of the noble Lord, Lord Graham of Edmonton. These amendments to Clause 13 were proposed and thoroughly discussed in another place when my right honourable friend the Minister of State for the Armed Forces explained that although he fully understood that the aims of the proposer were extremely laudable—as indeed they are—his amendments were based on a misunderstanding of the purpose of service place-of-safety procedures. The amendments were then withdrawn and we had thought that that was the end of the matter. Nevertheless, our view of the amendments remains entirely the same and I hope that I can persuade the Committee to deal with the amendments as they were dealt with in another place.

Although the reasons for our rejection were thoroughly gone into in another place, it may be helpful if I rehearse the major points of our arguments today. The first part of the noble Lord's amendment seeks to alter the grounds which justify the making of a place-of-safety order under service law. However, the present provisions, contained in section 14 of the 1981 Armed Forces Act, follow very closely the wording of section 1 of the children and Young Persons Act 1969. I am aware that the proposed amendment derives from the review of child care law which my right honourable friend the Secretary of State for Social Services has in hand. While the proposed new definition might offer certain advantages, it does not seem to me right for the armed forces to move ahead of the civil authorities in this matter; it is proper for us to await the outcome of my right honourable friend's review, when we shall certainly consider very carefully its implications for service law.

Turning to the second amendment, which, I understand, is derived from Scots law, I admit that the proposal might have a certain attraction in child care proceedings. However, service place-of-safety procedures are merely short-term emergency orders which are not dealt with by way of a formal hearing. Since there are no parties to the procedures, there can be no need for the appointment of a safeguarder. Even in Scotland, a safeguarder is only appointed for the children's hearing, not at the initial stage when application is made to a JP or sheriff. This amendment is, I am afraid, wholly inappropriate to service procedures which equate only to this first emergency stage.

I look now at the third amendment. The main points to be made here are that it would be most unlikely that we should ever want to withhold from his parents details of a child's whereabouts under a place-of-safety order. I believe that that is the thrust of the amendment. Nevertheless, there may be occasions, for example, when the child has been subjected to serious abuse by a parent, when we would feel it important to deny the parent access to the child. In such rare cases commanding officers would invariably have administrative means at their disposal to select a place of safety under service control that would effectively ensure the exclusion of the parent.

This amendment would not be consistent with either English or Scots civil law, and for these reasons I cannot accept that this is an appropriate matter for legislation at this stage, although I would of course consider any relevant proposals which might emerge from the DHSS review to which I referred just now.

The fourth amendment derives, I think, from a misconception about the type of procedures involved. The sort of provisions envisaged for attendance or representation at hearings and for appeal are of course appropriate where child care proceedings are being considered, and where the child's longer-term future is at stake. But, as I have already explained, service procedures do not deal with care proceedings; they deal only with temporary emergency place-of-safety orders which may only be made overseas.

The noble Lord's amendment goes far beyond the equivalent provisions affecting the initial granting of a place-of-safety order in either England or Scotland so far as attendance, representation and appeal by parents at the initial stage of place-of-safety orders are concerned. However, I should stress that service law in fact already goes further than either English or Scots law in providing that parents have a right wherever practicable to make representations to the commanding officer before the order is made. We do not think it would be right to go any further; to do so would be to risk delaying proceedings while possibly leaving a child in a dangerous situation. This, clearly, would not be acceptable.

I turn now to the fifth and final amendment. Again, I stress that I fear the noble Lord, Lord Graham, has misunderstood the type of procedures involved. Service place-of-safety orders do not involve written applications and formal hearings. They are designed to react swiftly to events where a child is in immediate danger. The noble Lord's proposals for written applications again go far beyond anything in English child care law or indeed in Scots law so far as the initial application to a JP or sheriff is concerned. Our principal objection to this proposal is that it would cause unacceptable delay in removing a child from a source of danger. Of course, where the child is transferred back to the UK and further care proceedings are instituted by the local authorities, the services make arrangements to provide all the necessary supporting evidence and documentation to the UK courts.

I hope and believe that I have said enough to persuade the noble Lord that it would not be right to proceed with these amendments.

Lord Graham of Edmonton

I am grateful to the Minister because, as he points out, the procedure in another place was known to me and, on reflection, perhaps one ought to have left it at that. But I took the view, that, having read the proceedings of the Select Committee, I wanted to take part, to raise matters and to have the assurances which the Minister has given. There are people, and certainly organisations, outside this place who despite what has happened in another place seek to get support for their point of view by writing to Members of this House. So we are under an obligation in that respect.

