Human Rights Convention Complaints and Military Courts (Hansard, 10 March 1998)

§ The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)
My Lords, we are considering whether there are any cases which might be brought solely on convention grounds under Clause 7(1)(a) of the Bill which should be dealt with under the military court system. We are also considering what the jurisdiction and powers of any specially designated service court might be. At present, we have reached no conclusions on whether it would be appropriate to designate service courts for this purpose.

§ Lord Mottistone
My Lords, I thank the noble Lord for that reply, which is encouraging. I am delighted that the Government are looking into this matter carefully. Perhaps I might draw to the attention of the House the remarks of the noble and learned Lord the Lord Chancellor just before he made the statement referred to in my Question. He reminded us that when there was a threat of war or other exigency the country would be enabled to take derogations on Article 15 of the convention. It would seem to me that these days when war happens and does not happen and when an emergency is an emergency is much vaguer than it was in earlier times. It might be helpful to have the Ministry of Defence in the sort of role that the noble and learned Lord suggested it might be given, so that people could be sure as to when they could invoke Article 15. Does the noble Lord agree that that matter should be taken into consideration in the studies to which he referred?

§ Lord Williams of Mostyn
My Lords, that is certainly an aspect that is worthy of consideration. Perhaps I can assist. The Government recognise fully that without the services of the Armed Forces from 1939 to 1945 and thereafter there would have been no opportunity for a European Convention on Human Rights and therefore no opportunity for any government in this country to ratify it. We take this matter seriously.
There are three occasions—I hope I respond in the spirit in which the noble Lord, Lord Campbell of Alloway, put these serious questions—when convention rights might be relevant. The first is when there is a charge in a court martial and the defendant wishes to assert a full or partial defence on a convention right. That can be dealt with by the court martial system and thereafter on appeal. Secondly, an individual service man or woman might want to seek a declaration of incompatibility, as any other individual might. That can be dealt with quite easily in the High Court. The intermediate stage was referred to by the noble and learned Lord the Lord Chancellor at col. 768 of Hansard on 5th February—namely, a direct assertion of a convention right against a public authority; namely, the armed services. It is that category that we are presently examining, and the possibility of it being dealt with within the conventional system. That is one solution; but we have not excluded any solution. Careful consideration is being given to these matters with our colleagues at the Ministry of the Defence.

§ Lord Bramall
My Lords, does the noble Lord agree that certain articles in the Convention on Human Rights could be interpreted as contrary to standard and proper military practice, and that a fast track for the redress of an immediate grievance in this respect might he disruptive to good order and military discipline? Does the noble Lord therefore agree that consideration of an appropriate safeguard in this area is now a matter of some urgency?

§ Lord Williams of Mostyn
My Lords, the noble and gallant Lord mistakes the fast-track procedure. As was carefully explained on a number of occasions by the noble and learned Lord the Lord Chancellor, when the High Court makes a declaration of incompatibility in respect of primary legislation, the fast-track procedure is simply designed then to offer the Minister the discretion to seek remedial action with the support of both Houses of Parliament. It has nothing to do with a complaint by an individual that he or she has been badly treated by the service authorities.

§ Lord Vivian
My Lords, is the Minister aware that under the existing clauses of the Human Rights Bill service personnel would be entitled to elect to go for trial by a civil court, bypassing the military system, when being tried by a commanding officer for a military offence? That would undermine the commanding officer's authority.

§ Lord Williams of Mostyn
My Lords, I do not accept that construction of the Bill in its present or contemplated form.

§ Lord Borrie
My Lords, drawing on my experience with Army Legal Services more than 40 years ago. I wish to ask the Minister whether he can reassure me that I am completely out of date in imagining that a court martial—constituted as it is of Army officers whose main allegiance is to military discipline—is not a suitable agency for the establishment of human rights.

§ Lord Williams of Mostyn
My Lords, I would not necessarily have used that precise formulation. As I believe underlies the noble Lord's question, the fact is that courts martial are ad hoc tribunals consisting, as he rightly said, of serving officers assisted by a judge advocate. That is not a procedure which is designed or intended for declarations of incompatibility of the kind to which I referred earlier.

§ Lord Campbell of Alloway
My Lords, is the Minister aware of the helpful correspondence that I have received from the noble Lord, Lord Gilbert? Has he seen it? I believe that he has, and in view of that, would the Minister in his position encourage the discussions taking place now, as a result of the Division on the matter, between the noble and learned Lord the Lord Chancellor and the MoD to seek to designate the military courts as the appropriate forum? Would the noble Lord encourage that?

§ Lord Williams of Mostyn
My Lords, plainly the Home Office, the Lord Chancellor's Department and the Ministry of Defence are in close liaison. I am familiar with the correspondence. The last letter was dated today so I hope that the noble Lord has received it. We made every effort to ensure that he did. What is said there—I paraphrase but I think fairly—is that these decisions have not been concluded and they will be the subject of rules which will be made following the Royal Assent but before the Bill becomes effective.

Lord Renton
My Lords, is the Minister aware that, under the Human Rights Bill as it left your Lordships' House, a conflict could arise between a decision already taken by one of Her Majesty's judges in the High Court in applying the European Convention on Human Rights and a decision by one of the commanding officers in Her Majesty's forces, without there being a court martial? Will the Minister ensure that in due course the Government put forward an amendment to the Bill which will resolve that conflict, preferably in favour of military discipline?

§ Lord Williams of Mostyn
My Lords, I do not accept that there is any necessary conflict between military discipline and the scheme of the Bill. If there are specifics, we are more than happy to look at any anxieties, as was indicated in the correspondence to which the noble Lord, Lord Campbell of Alloway, helpfully referred.