Lords Sitting of 16 December 1999

Preamble
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Southwark.

Rolls-Royce Nuclear Energy Services Ltd
Lord Methuen: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so I declare an interest as a sometime member of Rolls-Royce and a pensioner of that company, though never in the nuclear division.
The Question was as follows:
To ask Her Majesty's Government whether they are satisfied with the contingency plan to protect the public from the effects of radiation in the event of a major nuclear incident at the factory of Rolls-Royce Nuclear Energy Services Ltd at Raynesway, Derby.
The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, Raynesway is a civil site operated by Rolls-Royce to produce fuel for nuclear submarines. It is subject to UK civil nuclear regulations which are among the most stringent in the world. It is inspected regularly by the Nuclear Installations Inspectorate, which is part of the Health and Safety Executive. The Government are satisfied that the NII would not allow operations at the Raynesway site to continue unless it was fully satisfied that there was no unacceptable risk to the workers on the site or the public.
Lord Methuen: My Lords, I thank the Minister for her reply. However, is she aware of the extreme disquiet of local inhabitants about the siting of this plant in a largely residential area? Is she aware also that her colleague in the other place, Mr John Speller, said in a recent communication to Nick Clegg, MEP for East Midlands:
"Because there are to foreseeable off site circumstances of an accident at Raynesway, it has not been necessary to establish a public emergency plan".
In the light of the Tokaimura incident, which I know was a totally different process, does not the Minister feel that there should be such an emergency plan, because accidents can happen in spite of best endeavours?
Baroness Symons of Vernham Dean: My Lords, the noble Lord, Lord Methuen, is referring to a good deal of press coverage which was generated after the Tokaimura incident. That occurred in October this year. The main thrust of the arguments put forward in the press at that time was that Rolls-Royce were keeping their activities secret and that local residents were at risk because they did not know what was going on. There are two points here. First, regular visits—around every six weeks or so—take place when the NII
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seeks to ensure that the establishment is safe. Secondly, there is nothing secretive about what is happening at the site. A local liaison committee is hosted by Rolls-Royce. It was established at the site to provide a means of liaising with the community in order to provide the sort of reassurance that the noble Lord feels is necessary. I agree that it is necessary, but the disquiet is not based on any real problem at the site itself.
Lord Jenkins of Putney: My Lords, my noble friend told us that there are no "unacceptable" risks on this site. Can she now tell us what are the acceptable risks?
Baroness Symons of Vernham Dean: My Lords, I regret to say that risk is part of our everyday experience. I dare say that all of us on our way to your Lordships' House today ran some risk or other just in relation to traffic. When we are dealing with enriched uranium, which is a dangerous material, there must of course be stringent controls. The controls that the United Kingdom has in place are among the most stringent in the world. There are regular inspections and I can assure your Lordships that there is no reason to believe that there is any undue risk either to the workers or to the residents around the site.

Heathrow: Flight Path Changes
11.9 a.m.
Lord Annanasked Her Majesty's Government:
How often the flight paths into Heathrow airport are changed.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, the only fixed flight paths into Heathrow are those for the final approach; that is, after the aircraft have joined the instrument landing system. They are aligned with the runways and have not changed since the airport opened. They usually extend from 14 to 35 kilometres from touchdown, depending on how busy the airport is. There are no fixed routes for aircraft to follow before joining the final approach paths. A system of alternating the runway used for daytime landings at Heathrow during westerly operations has operated since 1972. This provides predictable periods of relief from landing noise for communities directly under the final approach paths up to about 12 kilometres from touchdown.
Lord Annan: My Lords, I thank the Minister for that reply. Is he aware that London is the only great city which has passenger aircraft flying over it into its main airport? It does not happen in Paris, New York, Berlin, Rome or even Athens.
I must declare an interest, in that I live in Pimlico. Is the noble Lord aware that in west London people in modest houses with tiny gardens like my own take pleasure from sitting out in the evenings and in the

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afternoon? However, it is almost impossible to do that when the noise of one aircraft as it disappears into the west is followed by the noise of another aircraft approaching from the east. Surely something can be done to ameliorate this situation, which affects anyone who lives west of Lambeth Bridge? Finally, does the noble Lord agree with me that it would be pure folly to have a fifth runway at Heathrow? Such a situation would be intolerable.
Lord Whitty: My Lords, in relation to the final point, the issue at stake is an additional terminal rather than an additional runway. It does not have direct implications in terms of number of movements but, given that it is a matter for public inquiry, the noble Lord will understand that I cannot comment in substance.
As it happens, I too live in Pimlico when I am in London and I am aware that a significant number of regular flights take place across central London. However, it is a much better situation than that which I experienced when I spent a fair proportion of my boyhood living in the Hounslow area. At that time the level of noise from individual aircraft was considerably higher and there were more night flights. Technology has significantly improved the amount of noise that comes from aircraft. There will be another change in that in the year 2002, when the Chapter 2 aircraft will be phased out entirely. That will again improve the noise levels.
As to whether it is necessary for aircraft to pass over central London, it is an advantage that aircraft landing rather than aircraft take-off occurs over the built-up area, because take-off, at least in the immediate vicinity, is much noisier.
Lord Elton: My Lords, the fact that things are worse in Hounslow surely does not make it undesirable to make things better in Pimlico. Can the Minister tell us whether he manages to sleep at night with his window open, or does he, like many residents who live west of London, find it impossible to sleep healthily because of aircraft noise?
Lord Whitty: My Lords, the comparison I was making was with Hounslow in the 1950s and 1960s, when aircraft were considerably noisier. Clearly it is of benefit to reduce the total amount of noise to any communities which are overflown. Indeed, the international aircraft industry has made great advances in recent years, while meeting increased demand. As regards my sleeping habits, I shall not bother the House any further in that respect.
Lord Jenkins of Putney: My Lords, is it not the simple truth that there have far too many aircraft landing at Heathrow and that a substantial number of them should be obliged to land at other London airports which are available?
Lord Whitty: My Lords, put simply, there is a significant increase in air traffic. Although much of it
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has been taken care of by increased capacity of individual aircraft, the demand is there and it is on all London airports. It would be difficult to see any significant reduction in the number of aircraft going into Heathrow in the foreseeable future. Although we take an overall approach to regional airport planning, the pressure on London airports as a whole is likely to remain.
Baroness Thomas of Walliswood: My Lords, can the Minister tell us whether anything has been done to alter the profile of the landing path by bringing the aircraft in at a higher level nearer to the threshold?
Lord Whitty: My Lords, the air traffic control operates tactically to get aircraft into the final approach level. I cannot explain this very easily without visual aids, but there are four stacking places as they come into the final approach. Depending on the weather conditions and the wind, some aircraft start further out and from a higher level than others. However, all that forms part of the tactical decisions that the air traffic controllers have to take as regards the aircraft, and so on, on the particular day. Of course, at the end of the day they all have to come down to the same level.
Baroness Gardner of Parkes: My Lords, is the Minister aware that there are a number of us in the Chamber who thoroughly approve of the present number of flights at Heathrow and would like to see more of them? Does the noble Lord realise that some of us do not agree at all with the opening remarks of the noble Lord, Lord Annan, about the important airports of the world and that we would add Sydney, Rio and many of the Asian airports to that list, all of which do have air terminals and airports that are very close to their main cities? Indeed, this is an added tourist attraction. Further, is he aware that every night my husband welcomes the sound of Concorde flying over and hopes that it may long continue? There are many people living in central London who are not disturbed by air traffic noise. However, we have every sympathy with those living right next to an airport.
Lord Whitty: My Lords, I bow to the noble Baroness's experience of airports of the world. When the noble Lord was speaking, it certainly occurred to me that there are a number of airports that are situated closer to the city centre than is the case with Heathrow. The importance of Heathrow to our economy and to our well-being is very much recognised by this Government. That involves a significant number of movements into London.
Lord Peyton of Yeovil: My Lords, perhaps I may persuade the noble Lord to go a little further into something that he referred to a short while ago; namely, another improvement in noise levels. Not everyone is aware of there having been any improvement at all. Will the noble Lord just think a little about the effect of these constant flights over Kew

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Gardens, where the real delights and beauty of the place are spoilt to a very large extent by this awful phenomenon?
Lord Whitty: My Lords, since the noble Lord had responsibility for these matters, I believe that the noise of aircraft has significantly reduced. However, perhaps I am wrong in that respect and civil aviation was not part of his portfolio at that time. If that is so, I apologise to the noble Lord. I am not entirely familiar with the changes in Whitehall boundaries.
Lord Peyton of Yeovil: My Lords, the department of which I was a very humble part thought that air transport had nothing to do with transport.
Noble Lords: Oh!
Lord Whitty: My Lords, I think that we can see the progress that has been made by my right honourable friend the Deputy Prime Minister in this respect. There have been very significant changes. When comparing weight for weight current aircraft noise is actually something like a sixth to a tenth less than was the case previously. There are also more movements and aircraft are larger. Nevertheless, as compared with about a decade ago, the average aircraft is half as noisy as it was in the past. That is a great tribute both to those who put pressure on the manufacturing industry and to the industry itself world-wide.
Lord Glenarthur: My Lords, following the question of my noble friend Lord Elton, what is the earliest time in the morning at which aircraft may make an approach to Heathrow? At what times are aircraft switched over from the north to the south runway at Heathrow?
Lord Whitty: My Lords, the two shifts, as it were, run from seven o'clock in the morning to three o'clock in the afternoon and from three o'clock to eleven o'clock at night. We shall shortly introduce a night-time alternation. There are few take-offs but many landings at night.
Lord Glenarthur: My Lords, I asked what is the earliest time in the morning at which an aircraft may make an approach to Heathrow. I think that it is probably about half-past four. I say that as I too am a resident of Pimlico!
Lord Whitty: My Lords, we have greatly restricted night-time flying into Heathrow although, strictly speaking, there is no absolute ban. We have limited the number in agreement with the airlines and the airport. Take-offs tend not to occur before four o'clock in the morning.
Lord Weatherill: My Lords, there is a rumour that Biggin Hill may be developed as a further large airport. Is this a rumour or a fact?
Lord Whitty: My Lords, there are rumours around the country that almost every former military airport
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is about to be turned into a mini Heathrow. A number of schemes exist but no decision is pending as regards Biggin Hill or the vast majority of the other airports which are the subject of rumours.

UN Security Council: UK Veto
11.21 a.m.
Lord Marlesfordasked Her Majesty's Government:
Whether they intend to retain the United Kingdom's veto seat on the United Nations Security Council.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, we are opposed to any change to the current veto rights of permanent members of the UN Security Council. But the UK has long argued that the veto should be used with restraint and in a manner consistent with the principles of the Charter. We have been true to our word. It has been almost 10 years since the UK last cast a blocking vote.
Lord Marlesford: My Lords, I thank the Minister for that robust Answer. I recognise, as it clearly does, that Britain's role as a veto power in the Security Council is part of our position as a pivotal power in the world. What plans do the Government view as possible for the enlargement of the Security Council permanent membership, and does that inevitably mean that additional permanent members would be veto members? Will it be possible to constrain the number who would be admitted to make the council continue to be workable as it has begun to be since the end of the Cold War?
Baroness Scotland of Asthal: My Lords, no decision has been made in relation to whether any of the countries who may be invited to figure in enlargement should have vetoes extended to them. That matter will have to be discussed in due course. We do not believe that expansion only in the non-permanent membership would restore confidence in the council, nor would it accurately reflect the realities of the modern world. We are hopeful that things will move forward to enable enlargement to take place.
Lord Stewartby: My Lords, I also welcome the noble Baroness's robust first reply to my noble friend. Does she agree that the United Kingdom is in an unusual position in having no pretensions to be a super power but nevertheless possessing an effective military capability? It has a long history of respectable participation in international affairs and a distinguished record in peacekeeping and other security matters. It is therefore not only in the United

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Kingdom's interest that we should retain this position; it is in the interests of the wider international community as well.
Baroness Scotland of Asthal: My Lords, I respectfully agree.
Lord Wallace of Saltaire: My Lords, can the Minister tell us how further development of a European common foreign and security policy affects the position of both Britain and France as permanent members of the UN Security Council as well as the third elected seat normally occupied by a member of the European Union?
Baroness Scotland of Asthal: My Lords, there will be no significant change in relation to the permanent membership. The rules of course will be looked at in terms of enlargement, but there will be no significant change.
Lord Moynihan: My Lords, does the Minister agree with the view that intra-state conflict increasingly poses as much of a threat to international stability as inter-state conflict and that as a result the United Nations has been much more actively engaged in peacekeeping roles in its very recent history than possibly in the whole of its previous history put together? At the same time the cases of Kosovo and Iraq have demonstrated that the more frequent use of military force under Chapter VII of the UN Charter increasingly poses a threat to Security Council unanimity and the consensus-based nature of UN politics. In that context, can the Minister outline the ways in which the Government intend to take a fresh lead in rethinking the UN's role in contemporary world politics?
Baroness Scotland of Asthal: My Lords, I agree that we are faced with a new challenge in terms of intra-state conflict as opposed to inter-state conflict. We are firmly of the view that Security Council enlargement would assist in terms of developing a new way forward. Your Lordships will know that the humanitarian aspect has been incredibly important. That is something that we intend to continue to pursue with the Security Council to enhance consensus and improve the way forward.