I am most grateful to the Minister for having taken the trouble and care to assure not just those outside but those inside your Lordships' Committee who are, sadly, faced with terrible stories about ways in which due to defects in bureaucracy and defects in the law, the victims are not people like ourselves who can look after themselves, not even adults, but children. As my friend Dr. Norman Godman said, one Jasmine Beckford is one too many.

I am grateful to the Minister. In the light of what he has said, particularly in regard to what action he and his colleagues may take when the report from the DHSS appears, if there is some merit in some of the recommendations I feel sure he will not hesitate to come to the House. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 10, 11, 12 and 13 not moved.]

Clause 13 agreed to.

Lord Graham of Edmonton moved Amendment No. 14: After Clause 13, insert the following new clause:

("Report to Parliament on proposals for war time emergency.

.—(1) After section 175 of the Army Act 1955, there shall be inserted the following new section— 175A. It shall be the duty of the Secretary of State to lay before each House of Parliament from time to time a report on any proposals by him with respect to measures designed to determine the relationship between the army and the civilian population in a transitional period which is expected to lead to an outbreak of war.

(2) After section 175 of the Air Force Act 1955, there shall be inserted the following new Clause— 175A. It shall be the duty of the Secretary of State to lay before each House of Parliament from time to time a report on any proposals by him with respect to measures designed to determine the relationship between the air force and the civilian population in a transitional period which is expected to lead to an outbreak of war.

(3) After section 131 of the Naval Discipline Act 1957, there shall be inserted the following new Clause— 131A. It shall be the duty of the Secretary of State to lay before each House of Parliament from time to time a report on any proposals by him with respect to measures designed to determine the relationship between the navy and the civilian population in a transitional period which is expected to lead to an outbreak of war." ")

The noble Lord said: The rubric to this clause refers to a report to Parliament on proposals for war time emergency. Perhaps I may ask, the Committee to look at what was said in the Select Committee on the Armed Forces. This is Mr. Kevin McNamara speaking at page xxiv of the Special Report: With regard to possible Emergency Powers for the Armed Forces in a transitional period leading to a possible outbreak of war, the existence of such draft legislation has not been denied; indeed it would be remiss of any Government not to have prepared for such a contingency, however, remote. Long before the circumstances have arisen which would lead to such powers being implemented, Parliament should have an opportunity to examine the proposed primary and secondary legislation in order to be satisfied that a correct balance is struck between the individual's rights and liberties and the needs of the Armed Forces to carry out the tasks assigned to them in such an emergency. In the heightening tension and the pressures of a period leading up to the possible outbreak of another world war, the ability of Parliament carefully and rationally to examine such legislation would be curtailed. It was to protect the citizen from the arbitrary use of powers by the Forces of the Crown that the eventually leading to the formation of this Committee were established. It is worthy of note that many of our NATO allies already have such legislation on their statute books.".

My attention has been drawn to an item in the Observer yesterday. I am sure the Minister's advisers will have drawn his attention to it as well, because on page 6 of the paper we see the headline, BBC war memo censored by MoD". That may not be an unusual occurrence. It says, The Ministry of Defence has taken steps to suppress evidence of a secret agreement between the Government and the BBC on dealing with news in times of national crisis.". If indeed such an agreement is made, I should have thought that Parliament should have an opportunity of discussing the matter. It goes on: One of the authors of the study, Derrick Mercer, former editor of 'Channel Four News', has been shown an internal MoD memo written in April 1984 and marked 'Restricted'. It revealed that there are 'formal understandings with the BBC Board that in times of crisis it would act responsibly and consult fully with the Government.' The implication is that the BBC would co-operate with the Government in the way it handles news, not just in times of nuclear war, but also during periods of tension, perhaps leading up to war. The BBC has always maintained that it is independent from the Government and this is the first time the existence of such an agreement has been revealed. My amendment is saying that of course the precise details of any such agreement may very well need to be concluded in the utmost secrecy, but surely at some stage this Chamber ought to be made aware in general of the kinds of arrangements which are likely to be made in the event of an emergency.

What we have got, particularly considering the devastating swiftness with which tension becomes war, is a situation where Parliament and this Chamber are bypassed and take no part in a discussion of the details. We may well be told of the major decisions. It is all very well the Minister signifying that this is perhaps not a matter of the utmost importance. It may not be to him or to the MoD at this moment; but the consequences of not being fully aware of what is entailed could well be crucial to those who are affected.

For instance, what is to happen to the civilians who live around the bases? What powers will suddenly be revealed as being in the hands of either a visiting power or even in the hands of our standing forces? How is the environment going to be affected, with the roads and so on, and what will happen in regard to the compulsory acquisition of property? It is an area in which we can either shrug our shoulders and say that we do not need to be consulted or, like myself, not speaking as a parliamentarian, say that we are entitled at least to be told by the Government what kind of arrangements they are going to make. That is the basis on which I move this amendment. I beg to move.