RN and RAF Patrols: Christmas
11.26 a.m.
Lord Burnhamasked Her Majesty's Government:
Whether full naval and Royal Air Force patrols will continue over the Christmas period.
Baroness Symons of Vernham Dean: My Lords, emergency services such as search and rescue and the RAF's Quick Reaction Alert will be on standby over the Christmas period, as they are every day. Depending on operational commitments, most Royal
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Navy ships and submarines will be in port, either in the UK or in overseas operational theatres. RAF operations overseas will continue as necessary, but normal training will be suspended. These arrangements are applied annually at this time to allow as many servicemen and women as possible to spend time with their families. A full defence capability will be maintained over the period.
Lord Burnham: My Lords, I thank the noble Baroness for that reply. However, is it true to say that only designated tasks, such as Yugoslavia and the Gulf, will result in ships being at sea? The noble Baroness also mentioned flying training. Can she confirm that, because of a shortage of money, all flying training and operational flying has been cut by the Government by 50 per cent?
Baroness Symons of Vernham Dean: My Lords, we are in a little difficulty with this Question. The noble Lord's Question specifically refers to the Christmas period. The fact is that there is nothing unusual happening over the Christmas period. As regards the Royal Navy, plans are unchanged; the majority of the fleet will be alongside. HMS "Exeter" will be in the Gulf, HMS "Somerset" will be in the South Atlantic and HMS "Dumbarton Castle" will be in the Falklands. I believe that the noble Lord is concerned about the Navy in the post-Christmas period. The noble Lord has also asked about the RAF. As regards the RAF, it is a case of business as usual. Operations have been unaffected by any of the financial constraints to which the noble Lord refers. Operations within individual theatres will continue under the command of local commanders.
Lord McNally: My Lords, I wonder whether the Minister can indulge in some joined-up government with her noble friend Lord Whitty, who has already demonstrated his mastery of air traffic control. My six year-old son expects a visitor on 24th December. If a Frank Dobson look-alike appears on the radar screen, will the RAF and air traffic control guarantee priority landing rights at the McNally household?
Baroness Symons of Vernham Dean: My Lords, I respectfully suggest to the noble Lord that there will be many priority households on that particular night. Were I to single one out, I am sure that many other six year-olds would be greatly disappointed. The important point is that the defence capability of the United Kingdom will be maintained this year over the Christmas and New Year periods, as your Lordships would rightly expect.
Lord Jenkins of Putney: My Lords, will Trident be on full alert over Christmas?
Baroness Symons of Vernham Dean: My Lords, as the House would expect, there will be a deterrent submarine at sea over the Christmas period.
Lord Monson: My Lords, will British servicemen on naval patrol in the Gulf be permitted to enjoy pork

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sausages with their Christmas turkey, in contrast to their unfortunate land-based counterparts stationed in various parts of the Middle East, if press reports are accurate?
Baroness Symons of Vernham Dean: My Lords, I have a feeling that we are straying a teeny bit away from the original Question. I am sure that all servicemen and servicewomen who are not able to have the pleasure of being with their families at Christmas—as most of us are—will none the less enjoy thoroughly good food wherever they are.
Lord Mackie of Benshie: My Lords, it is unlikely that there will be a major attack on this country over the Christmas period, but does the Minister agree that, as the late Lord Cheshire warned, this could be the kind of period when a terrorist might mount an attack?
Baroness Symons of Vernham Dean: My Lords, far be it from me to detract from the seasonal goodwill which we all expect to evince at this time of the year. We should not, on the one hand, talk up the possibility of people thinking that our defences are down over Christmas; or, on the other hand, overlook the possibility of an eventuality of the kind to which the noble Lord alluded. The important point is to remember what I said in concluding my original Answer to the noble Lord, Lord Burnham: that a full defence capability will be maintained for the people of this country over Christmas and into the New Year.
The Earl of Northesk: My Lords, notwithstanding the Minister's initial difficulty with this Question, can she confirm that Flag Officer Sea Training is being reduced to using simulators because financial shortages are pre venting ships from putting to sea for training?
Baroness Symons of Vernham Dean: My Lords, it is important to distinguish which period we are talking about. In my Answer to the noble Lord, Lord Burnham, I was able to assure him that, in relation to the particular Question he posed about the Christmas period, there are no changes. However, some adjustments will be made to planned activity after the Christmas period—a point which I hope I made clear in answering the supplementary quest ion of the noble Lord, Lord Burnham. For the remainder of the financial year, it is proposed that there will be some withdrawals from planned exercises. It is important, however, to assure the House. These withdrawals have to be put into the context of the enormously busy and highly successful year that the Royal Navy has enjoyed. Apart from normal operations in the Gulf, the Atlantic, fishery protection and normal deterrence, we should not forget that the Royal Navy has been extremely active and very successful in Sierra Leone, in the Gulf, in Kosovo and in East Timor. It has had a very good year.

Business
11.33 a.m.
Lord Carter: My Lords, at a convenient moment after 12.30 p.m. my noble friend Lord Bassam of Brighton will, with the leave of the House, repeat a Statement that is being made in another place on the European Court of Human Rights' judgment in the case of Thompson and Venables.

Learning and Skills Bill [H.L.]
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, I beg to introduce a Bill to establish the learning and skills council for England and the national council for education and training for Wales; to make other provision about education and training; and for connected purposes. I beg to move that the Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Baroness Blackstone.)
On Question, Bill read a first time, and to be printed.

Census (Amendment) Bill [H.L.]
Lord Weatherill: My Lords, I beg to introduce a Bill to amend the Schedule to the Census Act 1920 to enable particulars to be required in respect of religion. I beg to move that the Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Weatherill.)
On Question, Bill read a first time, and to be printed.

Business of the House: Consolidated Fund Bill
Lord Carter: My Lords, on behalf of my noble friend the Leader of the House, I beg to move the Motion standing in her name on the Order Paper.
Moved, That Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with to allow the Consolidated Fund Bill to be taken through its remaining stages today.—(Lord Carter.)
On Question, Motion agreed to.

Armed Forces Discipline Bill [H.L.]
11.34 a.m.
Baroness Symons of Vernham Dean: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Symons of Vernham Dean.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Peyton of Yeovil Lord Peyton of Yeovil moved Amendment No. 1:
Before Clause 1, insert the following new clause—
("Consolidated text of Acts
CONSOLIDATED TEXT OF ACTS
. On the day on which this Act comes into force, the Secretary of State shall lay before Parliament a copy of the consolidated text of the following Acts—

(a) Army Act 1955,

(b) Air Force Act 1955, and

(c) Naval Discipline Act 1957.").

The noble Lord said: In moving the amendment, which I hope will not take long, I realise that I am sailing what is a well-entrenched pillar of our constitution; namely, that our legislation should not be easily understood.
It has been a matter of increasing regret and concern to me over the years that I have spent in Parliament that Parliament and its masters should give so little thought to the difficulties which confront those who have to handle bulky and very often incomprehensible legislation. It is poured out in huge quantities by successive governments; often it is of a very low quality; and it is handed to Parliament for a kind of churning process to bring it to some kind of handleable state.
I realise that this is not the moment to dilate on the complexity or the incomprehensibility of our tax laws and the host of regulations which flow from them. I am concerned with the simple point that those in the Armed Forces who have to handle this legislation should have it presented to them in a form at least as acceptable as possible. I am not now talking about someone's ability to understand it—or the possibility of it being understood by anyone—but about the number of documents which those responsible for implementing the law have in front of them when they are trying to find out what the position is. The amendment seeks slightly to reduce the difficulties, in that it would make it possible for those concerned with the legislation to have in front of them not two versions of an Act but one.
I am obliged to the Minister for kindly writing to me on this subject. Perhaps I may have her permission to quote one short paragraph of her letter. I am not entirely sure what it means. I have a slight suspicion that maybe it is not her own lucid drafting. It states:
"This production of consolidated texts will be repeated next year in order to reflect any changes in the meantime, including those arising from the Armed Forces Discipline Bill itself. This will be because of the introduction in the next session of the quinquennial Armed Forces Bill".
Would the noble Baroness be kind enough to enlighten the House on what exactly is meant by that paragraph?
Perhaps I may briefly mention the report of the Select Committee on Delegated Powers and Deregulation. One sentence on page 3 of the report
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indicates at least the possibility of very considerable complexity becoming a permanent ingredient of this subject. The sentence reads as follows:
"The rules will be part of a framework consisting of existing legislation and subordinate legislation made under it. The whole will have to be compatible with Convention rights under the Human Rights Act 1988".
I believe that there are grounds for concern here and I cherish the hope that this modest amendment will be accepted by the Government. As I said at the beginning of my remarks, I realise that some quarters—I hope that I should not include the noble Baroness in this—regard it as a dangerous attack upon the principle of the constitution, which requires legislation in all its forms to be as complex and incomprehensible as possible. I beg to move.
Lord Molyneaux of Killead: The amendment tabled by the noble Lord, Lord Peyton, addresses the longer term, once the legislation has been implemented. However, in his remarks and in the words he quoted from the letter of the noble Baroness, it appears that some thought has been given as regards the short term. It is upon that aspect of the matter that I should like to say a few words.
Perhaps I may give an example. If a base established in the United Kingdom is occupied by two formations of Her Majesty's Forces and the principle of "jointery" has already been implemented, what would be the position of a commanding officer of one of those services when sentencing one of his own men? Would it be possible for the accused, upon conviction, to appeal to the base commander as a second step? The commander may—indeed, probably would—be from another service and operating under an entirely different Act.
If the accused then appeals to what is referred to in the Bill as a judicial officer appointed by the Judge Advocate General, will both of those legal figures be conversant with the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957? In other words, will there be "jointery" in the legal world to match "jointery" in the Armed Forces?
Lord Renton: I wish most warmly to support the amendment of my noble friend Lord Peyton of Yeovil, which I consider to be important. The three Acts referred to, which are listed in the Long Title of the Bill, in any case overlap to a great extent. If they were to be consolidated, the statute book, which is getting longer and longer, would be shortened. We should do all we can to enact matters in a more concise way.
Furthermore, I am sure that no one will dispute the fact that over the past 60 years—perhaps a little—longer there has been a fortunate tendency for the three Armed Forces to draw closer together, not only in peace-time but also in war. That being the case, I should have thought that to have one discipline Act for all three Armed Forces would be a very great practical advantage.
Lord Elton: Will the noble Baroness consider a case that will soon arise, perhaps to illustrate her response

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to my noble friend Lord Renton? When the Tri-service College is established at Shrivenham, will the commandant of that college, who might be an airman, when he hears a case involving a seaman, apply to the offender the disciplinary procedures relevant to that service?
I apologise to noble Lords if l expressed that inelegantly. More plainly, the commanding officer will have men from other services under him. No doubt that already applies and there is already a convention as to which rules are to he used when the case is heard. However, it would be helpful if, when the noble Baroness replies to my noble friend, she could explain to those noble Lords who do not know, how the system works in a case of that sort.
Lord Craig of Radley: I wish to support the amendment tabled by the noble Lord. Lord Peyton. In my comments during the Second Reading debate, I expressed my unease about the very short time that would pass between the Bill before us receiving Royal Assent and 2nd October 2000, when the implications and practical detail of the legislation will need to be applied in reality i n all three of the armed services. Any action that would assist those who will need to disseminate the required information and ensure that the law is followed properly is to be supported. I believe that the proposal contained in this amendment would do that.
Lord Campbell of Alloway: I wish wholly to support what my noble friend has proposed in his amendment. As I understand it, there is substantial disparity between the three service discipline Acts. Perhaps I may ask, therefore, whether, in order to consolidate, one would not first need to remove those substantial disparities. Would that not require further short legislation?
Lord Renton: With great respect to my noble friend, I should have thought there would be only an occasional clause that would need to be addressed as regards disparity. I agree that it would be necessary to deal with it, but I do not think that that would take up too much of any consolidation measure.
Lord Mackay of Drumadoon: I, too, wish to support the amendment of my noble friend Lord Peyton. He referred to the principle that legislation should not be too easily understood. As a practising lawyer, I have some sympathy with that proposition. Therefore, to some extent it is with mixed emotions that I offer my support to my noble friend.
However, it is undoubtedly true that when one studies the Bill and searches for the existing law, it is not at all easy to find. Perhaps I may make one practical suggestion. Would it be possible for the Government and parliamentary counsel to draw down from their computerised statute law database a print of the relevant Acts in their present form and to make those available in the Library? That would assist noble Lords at later stages of the Bill. Several noble Lords will be aware that the Government plan to make all
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statute law presently in force available on the Internet, and that they hope to do that in the course of the next year. However, if for any reason that has not proved possible to achieve, perhaps the relevant Acts that refer to the Bill before us could be placed in the Library. That would be of great assistance.
In regard to when it would be sensible to consolidate, I incline to the view that it might be better to do that in the next Session; namely, after the new armed forces Bill heralded by the Minister during her speech at Second Reading has gone through your Lordships' House. I foresee that implementation of the Human Rights Act will bring forth problems other than those which the Bill seeks to address. While I believe that the Ministry of Defence are to be congratulated on facing up to the implications of that Act by bringing forward the Bill before us, the debate which took place at Second Reading made it clear that it will not be an easy exercise to reconcile all the different interests involved. I should like to propose—I hope that this will find favour with the Minister—that in the next Session, in tandem with the substantive Bill to alter the law, a consolidation Bill should move through its procedural stages so that the two Acts of Parliament would come into force, one immediately following the other.
Lord Annan: I add my voice in support of the noble Lord, Lord Peyton. When dealing with a subject such as discipline, it is extremely important that the legislation should be clear. Whether or not we like it, attitudes to discipline have changed over the past 30 or 40 years. In my day as a don at Cambridge, if an undergraduate was sent down, he went down. Now, of course, he does not. He argues the case before a tribunal and then an appeal court to that tribunal. It is extremely important that anything to do with discipline should be crystal clear. I therefore support the noble Lord, Lord Peyton.
Lord Glenarthur: I support the amendment moved by my noble friend Lord Peyton and I agree with the point made by my noble and learned friend Lord Mackay of Drumadoon. Over the years I have had experience of trying to get from the Library an up-to-date text of Acts that have been amended many times. I wonder whether the Minister can say how often statutes in force in respect of this matter are amended. When was the most recent amendment to statutes in force? Those of us who are not as familiar as my noble and learned friend Lord Mackay with getting their data over the Internet might still like to get the information from the Library. What delay is there in bringing these statutes up to date for easy reference?
Lord Burnham: My noble and learned friend Lord Mackay of Drumadoon made an important point when he referred to the difficulty that he, as a lawyer, has in understanding legislation to do with the military. Members of the Committee on all sides have united in supporting my noble friend Lord Peyton, and I do the same. The Bill has an enormous number of amendments—not on a Greater London Authority

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Bill scale but an enormous number nevertheless. One of the major reasons is that virtually every amendment has had to be repeated two and even three times. Therefore, I ask the Minister to consult the draftsman, who will have nothing to do over Christmas, to see whether by the next stage of the Bill we can have a serious go at consolidating the Armed Forces discipline Acts. They are 40 years old. The European Convention on Human Rights, with which we are much concerned in the Bill, is 50 years old. We would make a nonsense of the matter if we let the Bill go through in the form in which it stands at the moment.
Baroness Symons of Vernham Dean: The noble Lord, Lord Peyton of Yeovil, has highlighted the difficulties encountered by anyone trying to read the three service discipline Acts. Since being enacted in the 1950s they have been very heavily amended and no one can claim that they are easy to follow. However, the Committee will know that it is the practice of departments introducing primary legislation that amends already heavily amended legislation to prepare updated texts of the existing legislation and place those in the Libraries and the Public Bill Offices of both Houses. That is an aid to Parliament's consideration of the amending legislation. On that basis, updated copies of the Army and the Air Force Acts 1955 and the Naval Discipline Act 1957 have been prepared and were recently placed in the Libraries of both Houses.
The Acts will be further amended if Parliament enacts the present legislation. In the next Session we expect to introduce the quinquennial armed services Bill. That Bill will cover a wide range of different issues. I am sure that Members of the Committee would not expect me to anticipate those in any detail at this stage. It follows that at around this time next year we will have prepared further updated texts on the discipline Acts and we will put those further updated texts on the discipline Acts in the Libraries of both Houses. I hope that that process is found to be of value. I am sure that many noble Lords still deal with matters, as I do myself, very much on a paper basis, but the updated texts are also available electronically.
We acknowledge that there has been a longstanding intention to consolidate the service discipline Acts. I strongly agree with a great deal of what the noble Lord, Lord Peyton, said about the need to consolidate the Acts. That point was made by a number of noble Lords. However, I would say that this is a task of a rather different order and one which has to produce a new baseline of service legislation. The Government are considering moving now to a tri-service discipline Act. I hope that that provides the assurance which was sought by the noble Lords, Lord Molyneaux, Lord Renton and Lord Burnham, and by the noble and learned Lord, Lord Mackay of Drumadoon. It is important to stress that that will be a major undertaking. We expect to receive advice. It will take some time for us to consider the best way forward but we must have a look at consolidating the Acts. Such a consolidation would supersede the current legislation.
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I hope that I have been able to assure the Committee that we are addressing both the substance and the presentation of the issue. Both are important if people are properly to understand the discipline under which they operate as individuals in the armed services and if the rest of us are to understand the way in which the armed services operate. On the basis that updated, "cleaned up" texts, if I may put it that way, are available in both Houses, that they are available electronically, and that consideration will be given to consolidation of the Armed Forces discipline Acts, I hope that the noble Lord, Lord Peyton, will feel able to withdraw his amendment.
Lord Elton: We are in Committee and therefore I do not think I need apologise for coming back to this point or for speaking from a certain background of ignorance. What has concerned me about the exchanges—I refer to the point made by my noble and learned friend Lord Mackay of Drumadoon—is that we have been referring only to our own difficulty in dealing with the legislation. But where it matters is in the field. Officers—quite junior officers—will be expected to untangle this great web of legislation. They will be expected to know what to do and how to restrain or to keep in custody people from their own service, let alone of another. I would be much more comforted by news of how that difficulty is to be resolved.
Baroness Symons of Vernham Dean: I agree with the noble Lord, Lord Elton. It is important that those in the field, at whatever level, understand the discipline under which they are operating. There will need to be proper understanding within all three armed services of any changes brought about by the legislation. The services at all levels want to introduce the compliant disciplinary procedures in the Bill as soon as possible. Ideally, they would like the revised procedures introduced in the current legislative Session. I can tell the Committee that that is the firm recommendation of the chiefs of staff. If such legislation is to be enacted, of course it is then incumbent on the chiefs of staff and those who support them, and indeed the civilian administration, to ensure that the provisions are properly understood, not only by such people as your Lordships but also, as the noble Lord, Lord Elton, said, out in the field where it really matters.
Noon
Lord Peyton of Yeovil: I have no wish to quarrel with the noble Baroness. She listens with care and answers with courtesy and intelligence. What more could one ask of a Minister—except perhaps that she should utter the very simple words, "Yes, of course I accept this". She disappointed me in that rather important point.
First, I was sorry that the noble Lord, Lord Molyneaux, found it difficult to understand the purpose of my amendment. I thought it was so clear that I did not need to go into it in any detail. We wanted to avoid the unfortunate people who will have to handle the legislation being faced with too many documents, all of them complicated, at the same time.

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I echo the point made by my noble friend Lord Elton. I am not in the least concerned with parliamentary convenience. Some of us are quite good at complaining. I am not very good at it. I am sure that I shall learn in time. We do our best to raise our voices every now and again when we are singularly ill treated by authority. At least we have a means of redress. The unfortunate commanding officer faced with the problem will have no such means of redress. He will simply be saddled with the various fragments of this indigestible lump. I hesitate to use the word "consumer" about anything so indigestible, but I have considerable sympathy with the ultimate user of the legislation. I invite the Government to show the same sympathy and understanding as are clearly felt by those who have spoken to the amendment. I am not sure that the noble Baroness's reference to the quinquennial Act took me too far down the road to understanding what will happen. I do not know exactly how that Act will help and whether it will meet the point that I raise.
Towards the end of her remarks, the noble Baroness used the phrase, "a major undertaking". I am not sure that I am all that sorry about asking the Government to carry out a major undertaking. If there were some more effective deterrence to governments before they put forward ill-thought-out and incomprehensible legislation I should be happier.
I am grateful to noble Lords who have taken part in the debate for their eloquent support on the simple but important point enshrined in the amendment. I am grateful to the noble Baroness for having gone as far as she has and in the way that she has. I still hope that she will consider the point again and chide her department a little. She might also remind her department that, after a long struggle, it is now a unified Ministry of Defence and that co-ordination is its business. Co-ordination is one of those "boss" words used by Ministers when they have nothing else to say; they say that their job is to "co-ordinate". There is one thing of which we can be certain: any time that anyone starts co-ordinating anything, whether it be road traffic or armed forces, they will encounter the objections of people who do not wish to be co-ordinated. Again and again, governments meekly surrender. I shall consider carefully whether to return to this point on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Burnham Lord Burnham moved Amendment No. 2:
Before Clause 1, insert the following new clause—
("Active service exclusion
PERSONS ENGAGED UNDER ACTIVE SERVICE CONDITIONS
. Engagement under active service conditions on the part of a person to whom the provisions of this Act would otherwise apply shall constitute for the purposes of Article 15 of the European Convention on Human Rights 1951 and the Human Rights Act 1998 a state of public emergency in relation to that person.").
The noble Lord said: It is interesting to note how the various parts of the, Bill link together. Both my noble friend Lord Peyton and my noble friend Lord Elton
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spoke to this amendment. The amendment is grouped with Amendments Nos. 3 to 14 and 77. They fall into separate groups.
I must confess that I started off by looking at the Bill with regard to the difficulties of implementing it, if it is enacted, in the field. It is a problem. I am sorry that the noble Lord, Lord Annan, is not in his place. He seems to confuse undergraduates and soldiers. He seems to think that everything that can be applied to an undergraduate can be applied to a soldier, and vice versa.
There will be many occasions when it will not be possible for this legislation to be operated because of the nature of the service. At Second Reading, a number of speakers, including myself, referred to problems in the field. We shall come in due course to the question of video links, which is dealt with in a later amendment. I am sorry that my noble friend Lord Vivian is ill and is unable to be present. He and my noble friend Lord Attlee, as the most recent serving soldiers, have the best knowledge of what actually goes on.
My Amendment No. 77 makes it clear that in no way are we attempting to get out of applying justice in the way in which it is envisaged by the European Convention on Human Rights or the Human Rights Act. What concerns us in these amendments is the timing, and that it is just not possible to operate in the manner prescribed.
I shall be interested to hear what my noble friend Lord Campbell of Alloway has to say on the matter raised in Amendment No. 2. On the basis of the principle behind the amendment, he originally added his name to it before actually seeing it, and has since withdrawn his name. I recognise clearly that Article 15 of the Convention on Human Rights refers to,
"a war or other public emergency threatening the life of the nation".
In no way is it considered that in many cases where we should wish to implement Amendments Nos. 3 to 14 is there a public emergency threatening the life of the nation. However, there are plenty of matters of a lesser nature which are extremely important.
Section 224 of the Army Act would allow the discipline provisions, if this were applied, to be operated for discipline in Northern Ireland, where in the past the definition of active service used has included armed mutineers, armed rebels, armed rioters and pirates. Other parts of the Bill refer to international conflict. I appreciate that it would be difficult to argue that the work of the Armed Forces in Kosovo was, in the words of the convention, a
"public emergency threatening the life of the nation".
The amendments are slightly different. Amendment No. 2 is an overriding amendment and its purpose is that there should be a derogation when Article 15 of the European Convention on Human Rights is involved. In those cases it may be that the Bill is unenforceable. The other amendments deal with active service conditions; they roughly propose the same and