6.45 p.m.

Lord Harmar-Nicholls

I must say that I have not followed the proceedings of the Committee on this point and I have only just come into the Chamber. I have such a respect for the noble Lord, Lord Graham—solid, reliable—but I must say I have never heard a more ridiculous speech than the one he has just made. I mean that. If in a time of crisis we would not expect the BBC to act responsibly (which is what he said) whether or not their actions are based on any agreement, and if the BBC (whether implied or on the basis of a document) will not behave responsibly at a time of crisis, then it is time we thought about closing down the BBC. But of course we know that the BBC will do that. Whether or not there is an agreement in general or specific terms I do not know, but if there is, I would not expect it to be blazoned in the headlines.

If we are in a time of crisis—and that is what the whole thing presupposes, when we think about it—there are dangers around and we do not start to advertise in headlines what we are going to do in order to protect our own interests, and those of our country. I do not know anything about this Bill apart from the small scraps that I heard just now. I certainly have not studied this amendment, and I am forming my words purely on the speech which the noble Lord has made in support of his amendment. I think it is quite ridiculous and I should like to feel that we are not going to spend any more time going down that particular road.

Lord Trefgarne

My trouble is that, listening to the speech of the noble Lord, Lord Graham, I could not quite make out to what part of the Long Title his speech referred. Then, turning up the Standing Orders with the help of the Clerk, I find that amendments must be relevant to the subject matter of the Bill and to the clause in respect of which they are proposed. It further says that they must not be inconsistent with the previous decision of the Committee on the same question.

I think the noble Lord's amendment fails on almost all of those counts. He has raised a matter which falls quite outside the scope of this Bill and quite outside the Long Title. I do not really think that in the circumstances I am supposed to reply to it; but if the noble Lord wishes to table a question on the matter, I shall be happy to deal with it.

Lord Graham of Edmonton

The Minister confirms what I feared—that is I was chancing my arm. However, the Table having accepted the amendment and not, as with the earlier amendment, Amendment No. 1, having advised me that it was out of order, I felt it was not unreasonble. The Minister has said that the substance is something on which he is at least prepared to give an answer if I put the matter to him in another way. Of course, I do not propose to press this amendment. However, may I say to the noble Lord, Lord Harmar-Nicholls, that we have had a very useful period of almost four hours really on a matter which is crucial: that is, how our armed forces are going to be guided by a code of discipline which affects not only themselves and their families.

The gravamen of this amendment is that when an emergency occurs it is then too late for this Chamber to debate the governing powers for that emergency. I take the view that this matter is not out of court, although it may be out of the Long Title, in discussing in advance of an emergency the kind of powers which we feel, as a community and as a country, that we want to take. I have listened to what the Minister is mumbling and I deciper it in the most kindly of spirits. I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Clause 14 agreed to.

Lord Graham of Edmonton moved Amendment No. 15: After Clause 14, insert the following new clause:

("Social Inquiry Reports

. For any case brought before a court martial or a standing civilian court, the court shall have power to call for a social inquiry report to be made where it is considered that to do so would assist the court.")

The noble Lord said: This amendment is concerned with social inquiry reports and I ought not to delay the Committee long. What we are seeking to ensure is that whenever a court martial or a Standing Civilian Court deals with matters on which a social inquiry report would be helpful, just as in other courts such a report is seen to be helpful, it ought to be made available. We are trying to put a court martial on all-fours with a civilian court. We are not saying that there should be a statutory duty. What we are saying is that it ought to be available. Even when a formal social inquiry report is not provided full information as to an offender's character, background and circumstances must already be given to the court, and we are asking the Minister to say whether he considers that a court martial should have power to call for a social inquiry report. I beg to move.

Lord Trefgarne

As the noble Lord has said, his amendment seeks to empower all courts martial and Standing Civilian Courts to call for social inquiry reports to be made. Although he has not included in his proposed clause a definition of the phrase "social inquiry report", I assume he means a report, prepared by a social worker, containing all relevant personal information on an offender to enable the court to decide upon the most appropriate sentence, taking into account the individual's circumstances.

As a result of a recommendation made by the Select Committee of another place which examined the 1981 Bill, we have looked carefully at the sort of information made available to a service court. The Navy already had a system of providing full social inquiry reports on all offenders where this was considered desirable; these reports were provided by the qualified social workers of the naval personal family services. This was possible because of the much smaller numbers of Royal Navy courts martial.