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we are trying to change the timing. Amendment No. 77 makes it clear that we are not trying to get out of it. The amendment states that if the time limits are,
"disapplied by reason of active service conditions, [they] shall start to run twelve hours after the person arrested or the unit in which he is serving ceases to be on active service".
Amendment No. 2 is a matter of principle, Amendments Nos. 3 to 14 are not; they are practicalities. I hope that the noble Baroness will give consideration to the serious problems which will arise as a result of the Bill as it stands. With that, I beg to move.
12.15 p.m.
Lord Campbell of Alloway: My Lords, there are difficulties with Amendment No. 2, but the Committee may believe that Amendments Nos. 14 and 77 are wholly requisite and well founded. The difficulty presented by Amendment No. 2 is this. My noble friend says that it is an overriding amendment and there should be some derogation from Article 15. The difficulty is that, to be effective, derogations from Article 15 have to take place at the time that the convention is ratified. They cannot be introduced by the domestic legislation of member states in any event. Article 15 relates to measures taken by the high contracting parties in a public emergency in which the life of the nation, the high contracting party, is threatened. It is not in any way concerned with the situation affecting an individual person.
The amendment proposes an interpretation of Article 15 which it cannot bear. It would not be appropriate to seek to re-write the provisions of Article 15 or the 1988 Act as proposed by the amendment. Although this is a domestic statute, the Armed Forces discipline purports to implement other provisions of the convention.
I thank my noble friend Lord Burnham for tabling Amendment No. 2 because, as a probing amendment, it affords a valuable opportunity to discuss a practical omission from the Bill. I know that there are certain amendments, which I support, that Clauses 11 and 14 to 25 should not stand part. But let us assume that they do stand part. Amendment No. 89, in my name, concerns the appellate courts martial courts and deals solely with matters of the convention. Let us assume that it is rejected. As for some kind of exclusion clause, behind the concept of my noble friend Lord Burnham, there is the introduction of an exclusion clause. We should have an exclusion clause applicable to discipline in Her Majesty's Armed Forces engaged in armed active service, including peace-keeping. That is one of the reasons that Amendment No. 14, introduced by my noble friend Lord Burnham, is of such importance.
It is much to be doubted whether such an exclusion clause in our domestic legislation would be considered by the Commission or the Court of Human Rights to be in breach of any article of the convention. Let us take the following situation which is new, relevant and must be considered. Our Government and the French Government propose to enter into a joint enterprise
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and set up a rapid reaction force. I gather that it would be quite sizeable, 60,000. It is important that there should be no disparity of treatment as regards discipline as between members of that force. The noble and gallant Lord, Lord Carver, took the point on Second Reading that we know that France has opted out of the convention. We have not done that. The amendment which I proposed originally, which in a sense started this, did not seek to do that and I shall deal with it. It simply sought to remove the Armed Forces discipline problem from the fast-track procedure. The question of us opting out of the convention was never part of the argument.
It would be difficult to say so, but I cannot see that in the circumstances of the joint venture between the French and the English, the European Court of Justice could accept a form of substantial disparity in treatment. I suggest that the Court of Justice would not find an exclusion clause, roughly along the lines I proposed, in breach of any article of the convention. I thank my noble friend Lord Burnham for his probing Amendment No. 2, which gives an opportunity for discussion of that aspect of the matter if Members of the Committee so wish.
Lord Carver: My Lords, I find myself in a difficult situation, not being a lawyer. It seems to me that in practical terms it would not be possible, under severe active service conditions, to apply most of the provisions of the Act. Therefore, to my mind, the amendments should be supported.
One of the essential elements when one is on active service—and I mean active service, not just peace-keeping—is that one must deal with offences quickly. The man must return to his duties with the least possible delay. I accept that, for example, in peacekeeping operations in Kosovo or somewhere like that it would be possible, although very difficult, to apply the provisions as they now appear in the Bill. But if one were involved in more intense operations of the kind envisaged within NATO—for example, the Gulf, if it had gone on for longer—the provisions of the Bill could not be made to work unless someone who committed an offence was automatically removed from the theatre of war, which would be very undesirable. I therefore support the amendment.
One must be very careful about defining "active service conditions". In the Second World War every charge against a soldier, even for stealing a loaf of bread, started off "WOAS" (When On Active Service). I understand that that has not been used for nearly a quarter of a century. While I am not an expert on legal phraseology, I believe that somehow provision must be made for operations of higher intensity when it would not be practical to apply the measures as now set out in the Bill.
Lord Braman: Before I support the active service exclusion clauses tabled by the noble Earl, Lord Attlee, and the noble Lord, Lord Burnham, perhaps I may try to dispel one misapprehension which was aired or implied during Second Reading; namely, that invariably there is a conflict between justice and

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military discipline and, therefore, this Bill is necessary to strike a balance between those two essentials. I do not believe that that is the case at all. There may be some instances under operational conditions when justice must be a bit "rough". I can think of one example when I commanded a battalion on active service in the jungles of east Malaysia in a conflict against Indonesia. We experienced a rash of accidental discharges of weapons which constituted a great risk to our troops. I told the whole battalion that it should be fully aware in advance that if in future anyone committed the offence the punishment would invariably be 28 clays' detention. It concentrated the mind marvellously and stopped that dangerous indulgence just lire that. It was widely accepted as being necessary. In the circumstances, I believed that that was justice however difficult, if not impossible, it would have been to implement under the new Bill as it stands. At worst it saved possible injury and followed the two main principles of discipline: that the action should be consistent and that it should be thoroughly well understood. In any case, as the noble Lord, Lord Renton, pointed out during Second Reading, in such conditions discipline must come first.
If the whole Bill cannot be modified in the interests of service discipline—I trust that it can be as a result of what takes place later in the debate—I hope that it will be done at least in relation to active service conditions. Despite the views of the Adjutant-General's department or otter personnel departments, I ask the noble Baroness to look again at the whole question of differentiation between active service and home service. It is under active service conditions that the innovations in this Bill would cause the most damage. Further, as my noble and gallant friend said, these measures would be largely unworkable.
Lord Burnham: Before the noble Baroness replies, particularly in view of the observations of my noble friend Lord Campbell of Alloway, perhaps she will deal with Amendment No. 2 separately from the others. I believe that that is concerned with the principle and the others with practicalities.
Lord Mackay of Drumadoon: Having heard what the noble and gallant Lords, Lord Carver and Lord Bramall, said, many noble Lords will be of the view that some solution must be found to the problem they identified; namely, that in its present form the Bill can create difficulty when troops are engaged on active service. Very wisely, they do not go as far as to say that it will always create difficulty but, based on their long experience, they envisage that the Bill as presently drafted may lead to such a problem. As a lawyer but layman in military terms, I suggest that a solution to the problem requires to be found because of the possible implications for the authority of the commanding officer of a battalion, the morale of the troops who serve under him and the effect on the execution of the military campaign on which they are engaged at the relevant time.
I was present for most of the Second Reading and have read through the whole debate in Hansard. I have not seen any effective answer to the concerns raised on
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all sides of the Chamber. If a solution to the problem is to be found, perhaps the noble Baroness is prepared to consider, with her officials and advisers, the regime introduced by the Armed Forces Act 1996 for the purposes of determining whether it is necessary to hold a field general court martial as opposed to a general or district court martial. Section 103A of the Army Act, which was introduced by the 1996 Act, provides that,
"(1) Where an officer to whom this subsection applies—

(a) is commanding a body of the regular forces on active service; and

(b) is of opinion that it is not possible without serious detriment to the public service for a charge against a member of that body to be tried by a general or district court-martial,

he may direct that the charge be tried by a field general court-martial".
Later provisions introduced by Schedule 1 to that Act provide that such a field general court martial can sit without having as one of its constituent members a judge advocate. Therefore, the Act introduces a two-stage test: first, the commanding officer is required to be in command of a body of the regular forces on active service; secondly, he must be of the opinion that in the particular circumstances with which he is confronted it is not possible without serious detriment to the public service for the normal form of court martial to take place.
I believe that a solution based on that general approach may be one way to address the practical problem repeatedly identified today and by speakers during the Second Reading debate. If it were a way forward it might apply not only to the clauses with which this amendment is concerned but also to some other provisions which clearly cause concern to noble Lords on all sides of the Chamber.
Lord Wallace of Saltaire: I do not have military experience, but as a civilian I have studied defence from the outside for some time. Part of the difficulty with this amendment is to try to imagine circumstances today in which active service involves considerable periods of time out of contact with one's command structure. I recall a Royal Marine telling me of an occasion during the occupation of northern Iraq after the Gulf War when a Dutch marine attached to a British Royal Marines commander at one point referred back to The Hague before accepting the order of a British senior marine. Someone remarked to me the other day that even if the Prime Minister did not want to talk to you when on active service it was quite likely that someone from the BBC, CNN or Sky News would pop up to ask a question.
I do not believe that the kinds of military operations in which we were engaged even 20 or 30 years ago, when operations in jungle conditions, submarines or elsewhere were necessarily much more autonomous, apply today. I struggle to think of circumstances on active service under which such a broadly phrased amendment could be needed. There may conceivably be some extreme cases where emergencies may apply. The amendment is extremely wide and seems to me undesirable.
12.30 p.m.
Earl Attlee: I am grateful for the noble Lord's contribution. He identifies our concern about the principle of the need for military discipline. The noble Lord assumes that we shall never become involved in military operations which go horribly wrong. My great fear is that one day we shall be involved in military operations where we may be cut off from the command structure and MoD—and the noble Lord will be found to be wrong.
Lord Wallace of Saltaire: The most recent military operation which went horribly wrong was the Dutch involvement in Srebenica. Lack of communication was not part of that. Communications were extremely good. The failure to gain answers or reinforcements from outside was what was wrong in Srebenica. It was not a question of being out of touch.
Baroness Symons of Vernham Dean: I believe that the amendments have been grouped together because the noble Lord has a number of linked concerns about the operational effectiveness of the Armed Forces were the Bill to be enacted as it stands. The noble Lord has asked me to separate out the way in which I deal with what he describes as his point of principle on Amendment No. 2. I can then deal with the other amendments together if that is helpful to the noble Lord.
The intention of Amendment No. 2 is clear. However, I believe that the intention of Article 15 of the convention is clear, too. The article is quite specific in its provisions. Those are that any state may take measures derogating from the convention—and I quote, as did the noble Lord, Lord Campbell of Alloway—
"to the extent strictly required by the exigencies of the situation"—
and this may only be,
"in time of war or other public emergency threatening the life of the nation".
I believe it would be difficult to argue that the range of circumstances covered by the noble Lord's amendment would qualify for a derogation under Article 15. The noble Lord's amendment refers to "active service conditions". In another amendment they are defined as "active operational duties". I am sure that I do not need to remind noble Lords of the range of operational activities undertaken by our Armed Forces. They are all important. But I do not think any of us would suggest that they all amount to war. Of course they do not; nor do they all amount to dealing with emergencies which threaten the life of the nation.
Of course, we could try to argue that the operations in, for example, East Timor are of such a nature as to justify a derogation under Article 15 of the convention. This would be an issue on which we would ultimately need to persuade the Court at Strasbourg. We should have to demonstrate that we were at war or that the life of the nation was under threat. We should then have to demonstrate that our suspension of the relevant article of the convention was a proportionate act in the
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circumstances. I do not need to tell the Committee what expectation I have of the possibility of success in those circumstances. That was the point made by the noble Lord, Lord Campbell of Alloway.
I stress to the Committee that there are other issues at stake here. First, there is the Government's full commitment to the principles of the convention. The noble Lord, Lord Burnham, is right. This is an argument which goes to the principle of the legislation. It is the principle of being compliant with the convention that the Government seek to uphold in this legislation. The proposed amendment would run counter to that principle and to that policy as well as to the spirit and the letter of the convention.
Perhaps I may remind the Committee that it was in this Parliament, and not so very long ago, that we decided to commit ourselves to legislate upon the convention. I am sure that we shall have some discussions about the debate we had at that time.
Lord Bramall: I am obliged to the Minister for giving way. Does the noble Baroness accept that the wars in the Falklands and the Gulf would meet the conditions she mentioned?
Baroness Symons of Vernham Dean: That is a difficult point. As the noble and gallant Lord will know far better than I do, the declaration of a state of war has very specific legal implications. We can be in armed conflict without necessarily being at war. Indeed, it is often not in the interests of the United Kingdom when we are in armed conflict to elevate that to the level of declaring ourselves to be at war because of the difficulties that would emerge in the way that third party countries would have to treat the United Kingdom.
Of course there are circumstances where there are armed conflicts but where, as the noble and gallant Lord knows, and as has been clear in some recent conflicts, we do not declare war because of the difficulties that would arise with other legal relationships were we to do so.
Lord Burnham: I apologise to the Minister for interrupting her yet again. However, I must point out to her that in a debate in your Lordships' House earlier this week we touched on the difficulties of deciding what is a state of war. The Americans, who are normally our allies, have very different legislation on what is or is not a state of war. With respect, I do not think that her remarks to the noble and gallant Lord apply in those circumstances.
Baroness Symons of Vernham Dean: I agree with the noble Lord that there are different interpretations of a state of war. During the course of debates today perhaps I may ask my officials to ensure that I have placed in my hand the internationally agreed definition—I believe that there are such conventions—so that that is available to us. That may give us some help on the issue.

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I was referring to the passing of the Human Rights Act. When we discussed this legislation at Second Reading a number of noble colleagues referred to my noble and learned friend the Lord Chancellor who spoke on behalf of the Government at that time. My noble and learned friend said that there will be situations in which special considerations would have to apply to the Anned Forces because of the nature of their work. He added that it would be a matter for the Armed Forces to look at each situation on its merits and ensure that any actions they took were consistent with the convention rights as they would be applied to the particular circumstances of the case.
I was concerned during Second Reading that some noble Lords were perhaps tempted to believe that somehow that represented a kind of green light for the services to stand aside from the convention in the sense of this amendment, and some of the comments at Second Reading. The noble Lord shakes his head; I am happy to leave that point for the moment.
Having dealt with the point of principle, which is laid out in Amendment No. 2, perhaps I may turn to Amendment No. 14.
Lord Campbell of Alloway: I am obliged to the noble Baroness for giving way. Before leaving Amendment No. 2, I want to point out that, as regards war under public international law, there is no state of war unless there is a declaration of war with all that that entails. But so many armed activities go on all over the world, and have done so since World War II, which are totally akin to war. The situation is exactly the same, as are the questions of command and discipline, as in an emergency.
Therefore, when the noble Baroness examines the issue with her officials, will she not draw some artificial, legalistic distinction in public international law, but have regard to the practicalities on the ground?
Lord Craig of Radley: Perhaps I may add to that point. Servicemen who in recent years have operated in Kosovo and elsewhere have frequently been "on active service". That is their understanding and l believe that to be the position.
12.45 p.m.
Baroness Symons of Vernham Dean: I understand your Lordships' concern that there is no artificially restrictive position over what might be thought of as "a state of war" when we are considering the lives of servicemen who are engaged in active operations where there is an identifiable enemy. I undertake to try to help the Committee a little more on that specific point during the course of today's debate.
I turn to Amendments Nos. 3 to 14. I realise that they are the logical consequence of the wishes of the noble Lord, Lord Burnham, and the noble Earl, Lord Attlee, to ensure the effectiveness of the summary discipline procedure in operational circumstances. However, their amendments would insert provisions in the Bill that would allow the commanding officer to
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hold an individual in custody for an indeterminate period without ever having charged him with an offence. That would be the effect of the amendments.
There is no doubt in my mind that they are clearly and unequivocally incompatible with the provisions of the European Convention on Human Rights. No derogation from the convention would save them because, as I explained in relation to Amendment No. 2, we would have to demonstrate that we were at war or that the life of the nation was under threat. We should then have to demonstrate that our suspension of the relevant article of the convention was a proportionate reaction in the circumstances.
I appreciate that the purpose of the amendments is benign: to simplify matters for the commanding officer at times when he or she has other pressing preoccupations. However, I believe that we can address the noble Lord's legitimate concern. First, the Bill allows some latitude to extend the time before an individual is brought before a judicial officer, if the 48 hours provision is impracticable. That is proposed in new Section 75C(5) of the Army and Air Force Acts 1955 and new Section 47D(5) of the Naval Discipline Act 1957 as inserted by Clause 1.
Secondly, we in the Ministry of Defence are obviously planning how the provisions of the Bill will be implemented in practice. That is not going on in an abstruse part of the Ministry of Defence where only those who know a great deal about personnel management are to be found. It is being actively pursued by serving Army, Navy and Air Force officers; those who have current experience of dealing with men and women in the field.
The Bill provides for the use of television and other links. The thinking is very much along the lines that such resources will be used to the full, particularly in the types of conditions which are of great concern to the noble Lord and others. But for many, many months, work has been undertaken in the Ministry of Defence on how the practical measures, which we all understand, can be met and how the operational integrity of the Armed Forces can be preserved if the Bill is passed.
I turn to Amendment No. 77 tabled by the noble Lord, Lord Burnham, and the noble Earl, Lord Attlee. Like the amendments tabled to Clause 1, the amendment is not acceptable to Her Majesty's Government because it would insert provisions in the Bill that would allow the commanding officer to hold an individual in custody for an indeterminate period without ever having charged such an individual with an offence. I do not believe that we would be able to justify such an onerous measure in any circumstances.
When considering these amendments, it is important for us all to remember that concern to make the Armed Forces work as well as they can is not exclusive to your Lordships' House. It is under active consideration in the MoD and by current serving Army officers. Therefore, I say to your Lordships that, while the Armed Forces are determined to make the new procedures work, they are equally determined not to allow operational effectiveness to be jeopardised. Of

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course that is the case; that is their business. They do not want a discipline system that functions in one way in certain circumstances and in another way in other circumstances. They do not want a discipline that is divisive between those who would be caught by a derogation and those who would not.
We in your Lordships' House often talk about our respect for the brave men and women in our Armed Forces. I believe that we all need to do some joined-up thinking about the issue. We need to consider the import of such amendments on the perceptions of the men and women in our Armed Forces who will be subject to the disciplinary codes. The discipline system must be acceptable not only to the commanding officers but to those under their command. The men and women in our Armed Forces have rights, too, and we must respect the rights of those individuals.
I do not consider that the introduction of measures which would allow indefinite incarceration without charge and without trial is compatible with the kind of disciplinary system we need to see in our Armed Forces as we enter the next millennium.
Lord Renton: In view of the Minister's comments about being subject to the European Convention on Human Rights and having implemented that with the 1998 Act, perhaps I may remind her that, as soon as the then government of this country signed the convention, the people of this country became subject to it and had rights under it. However, they could not enforce them except by going to the European Court of Human Rights. That was why, unlike some of my noble friends, I felt that the Government were fully justified in having the convention enforced by our courts.
If I remember rightly, in 1952 the then government signed the convention. It could be said that all the problems to which the Minister referred have been in existence since then, but that has not stopped one government after another deciding to enact our own law independently of the convention. Given all those years of—if I may use the expression—"co-habitation" between two important matters, are the Government fully justified in now saying that because of the convention there can be no question of Army discipline asserting itself even on active service?
Lord Campbell of Alloway: My Lords, following my noble friend Lord Renton's intervention, I ask, with respect, whether the Minister could take on board his last question. Furthermore, in relation to Amendment No. 14, the Minister used the phrase, "preservation of operational integrity". Throwing the phrase back, there is no article of the convention, which I have here in my hand—I have been looking through it for about the 50th time—which states that preservation of operational integrity as such, and no more, if it could be justified, would be contrary to the convention.
The vast majority of signatory states to the convention possessed armed forces at the time when it was signed. It was implicit that they should be entitled to maintain discipline in their armed forces and to
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protect operational integrity. I wonder whether, when the Minister considers the matter with her advisers—I am not pressing her at all for a response today—she could consider looking through the convention. As far as I am concerned, it is common ground between the Minister and myself that Article 15 does not apply in this case. Where is the clear breach of which article of the convention that would arise from preservation of operational integrity?
Lord Mackay of Drumadoon: My Lords, before the Minister sits down, will she indicate whether she is prepared to undertake to look at the issue that I raised about the field general courts-martial? In reply to the debate on the amendment tabled by my noble friend, she said that one could not have one procedure working in one set of circumstances and another procedure in another set of circumstances. With respect, that seems to be what Section 103A provides. If the Minister is right about that, it raises sharply the issue of whether those provisions comply with the convention rights under the Human Rights Act.
I appreciate that the material is complicated and difficult and I do not expect an answer this afternoon, but I hope that the matter will be looked at because it seems to me that the thrust of the Minister's argument in reply to the principle argued by my noble friend is contradicted by existing legislation that she is not seeking to change in the present Bill.
Baroness Symons of Vernham Dean: My Lords, I undertake to look at that matter as the noble and learned Lord has kindly asked me to. This is extremely complex legislation. We are dealing not only with the usual array of magnificent support from the Civil Service and from civil service lawyers, but also of course from the military.
I shall attempt to return to the point raised by the noble Lord, Lord Renton, who reminded us that we signed the convention—I believe it was in 1951—and that we have managed to live with it perfectly reasonably without feeling the necessity to legislate in such a way. The amendments are now necessary because of the 1998 legislation, of which your Lordships are well aware, which brought the convention into our domestic courts.
I shall try to expand my explanation to the noble Lord. A failure to make such changes would render the system for service discipline subject to challenge in our domestic courts. The risk of frequent and successful challenges to the system would create an untenable position. That risk would seriously undermine service discipline and would seriously undermine the authority of the commanding officer. Commanding officers would be subject to constant appeals, not only to a military court but also to domestic courts or on judicial review. For that reason, as I indicated in my answer to a point raised earlier by a noble Lord, the chiefs of the armed services are extremely anxious to see this legislation enacted as quickly as possible.
I must confess that I used the terminology "operational integrity" not from the beautifully prepared briefs given to me by the department but as a

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way of trying to emphasise to your Lordships that the Armed Forces themselves are of course absolutely committed to operational effectiveness. That is what I meant by that phraseology; I was not trying to introduce an entirely new concept. It was only my own way of expressing—rather inelegantly—the issue about which we are all concerned; that is, the way in which we can ensure that individual service men and women are guaranteed their rights under the convention while at the same time ensuring operational effectiveness. That has been the concern of the Ministry of Defence and, indeed, the concern of our colleagues in the Armed Forces, as I am sure all noble Lords would expect it to be.
Lord Burnham: My Lords, I do not wish to be accused, as my noble friend Lord Moynihan was in the past, of misquoting the Minister, but she said that officers and men at all levels would do their very best to make the Bill and other legislation relating to discipline work. Of course they do; they are highly disciplined and they will do everything they can to make it work. That does not necessarily mean that they have to like it.
I should like first to speak to my Amendment No. 2, which is an amendment of principle. Article 15 of the European Convention is quite specific about the terms and I accept that, although I must admit that it is a pity that His late Majesty's Government did not implement a degree of derogation as the French did in 1951. But there it is; and we have it. This is a matter of principle. My noble friend Lord Attlee talked about things "going horribly wrong". I use a slightly different phraseology: I shall talk about getting into a very mucky conflict. That being the case, there needs to be some form of derogation in the Bill in principle for matters which corn e under the terms of Article 15 of the European Convention on Human Rights. I am by no means sold on my wording, but, in withdrawing the amendment, I hope that the noble Baroness will consider all that has been said and will conclude that there is possibly a case for introducing something along those lines at the next stage of the Bill. However, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Burlison: My Lords, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