We therefore concentrated on the Army and Royal Air Force, where a rule of procedure laid out the type of personal information which was required to be presented to a court martial. Administrative guidelines have now been introduced which considerably strengthen and broaden the range of this information, so that it now covers family background, finances, education and other relevant circumstances. This information is now routinely provided on all offenders appearing before a court martial. Similar information is also required by a Standing Civilian Court.

We considered further the case of young offenders, where the Select Committee of another place had been particularly concerned about the provision of full social inquiry reports. For such reports we are dependent on the qualified social workers of SSAFA, and in Germany the senior probation officer. Their resources are limited and they do not necessarily extend to all areas where servicemen are currently stationed. For that reason we introduced instead a scheme whereby social inquiry reports will be produced wherever practicable on all young servicemen appearing before a court martial on a serious offence. Such reports may also be provided in other appropriate cases. They will further be provided in similar circumstances on all young civilian offenders appearing before a court martial or Standing Civilian Court. This scheme has now been in place for over a year and appears to be working very well.

I hope the Committee will agree, therefore, that within the constraints of available SSAFA support we now operate a system which ensures that full information on every accused is available to service courts with additional formal social inquiry reports on young offenders charged with serious offences. Because of the constraints I think this is as far as we can realistically go, but I should stress that if for any reason a service court is not satisfied with the information available to it on an offender's background, it may call for further details to be provided and it may adjourn while these are prepared. I can assure the Committee that the duty to provide information on all offenders is taken very seriously indeed. I hope that this information will persuade the noble Lord, Lord Graham, not to press his amendment.

Lord Graham of Edmonton

It has persuaded me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Graham of Edmonton moved Amendment No. 16: After Clause 14, insert the following new clause:

("Review and Report to Parliament on rules governing membership of trade unions and other bodies.

.—(1) After section 7 of the 1955 Acts and section 131 of the 1957 Act there shall be inserted the following new section— .—It shall be a duty of the Secretary of State to make a periodic review of and lay a report before each House of Parliament on the rules governing trade union membership or membership of a professional body by those to whom this Act applies, and the Secretary of State shall take into consideration the practices in this regard of other member countries of the North Atlantic Treaty Organisation." ").

The noble Lord said: This amendment deals with a review and report to Parliament on rules governing membership of trade unions and other bodies. Those who have read the report will be aware that there were some interesting exchanges in the Select Committee. The noble Lord, Lord Mayhew, drew attention on Second Reading to some discussion taking place because I then failed to make a direct reference to the possibility of an amendment along these lines, although I gave notice of substantially all of the other amendments. I am not privy to any agitation, call or concern by the armed services that they want a trade union, but this is the only peg this Chamber and the other place have on which to raise issues. I am only asking the Minister to make a periodic review and to lay a report before each House of Parliament on the rules governing trade union membership.

Assiduous readers of the report will see that the first question to be answered is: is it permissible to be a member of a trade union while a member of the armed services? The answer is, yes; there is no proscription. There is then the question of how active one wants to be and what is one stopped from doing? In the case of a serviceman near the end of his service, to what extent are trade unions given an opportunity not necessarily of canvassing for members, but of making their presence known? If one is in the catering corps, the Union of Shop, Distributive and Allied Workers, the General and Municipal Workers, or some other union may be concerned. If one is a carpenter, the Amalgamated Society of Woodworkers may be concerned. If one is an engineer, the AEU may be concerned. I think it is no longer the AUEW; the "W" has gone. One gives access.

Let us look at the experience in other countries. We were told by the MoD in a supplementary annex that Belgium, Denmark, the Federal Republic of Germany, Luxembourg, the Netherlands and Norway have established trade unions. In the case of Belgium there are three unions, one for regular officers, one for conscripted officers and another for NCOs and other ranks. In the Federal Republic of Germany all members of the armed forces are permitted to join a trade union, and the majority are members of the DBV. In the Netherlands officers, NCOs and other ranks have separate associations. I am simply inviting the Minister to tell the Committee whether he thinks it is a good idea that a report should be laid every five years simply to provide each House with an opportunity to discuss trade union membership in the armed forces. I beg to move.

Lord Mayhew

I have a few doubts about the amendment of the noble Lord, Lord Graham. It is true that members of the armed forces can join unions as it is, and they can pay the political levy as it is. This amendment is innocently moved to the effect that the Government should give a report on the state of play, but there is a very strong political implication in the amendment that the Government should also change the rules and we have been told about other countries where the rules are different.