ECHR Judgment: Thompson and Venables
Lord Burlison: My Lords, before we move to the Statement on the judgment of the European Court of Human Rights in the case of Thompson and Venables, I should like to take the opportunity to remind the House that the Companion indicates that the discussion on a Statement should be confined to brief
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comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.
1 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, with the leave of the House, I should like to repeat a Statement which has been made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"Madam Speaker, this morning the European Court of Human Rights announced its judgment in the case brought against the UK Government by Robert Thompson and Jon Venables. A copy of the judgment has been placed in the Library. These two youths were responsible for the appalling murder of James Bulger in Liverpool in February 1993. The whole House and the country has the deepest sympathy for James's parents. As Lord Reed, one of the court judges, said,
'The grief of James Bulgers' parents, who took part in the proceedings before the Court, is inexpressible. The fact that [those responsible] … were themselves only ten years old at the time of the murder makes it particularly disturbing'.
"The authority of the European Court of Human Rights derives from our membership of the Council of Europe. The Council of Europe was established after the war on the initiative of the allies, especially the United Kingdom. It now has 41 nations in membership. The Council of Europe predates the European Union, and is wholly separate from it.
"The European Convention on Human Rights is a convention of the Council of Europe, and the Court of Human Rights is one of its principal institutions. It was British jurists who played a leading role in drafting the convention. The United Kingdom was the first nation to ratify it in 1951. Successive United Kingdom governments ever since have consistently abided by the decisions of the Court, introducing amending legislation where necessary.
"In the case which Robert Thompson and Jon Venables brought before the Strasbourg Court, the two youths essentially argued that facing trial in a Crown Court and having their tariff set by the Home Secretary were inappropriate given their ages. They claimed that these arrangements breached Articles 3, 5, 6 and 14 relating to powers of detention and the right to a fair trial. They were 11 at the time of conviction and are now 17.
"The House will understand that I have had only a short time to read the judgment, but the key findings are as follows. There were no violations of the European Convention on Human Rights in respect of Article 3—the right not to be subjected to inhuman and degrading treatment or punishment—in respect of both trial and sentence. In particular, the Court held as lawful the age of 10 as the age of criminal responsibility in England and Wales. They were also of the view that the particular features of the trial process did not cause to a significant degree

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suffering going beyond that which would inevitably have been engendered by any attempt by the authorities to deal with the applicants.
"With regard to Article 5(1)—the right to liberty—the Court held that the sentence of detention at Her Majesty's pleasure was clearly lawful under English law and was not arbitrary. There had not, therefore, been any violation of Article 5(1).
"The Court did find violations in respect of Article 6(1), the right to a fair trial, and under Articles 6(1) and 5(4) relating to the setting of the tariffs and their continued review.
"In relation to Article 6(1), the right to a fair trial, the Court found that, notwithstanding the special arrangements which had been made to help ensure that the youths could properly participate in the trial process in the Crown Court, it was highly unlikely that either applicant would have felt sufficiently uninhibited, in the tense court room and under public scrutiny, to have consulted with their legal representatives during the trial or, indeed, that, given their immaturity and disturbed emotional state, they would have been capable outside the court room of co-operating with their lawyers and giving them information for the purposes of their defence. It followed that the applicants had been denied a fair hearing in breach of Article 6(1).
"With regard to the setting of tariffs and their continued review, the Court first held that there was a fundamental distinction between the sentence for murder in respect of juveniles and that for murder in respect of adults. So far as the latter is concerned—the sentence for adults—in an earlier judgment (Wynne 1994) the European Court had accepted the lawfulness of the mandatory life sentence for adults convicted of murder and the arrangements for tariff-setting by the Secretary of State. Today's judgment does not deal with the arrangements for those adults who have been or will be convicted of murder in the courts of England and Wales. However, in this case involving juveniles, the European Court followed a decision of the House of Lords Judicial Committee that the setting of tariffs for juveniles was itself a sentencing exercise. Since the Home Secretary, who set the applicants' tariffs, was clearly not independent of the Executive, there had been a breach of Article 6(1) in respect of the determination of the applicants' tariffs.
"In relation to Article 5(4), the Court held that because the applicants' tariffs had been decided upon by the Home Secretary, there had been no judicial supervision incorporated in the initial fixing of their sentences. The Court therefore found a violation of Article 5(4), based on the lack of any opportunity for them to have the lawfulness of their detention assessed by a judicial body.
"In summary, the Court has found in favour of the United Kingdom Government on two important issues. Those are that Robert Thompson and Jon Venables were never subjected to inhumane
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or degrading treatment by the Government; and that the sentences imposed by the court were not inconsistent with the requirements of the Convention.
"But it has found against the United Kingdom on issues relating to the trial process: the way in which the tariff linked to their sentence was set; and the failure subsequently to review the tariff.
"This judgment does not overturn the verdict of murder in this case, nor does it in any way exonerate the two youths for their part in this terrible crime. This judgment does not direct their release from custody. The Parole Board remains responsible for deciding release in these cases.
"As with any decision of the Court, Her Majesty's Government accept its judgment. However, in all, the judgment ran to 120 pages. It is important that we proceed as expeditiously as possible but with care. The House will understand that I need to study the detail of what the court has said, and fully to consider its implications. I shall report the outcome of my considerations to Parliament as soon as possible. It will, of course, be for Parliament to agree any change in the legislative framework for dealing with juvenile offenders in these circumstances.
"The appalling murder of James Bulger, a two year-old murdered by two 10 year-olds, profoundly shocked the country and continues to do so. But the real agony is that felt by James's parents. It is they who have endured and will continue to endure the profound grief of losing their son, a fact which nothing can ever repair".
My Lords, that concludes the Statement.
1.8 p.m.
Lord Cope of Berkeley: My Lords, first, I thank the Minister for repeating the Statement which his right honourable friend made in another place. I agree entirely with what the Home Secretary said in sympathy to the Bulger family and in horror at the crime which lies behind this. Clearly, like the Home Office, we shall all need time to study this long and complex judgment and its consequences.
In relation to the apparent breach of Article 6(1), it is difficult to see precisely what the court would have thought a fair trial to be in those circumstances in view of what is said about the immaturity and disturbed emotional state of the accused in the trial. In any case, it seems that the verdict of the court in this country has not been called into question.
Secondly, will the Minister confirm that he agrees with me that it seems difficult to see that there is quite such a fundamental difference as the European Court suggests between the sentence that someone is detained at Her Majesty's pleasure for juveniles and the life sentence subject to release on licence for adults. Much play was made of that difference which, it seems to me, is difficult to support.
Lastly, as regards the alleged breach of Article 5(4), as I understand it, the Home Secretary did not set a new tariff after the case in the Appellate Committee in

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1997 at least in part because he was waiting to see what would be said in this judgment. Yet now the judgment states that the lack of the setting of a tariff at that stage was a violation because if the Home Secretary had set a tariff then it would have been subject to judicial review and would therefore have been correct or proper in accordance with the convention in those circumstances.
That rather circular type of argument emphasises the difficulties brought about by the delay involved in very long proceedings and different jurisdictions. That can only add to the distress of the Bulger family and those on that side of the case and can only make it more difficult for the offenders to come to terms with what happened and what they did all those years ago. Such delay, which is involved because of the different jurisdictions, is causing increasing worry in relation to the working of the criminal justice system.
1.15 p.m.
Lord McNally: My Lords, is the Minister aware that the BBC Ceefax headline read:
"Bulger's killers' trial judged unfair"?
It should be made clear to the man and woman in the street that there is no question that this judgment seeks to overturn the central guilty verdict of the original trial. Therefore, the paragraph in the Statement that the judgment does not overturn the verdict of murder in this case nor in any way exonerate the two youths from their part in this terrible crime is one to make very clear, given the shorthand that our popular press is given to using.
As the Home Secretary said in another place, it was an appalling murder and the grief of James Bulger's parents must be truly inexpressible. I take up a point made by the noble Lord, Lord Cope, although I do not perhaps follow exactly his logic. I welcome the way in which the European Convention on Human Rights has worked and I am pleased that the Government, with our support, have brought it into the body of British law, which may deal with some of the delays to which the noble Lord. Lord Cope, was pointing.
Although we must undertake a thorough study of the judgment, there are already some clear pointers. The system of trial for children is a difficult one which must be thought through. Taking the politicians out of sentencing is clearly a matter of some urgency. One only has to look at the recent publicity about the politicising of the final decision to hang Ruth Ellis to realise that political judgment and justice do not necessarily go hand in hand. I believe that the court is well-founded in pointing us in that direction.
Therefore, we want a thorough review. But we want also an appropriate consideration in relation to when those two boys should be released. It will be one of the most difficult and testing judgments our system has faced. I suggest that both boys should be subjected to the most thorough psychiatric examination before there is any consideration of their release. I could not go along with what were reported to be the remarks of Sir David Ramsbotham a few weeks ago that we all do things at the age of nine that we subsequently regret. I
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go back to the true horror of this appalling murder and feel that we must be absolutely certain that those young men are fit to re-enter society. But that must be a proper judgment, free from political interference.
With that, I hope, will go a clear warning to our popular press in particular that cheque-book journalism and muddying the waters while those judgments are made is unacceptable. We should remember that one of the complaints made to the European Court was that the behaviour of the media at the time of the trial made a fair trial almost impossible.
Finally, there is need now—one hopes to God that it is taking place—for the most careful planning between probation, education, social and other services so that when those boys are released, there is the most careful supervision, providing the best possible chance for their rehabilitation. With that, I hope, goes the most serious warning to the press about their behaviour as that process gets under way.
I have every sympathy for Home Office Ministers at this time. This is the most difficult of difficult cases. It tests our system of justice; our capacity truly to rehabilitate. And it tests the responsibility of the press and the strength of the press code. I have a son who is the age that James Bulger would be now. We are all haunted by the video of a little boy being led to his death. What faces us now is how we give justice to him in death and also give some justice to the two boys, with their lives ahead of them, who deprived him of his.
1.18 p.m.
Lord Bassam of Brighton: My Lords, both noble Lords have spoken with considerable wisdom. I, too, am a parent. I, too, have a child of the age that James Bulger would be were he alive today. Like everyone else in the country, I was appalled and horrified by the crime, as I continue to be.
More than anything else, today is a day for reflection, thought and mature consideration. We, as Ministers, and in particular my right honourable friend the Home Secretary, will consider extremely carefully the 120 pages of judgment handed down to us for our consideration.
Your Lordships have asked important questions. They are precisely the questions on which we must focus. I shall try to respond to some of the points raised. The noble Lord, Lord Cope, asked what changes we intend to make to the whole process. That puts a finger on the key question. We shall have to take very careful account of what was said about the trial process. That was part of the judgment to which it is most important for us to give careful consideration. The noble Lord, Lord Cope, also asked about the difference between the process for dealing with adult and child murderers. In this matter the difference appears to be the indeterminate nature of detention at Her Majesty's pleasure as opposed to the mandatory and determinate life sentence for adult murderers. Clearly, that is a matter we must carefully consider in respect of juveniles.

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The noble Lord, Lord McNally, made a number of important and telling points; not least the way in which these matters are reported. The trial judgment is important here, but the sentence of guilt has gone unquestioned and that has to be absolutely right. There can be no question of that. We need constantly to remind people that our courts have not been seen to fail in that regard. The noble Lord made his familiar points about reporting: the scandal of chequebook journalism and the way in which that can overshadow the importance of a rehabilitative regime for those who are ultimately released following expiry of their sentence.
He made a neat point about politicians and sentencing. In a sense, particularly with juveniles, that comes close to the heart of the some of the issues we will have to unravel and consider in future. Apart from that we need carefully to consider our next moves and take on board carefully the important comments made during the course of considerations here and in another place.
The Earl of Longford: My Lords, I share the profound sympathy for the parents of a murdered boy and the horror we must all feel at the crime. Is the Minister aware that, according to the best evidence, these two boys have made excellent progress? Sir David Ramsbotham, Chief Inspector of Prisons, whose opinion is about the best we could come across, spoke of one of the two boys. I have very good evidence about the other. Is the Minister aware that they have both made excellent progress?
Lord Bassam of Brighton: My Lords, the noble Earl raises a useful consideration. It may well be the case that they have made good progress. Clearly, that is a matter that the Parole Board will have to consider. No doubt it will be taken carefully into account. However, that does not alter the fact that they were responsible for the appalling murder of a very small child. I do not think that anybody would wish to forget that fact.
Lord Kirkhill: My Lords, would I be right in assuming that the judgment emanates from a chamber of the Court? If I am right in that assumption, can the Minister tell me the names of the judges involved and the countries they represented?
Lord Bassam of Brighton: My Lords, as I am sure the noble Lord will appreciate, I am not able to reel off the names. However, they are all in the judgment which, as I have indicated, will be placed in the Library of the House.
Lord Dholakia: My Lords, as noble Lords have said, no one under-estimates the seriousness of the crime. Our sympathy must obviously go to the family. I agree with the Minister that today is a day of reflection and thoughts. However, does he not agree that such thought process should take into account that it is of paramount importance that sentences should be set by judicial process and not by politicians? Does he not
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also agree that one of the fundamental aspects of the report in which we are found to be at fault is that the process of juvenile justice was not observed in this case? The convention is absolutely clear. Could we have some indication from the Minister that the youth court aspect of justice is important and should be followed in future trials of this nature?
Finally, does the Minister not agree with the noble Earl, Lord Longford, that we should have clear criteria to determine how we treat young prisoners when they have shown significant alteration in maturity?
Lord Bassam of Brighton: My Lords, the noble Lord has done no more than reiterate points in the judgment and points I made in response. We need to be clear that the Court did not say that it is inappropriate for these matters to be considered in a Crown Court. It did not make that comment. It did, however, pass comment on the process. Obviously, that is a matter which we shall have to consider further. We must take on board the very real concerns expressed. The noble Earl, Lord Longford, raised the issue of the way in which people behave while undergoing a sentence of this nature. That will be considered by the Parole Board when it properly comes to consider how and when these two boys might be released.
Lord Ackner: My Lords, I associate myself with the expressions of sympathy to the family which have been appropriately expressed in this House. I do not wish to comment or ask questions on the trial process, which is an important subject. The finding that we have denied two young boys a fair trial means that we must consider the matter in depth.
However, I want to raise questions about the sentencing exercise. Her Majesty's Government will no doubt readily accept that cases involving discretionary life sentences—for instance a sentence imposed on someone who has killed somebody but in doing so was suffering from diminished responsibility; someone who has killed somebody but has done so by reason of provocation; and manslaughter—are often far more serious than the domestic murder case. Her Majesty's Government will no doubt recall that some years ago the Home Secretary had removed from him by process of judicial decision any part for the Home Secretary to play in the sentencing exercise in relation to the discretionary life sentence.
Her Majesty's Government will now have to accept that the sentencing exercise in relation to children who have been detained during Her Majesty's pleasure is equally a case in which a politician has no function to perform.
Finally, Her Majesty's Government will no doubt remember the observation made by the Home Affairs Select Committee about two years ago when it considered the mandatory life sentence. The committee concluded that the mandatory life sentence should stay where it is at present but that the amount of time the defendant should stay in prison was to be the subject matter of a judicial discretion and not a

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politician's discretion. The committee recommended, therefore, that the Home Secretary ceased to play any part.
In the light of what I have asked the Minister to recall, does he not accept that it is high time that the Home Secretary conceded that in any sentencing exercise he has no part to play and should not strive to act in a judicial capacity? Does he also accept that this is one of the subjects which should receive consideration by Lord Justice Auld who was recently appointed to chair a commission on a wide-ranging series of subjects connected with the criminal trial process?
Lord Bassam of Brighton: My Lords, the noble and learned Lord speaks with far greater knowledge and wisdom on these matters than I can ever expect to match. We shall obviously take careful account of his comments. Of course we shall wish to consider these matters as carefully and as quickly as we possibly can. No doubt my right honourable friend the Home Secretary will wish to consult with Lord Justice Auld, as has been suggested. But these are complex matters. They require time for reflection. The role of politicians in the setting of sentences is clearly one for debate and further consideration. That is probably the best place to leave the matter.
Lord Richard: My Lords, perhaps I can raise a practical point. I wish to associate myself with everything that has been said about the crime, about those who committed it and indeed about the parents. But what happens now to the length of time the young men spend in prison? Does the sentence go back to the eight years the trial judge thought was appropriate? Does it revert to the 10 years the Court of Appeal felt was appropriate? Or does it stay at 15 years, which the Court of Human Rights declared to be illegal?
Lord Bassam of Brighton: My Lords, that is precisely why we need to study the judgment carefully. Of course the Home Secretary will have to review the matter. That much is clear from what has been said and understood so far from the judgment.
Lord Mackay of Drumadoon: My Lords, perhaps I can raise a point on the issue of reporting this decision which was raised by the noble Lord, Lord McNally. Before coming into the Chamber this afternoon I had a look at the tapes. They report one of the solicitors for one of the defendants saying that he was "pleased" with the decision. He went on to say,
"It is a very sad case put I think the decision is correct".
The other solicitor is reported as saying,
"Obviously I am pleased that we have won".
I do not believe that such expressions will strike a chord in any part of the House. In considering the implications of this case, will the Minister be prepared to discuss with his right honourable friend the Home Secretary, and indeed with his noble and learned friend the Attorney-General who is in his place today, whether some encouragement might be given to the
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Law Society and other professional organisations which have responsibility for lawyers, to get across the message that, in representing parties in these sensitive proceedings, their job is to represent them in court and not to make statements to the media which may well be selectively quoted from and add insult to injury as far as the relatives of the deceased are concerned?
Lord Bassam of Brighton: My Lords, the noble and learned Lord makes an important point. Clearly the Government cannot direct lawyers representing their clients as to what they may or may not say. However, I fully sympathise with the point being made. Today is a day for mature reflection. Everything people say publicly about this matter should be carefully thought through. Our thoughts and sympathies should rest with the Bulger family. We, as politicians, need to go away, collect our thoughts, carefully study the judgment and then come back with practical, reasonable and pragmatic solutions for what is clearly a difficult set of issues.
Lord Harris of Greenwich: My Lords, perhaps I can ask a question arising from the question put to the Minister by his noble friend Lord Richard. Does he agree that it is important to obtain a clear statement as soon as possible as to what the length of the sentence will now be in relation to these two young men? We cannot leave this matter for months. Which sentence now applies? It may be helpful if a clear statement could be made in that regard soon after the Christmas Recess.
Lord Bassam of Brighton: My Lords, we will want to conclude this matter as quickly as we can. The noble Lord puts his finger back on the precise point raised by my noble friend Lord Richard. It is an issue to which we shall have to return as quickly as we can. It is in no one's interest that these matters are left hanging over.
Lord Monson: My Lords, I want to revert to one of the points raised by my noble friend Lord Ackner. It would appear from the Statement that the European Court of Human Rights has, in effect, made it illegal for any Home Secretary in the future to alter any life sentence tariff recommended by any trial judge whenever the person convicted is under the age of 18. But does the ruling go further than that by effectively outlawing the judicial setting of any tariff where the under-18s are concerned?
Lord Bassam of Brighton: My Lords, again I need to remind the House that we need time to study this judgment with great care. The point the noble Lord makes is important. But we need time to reflect on the issues raised in the judgment and see properly where our responsibilities lie in the future. We need to be given that time and I am sure that we will come back to the House and provide answers to the questions that have properly been raised during this short debate.
Lord Jopling: My Lords, leaving aside the details of the judgment which we understand the Minister is

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unwilling to enlarge on at this stage, does a judgment of this sort open the way for the lawyers who acted on behalf of the two young boys in this case to go for large sums of money in compensation?
Lord Bassam of Brighton: My Lords, I do not believe that to be the case. I hope it is not the case in the future. It is certainly not the case in this matter.

Armed Forces Discipline Bill [H.L.]
1.36 p.m.
Lord Burlison: My Lords, I beg to move that the House do again resolve itself into Committee on the Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Burlison.)
On Question, Motion agreed to.
House in Committee accordingly.
Lord Burnham Lord Burnham had given notice of his intention to move Amendment No. 3:
Page 1, line 11, after ("except") insert—
("(a) under active service conditions; or (b)").
The noble Lord said: Before we were so rudely interrupted the noble Baroness was discussing the question of "What is war?". I am sure she has taken the opportunity of the period in which the House has been sitting to discover this, as have I. It may be useful, for the benefit of Hansard, that I record what I discovered.
The Geneva Convention of 12th August 1949 and the First Additional Protocol apply. This, we believe will permit derogation under Article 15 of the European Convention on Human Rights. But if we wish to include non-international armed conflict, we need to add the Additional Protocols of 1977. The first Additional Protocol of 1977 applies to international armed conflict only. The second Additional Protocol applies to non-international armed conflict. Those Additional Protocols have been inserted into the Geneva Conventions Act 1957, Schedules 5 and 6, by the Geneva Conventions (Amendment) Act 1995.
Perhaps I may return to Amendments Nos. 3 to 14 and 77. I am grateful for the response of the noble Baroness in relation to Amendment No. 2 when I asked for something to be reconsidered. I feel however that she was unnecessarily rude—I mean that in the nicest sense of the word—when she said that she felt we wished to prevent members of the Armed Forces from benefiting from the European Rights Act and international law. That is by no means the case. As I said when I introduced this amendment, we were talking about the practicalities of the case. However, the noble Baroness has thought it proper not to agree with me.
I have no wish to create any conflict at this stage, but I would ask that both the noble Baroness and those responsible with her for framing this Bill should look
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again at what we have said. They must realise the difficulties involved; that is the problem. It is very easy for people to sit in Whitehall and talk about how legislation is to operate, but when you get into the field it is nothing like so easy. Indeed, that is what we have been trying to emphasise and I do so again. However, in the circumstances, I do not wish to move this amendment, Amendments Nos. 4 to 14 and Amendment No. 77.
[Amendment No. 3 not moved.]
[Amendment Nos. 4 to 14 not moved.]
Clauses 1 to 3 agreed to.
Clause 4 [Custody during court-martial proceedings]:
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendment No. 15:
Page 22, line 16, leave out from ("Act") to first ("section") in line 18 and insert ("at any time after the commencement of his trial by court-martial,").
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 16 to 38. The amendments are necessary to overcome potential practical difficulties, which have been identified in the procedure of carrying out custody reviews. These may occur between the appointment of the judge advocate and the commencement of the trial, or in the period between finding and sentence if there is an adjournment. The main effect is to allow any judicial officer to conduct custody reviews up until the date of the trial and during an adjournment.
In the first instance, the appointment to the court of a trial judge advocate may be some time before the trial commences. In the interim, he or she may not be available, perhaps because of officiating at a trial elsewhere. To avoid the practical difficulties that this might create, the amendment ensures that custody reviews may be heard by any judicial officer until the trial actually begins, at which point the judge advocate will take over this role. For example, during an adjournment between finding and sentence, the members of a court may disperse some considerable distance so similar difficulties might arise in that case. Therefore, we believe that it would be more convenient for a judicial officer to have jurisdiction rather than convening the whole court every eight days to review custody.
These are straightforward and practical amendments. The sole basis for them is to ensure that as much flexibility as possible is available to the services in the day-to-day administration of the new system of custody. In addition, to allude to the discussion that Members of the Committee had earlier on Amendment No. 1, I should also like to point out that identical amendments are required to be tabled for each of the three service Acts and that may, possibly, make the changes appear somewhat more numerous than is really the case. Quite a number of amendments have been tabled in my name, all addressing the same issues. However, they are multiplied by a factor of two or, in some cases, a factor of three because of the various discipline Acts with