I am doubtful whether the rules should be changed. I doubt very much whether there is any demand—indeed, the noble Lord, Lord Graham, conceded this point—for change from within the armed services. Therefore, one is bound to ask whether this amendment is moved on behalf of the armed services or on behalf of the trade unions, though any suspicions of this kind must be carefully kept in check. Nevertheless, the only meaning behind this amendment must be to facilitate the unionisation of the armed forces. This can be the only reason for it. I doubt whether this is called for or appropriate. After all, the other armed forces to which the noble Lord, Graham, referred, are all conscripted armed forces. There is a much better case for a conscript citizens' army to be highly unionised than is the case for the much smaller highly professional forces that we have in this country. It would be most inappropriate to have a campaign to unionise those forces.

When I listened to the noble Lord, Lord Graham, moving in a most charming manner one amendment after another this afternoon, I had a general feeling that he was envisaging a large citizen's army, highly unionised, egalitarian and gay. This is the sensation that one had when listening to him. Of course, we know the noble Lord, Lord Graham. He has made many contributions in the field of defence. We know his genuine dedication to the armed forces and that this is a false impression. Nevertheless, I think the Committee should not pass this amendment. I see no call either on behalf of the armed services or for the good defence of the country for unionising the British services.

7 p.m.

Lord Trefgarne

We are approaching the end of four hours' consideration of this Committee stage, and I know there is other business to follow. I hope the noble Lord will therefore forgive me if I do not speak at any great length—

Lord Ponsonby of Shulbrede

Less injury time for the Statement.

Lord Trefgarne

—on the amendment that he has now proposed. But, needless to say, I share the view of the noble Lord, Lord Mayhew, that this is not an appropriate amendment and I hope that the noble Lord will not seek to press it.

The argument for some form of trade union in the armed forces has been deployed and dismissed on a number of occasions. Perhaps the most important aspect of that argument is the need to ensure that the armed forces do not become politicised and maintain their party political neutrality. That is something which they highly prize and is crucial to the effective discharge of their role.

The noble Lord's amendment seeks to impose on my right honourable friend the Secretary of State a duty periodically to review the Government's policy on these matters and to report to the House. I do not consider that such a thing would be a matter for legislation. Our policy on the subject is of course reconsidered from time to time in the same way as my department reviews a whole range of matters relating to service welfare and discipline. However, there are ample opportunities for noble Lords who are interested to discover whether any change of policy is planned or has been decided upon, either by putting down Questions or during the annual debates on the Service Discipline Continuation Order; or, for that matter, during the consideration of Bills such as this. I therefore consider that specific legislation such as is proposed by the noble Lord would be superfluous, and at this late hour I hope he will see fit to withdraw it.

Lord Graham of Edmonton

I intend to withdraw the amendment. I am disappointed by the dismissive nature of the Minister's comments, and also by those of the noble Lord, Lord Mayhew. If I gave other than the impression that I believe it would be a good thing for trade unions, I am guilty of misleading the Committee. I never said that there is a demand, either from the trade union movement or from the armed forces. When one looks at the experience of other countries one sees invariably that there is a no-strike clause. A range of things is contained in the arrangements which are made. One of the matters that has disappointed me in reading this report is the extent to which the MoD believes there is very little it can learn from experience elsewhere or be told by anybody else. That is wrong. The attitude that the MoD has it just about right permeates all these pages.

We have debated some very important issues. I should like to have seen the Ministry and the Minister prepared at least to examine the experience of other countries which are as democratic as ours. I take the point about conscription and all-volunteer forces (there are variations) and about the difference between the armed services and a great factory. I have been very disappointed by some of the responses from the Minister, and in particular by what I detect as the attitude of the MoD.

However, not only is the night young but the stages of the debate have just begun. We have other stages at which amendments can be put down, not only in the light of what the Minister has said but, more importantly, in the light of what the Minister has not said. I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Remaining clauses and schedules agreed to.

House resumed: Bill reported without amendment.

Lord Trefgarne

My Lords, I am not sure what has been agreed for future stages of this Bill, but since no amendments have been agreed to today it would be open to me to move now, That this Report be now received. I should be grateful for the views of the noble Lord.

Lord Graham of Edmonton

My Lords, I certainly would not wish to agree with that, for two reasons. The first is a matter to which I did not refer directly—the report by Mr. Calcutt on the methods of interrogation in respect of airmen in Cyprus. I do not refer to the detail of the case. The Minister knows how disappointed many people are that that report was not available before the concluding stages of the Bill in another place. We were not led to believe—that is right—but we hoped that we would have it before today. Certainly, in the light of that report there may be grounds on which we would put forward amendments.

Secondly, the noble Baroness, Lady Faithfull, and others have said that not only will they want to look at this report but they will want to take guidance from those outside the House who may well have valuable points to make. I certainly would resist, if need be by a vote, a Motion to proceed to Report stage.

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