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which we have to deal. That applies to the amendments relating to all the clauses and not just those relating to Clause 1. I beg to move.
On Question, amendment agreed to.
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendment Nos. 16 to 32:
Page 22, line 21, leave out from beginning to ("in") in line 22.
Page 22, line 24, after ("accused,") insert ("references to a judicial officer").
Page 22, leave out lines 26 and 27.
Page 22, line 32. leave out ("court-martial") and insert ("judicial officer").
Page 22, leave out lines 44 and 45.
Page 23, line 4, leave out from ("Act") to first ("section") in line 6 and insert ("at any time after the commencement of his trial by court-martial,").
Page 23, line 9, leave out from beginning to ("in") in line 10.
Page 23, line 12, after ("accused,") insert ("references to a judicial officer").
Page 23, leave out lines 14 and 15.
Page 23, line 20, leave out ("court-martial") and insert ("judicial officer").
Page 23, leave out lines 32 and 33.
Page 23, line 37, leave out from ("Act") to first ("section") in line 39 and insert ("at any time after the commencement of his trial by court-martial,").
Page 23, line 42, leave out from beginning to ("in") in line 43.
Page 23, line 45, after ("accused,") insert ("references to a judicial officer").
Page 24, leave out lines 1 and 2.
Page 24, line 7, leave out ("court-martial") and insert ("judicial officer").
Page 24, leave out lines 19 and 20.
On Question, amendments agreed to.
Clause 4, as amended, agreed to.
Clause 5 [Release from custody after charge or during proceedings]:
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendments Nos. 33 to 38:
Page 24, line 25, leave out (", judge advocate or court-martial") and insert ("or judge advocate").
Page 24, line 35, leave out (", judge advocate or court-martial") and insert ("or judge advocate").
Page 25, line 4, leave out (", judge advocate or court-martial") and insert ("or judge advocate").
Page 25, line 14, leave out ("judge advocate or court-martial") and insert ("or judge advocate").
Page 25, line 29, leave out (", judge advocate or court-martial") and insert ("or judge advocate").
Page 25, line 39, leave out (", judge advocate or court-martial") and insert ("or judge advocate").
On Question, amendments agreed to.
Clause 5, as amended, agreed to.
Clause 6 [Arrest during proceedings]:
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendment No. 39:
Page 26, line 10, after ("with") insert (", or is awaiting sentence for,").
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 40 through to 65. Again, I should like to emphasise that the basis for these amendments is to ensure that as much flexibility as possible is available to the armed services in the day-to-day administration of the provisions contained in the Bill. Indeed, that applies in exactly the same way as applied to the group of amendments that I have just moved and reflects the same argument.
I should also like to remind Members of the Committee that, once again, the number of amendments results from the need to table identical amendments across all three service discipline Acts. As with Clause 4, these amendments devolve responsibility or jurisdiction for certain actions to others to cater for instances where there might be difficulty in contacting an individual at short notice. Therefore, the first change made to Clause 6 is designed to overcome the practical difficulties of directing the arrest of the accused that might exist after finding and at any time when he is awaiting sentence.
As drafted, after finding but before sentence, the courts martial may direct the commanding officer of the accused to give orders for the accused's arrest. However, if the court adjourns for any reason, it may disperse temporarily. Therefore, to avoid the obvious difficulties of recalling all three—or more—members solely to direct arrest if it seems necessary, the amendment vests the power of arrest with the commanding officer for these purposes. I believe that that meets the sort of flexibility that I know is very dear to the heart of the noble Lord, Lord Burnham.
The second change arises from a potential difficulty which may arise if the judge advocate decides to direct the commanding officer to order the accused's arrest. In practice, it is unlikely that the accused's commanding officer would be present at the trial. It may be very difficult to contact him at that particular moment, especially if he is based overseas. Therefore, the amendments widen the provision to give the power of arrest to those who are already empowered under these Acts to arrest someone for committing an offence. This definition includes the commanding officer. The amendment does not allow the power to be exercised other than at the direction of a judge advocate.
Finally, the amendments have been made to ensure that any direction for the arrest of the accused will remain valid, even though the court has subsequently had to be dissolved for whatever reason. The amendments also clarify that the first custody review held after the arrest of the accused shall be dealt with by the judge advocate who gave the original direction. Any subsequent reviews that are necessary may be heard by any judicial officer. I beg to move.
On Question, amendment agreed to.
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendments Nos. 40 to 65:
Page 26, leave out lines 15 to 20 and insert—
("(2) Subject to subsection (3A) below, subsection (3) below applies between the commencement of the trial of the accused by court-martial and the announcement of the court-martial's finding on the charge or every charge against the accused.").
Page 26, leave out lines 22 to 24 and insert (", the judge advocate,").
Page 26, line 26, leave out from ("direct") to end of line 27 and insert ("the arrest of the accused; and any person with power to arrest the accused for an offence against a provision of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this subsection.").
Page 26, line 27, at end insert—
("(3A) Subsection (3) above shall cease to apply (but without prejudice to any direction already given by virtue of that subsection) if the court-martial is dissolved.").
Page 27, line 12, leave out ("or court-martial").
Page 27, line 13, leave out ("ordered") and insert ("made").
Page 27, line 13, leave out from ("before") to ("and") in line 14 and insert ("him),").
Page 27, line 15, after ("with") insert ("by him").
Page 27, line 21, after ("with") insert (", or is awaiting sentence for,").
Page 27, leave out lines 26 to 31 and insert—
("(2) Subject to subsection (3A) below, subsection (3) below applies between the commencement of the trial of the accused by court-martial and the announcement of the court-martial's finding on the charge or every charge against the accused.").
Page 27, leave out lines 33 to 35 and insert (", the judge advocate,").
Page 27, line 37, leave out from ("direct") to end of line 38 and insert ("the arrest of the accused; and any person with power to arrest the accused for an offence against a provision of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this subsection.").
Page 27, line 38, at end insert—
("(3A) Subsection (3) above shall cease to apply (but without prejudice to any direction already given by virtue of that subsection) if the court-martial is dissolved.").
Page 28, line 21, leave out ("or court-martial").
Page 28, line 22, leave out ("ordered") and insert ("made").
Page 28, line 22, leave out from ("before") to ("and") in line 23 and insert ("him),").
Page 28, line 24, after ("with") insert ("by him").
Page 28. line 30, after ("with") insert (", or is awaiting sentence for,").
Page 28, leave out lines 35 to 40 and insert—
("(2) Subject to subsection (3A) below, subsection (3) below applies between the commencement of the trial of the accused by court-martial and the announcement of the court-martial's finding on the charge or every charge against the accused.").
Page 28, leave out lines 42 to 44 and insert (", the judge advocate,").
Page 28, line 46, leave out from ("direct") to end of line 47 and insert ("the arrest of the accused; and any person with power to arrest the accused for an offence under Part I of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this subsection.").
Page 28, line 47, at end insert—
("(3A) Subsection (3) above shall cease to apply (but without prejudice to any direction already given by virtue of that subsection) if the court-martial is dissolved.").
Page 29, line 29, leave out ("or court-martial").
Page 29, line 30, leave out ("ordered") and insert ("made").
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Page 29, line 30, leave out from ("before") to ("and") in line 31 and insert ("him),").
Page 29, line 32, after ("with") insert ("by him").
On Question, amendments agreed to.
Clause 6, as amended, agreed to.
Clause 7 [Judicial officers]:
Lord Burnham moved Amendment Lord Burnham moved Amendment No. 66:
Page 29, line 36, leave out ("Judge Advocate General") and insert ("Lord Chancellor").
The noble Lord said: This is, in part at least, not so much a probing amendment as a teasing amendment. However, it has a specific and definite purpose which is not part of the teasing. The amendment provides that judicial officers shall be appointed by the Lord Chancellor and not by judge advocates. Judge advocates are appointed by the Lord Chancellor. We believe that the Government will agree that it would be more compliant with the convention that judicial officers should be appointed in the same way. I hope that the Minister will be able to accept the amendment in that context.
We have to think about the independence of judge advocates. At Second Reading I believe I said that in several cases which have come before the European Court it has been thought that commanding officers are not independent and that therefore the Bill should propose someone who is independent. However, I raised the point that naval advocates are uniformed officers. I cannot see how any normally bone-headed jack tar will notice the difference between his commanding officer, who may be a lieutenant commander, commander or captain, and a judge advocate who is wearing the same uniform and may have roughly the same insignia round his sleeve. It has been made clear that judge advocates are not members of the Armed Forces. However, I believe that we have a serious problem here which I ask the noble Baroness to consider.
My amendment proposes that these appointments should be made by the Lord Chancellor. It is not uncommon for the Lord Chancellor to make judicial appointments and when he does so quite often the salary and fees come out of the relevant departmental budget, especially in relation to tribunal chairmen. I ask the noble Baroness to consider that there is the appearance of a lack of independence. However, I turn to the teasing part of my amendment—although I mean it quite seriously—of which I have given the Minister notice. At Second Reading a number of noble Lords expressed grave concern that the whole of this Bill would constitute a considerable disadvantage to the defence budget. I believe that the noble Baroness mentioned a figure of about £6 million; we have mentioned a figure of about £9 million. However, the exact sum does not matter.
I totally agree that it is important that members of the Armed Forces should recognise that they are being fairly treated by the law. Nevertheless, this legislation is to be imposed upon us. As I pointed out in my earlier Starred Question to the noble Baroness, it seems to us that the Armed Forces are in serious financial problems and therefore it seems wrong that the

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European convention and Home Office legislation should force additional costs upon the Ministry of Defence budget. I ask the noble Baroness to consider those points. I beg to move.
Lord Campbell of Alloway: I am a trifle worried about this amendment. I have to be frank. I should have thought that the Judge Advocate General would be more appropriate to sift out the qualifications in paragraph (b). I therefore cannot quite understand why he should not be suitable to do that. I have listened with attention to everything that has been said, but I cannot quite understand why the Lord Chancellor should be preferred. That surely cannot have anything much to do with the naval discipline Act.
Lord Bramall: I ask the noble Lord, Lord Burnham, whether the purpose of this amendment is somehow to shift the burden of finance onto the Lord Chancellor. I have much sympathy with that. The noble Lord said that the defence budget was under considerable strain. As I said, I have great sympathy if that is the noble Lord's intention. At Second Reading the noble Baroness, Lady Symons, said that,
"the costs will fall to the MoD. However, they will be absorbed across a wide range of budgetary areas, each of which will manage their costs in terms of their overall priorities".—[Official Report, 29/11/99; col. 698.]
She is presumably saying that as these costs emanating from the Bill and the Convention on Human Rights will be obligatory, other things will have to suffer. This seems to be more than sad; indeed I should have thought it was irresponsible. I should like the noble Lord, Lord Burnham, to comment on the purpose of the amendment.
Lord Burnham: My Lords, I thank the noble and gallant Lord for his question. It is indeed my primary object not to withdraw this sum of money from the Ministry of Defence budget. At Second Reading I made it clear that I am not entirely happy about the perceived independence of judicial officers and judge advocates. Her Majesty's Government have suffered from the case of Hood v; UK—I am not so certain about Finlay v UK—in which commanding officers were not considered to be independent. A judge advocate is a different being, but bearing in mind that a naval judge advocate sits in uniform I am not happy that his full independence will be universally recognised. However, as the noble and gallant Lord said, my first object is to reduce costs to the Ministry of Defence budget.
Lord Renton: My Lords, although I have immense respect for my noble friend Lord Burnham and all that he is doing on this Bill, like my noble friend Lord Campbell of Alloway I am sorry to say that I cannot support the amendment. The difficulty I see is that the Lord Chancellor already has an enormous range of duties. His duties do not extend to having knowledge and experience within the Armed Forces. Often previous Lord Chancellors had served in the forces. Indeed, Lord Chancellors served in each of the two
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world wars. The judge advocate knows the needs of the relevant service and therefore I believe that he should be appointed. On the other question which has only just been mentioned—I do not think that there is an amendment which affects it—I take the view that the judge advocate should be seen as a service person, although a lawyer—which many lawyers are, or have been—and that he should wear uniform in court. However, my main point is that I think that it is right for the judge advocate to appoint the legal people.
Lord Mackay of Drumadoon: I wish to make a short contribution on one of the issues touched on by my noble friend Lord Burnham; namely, the question of the independence of the judicial officer. I seek from the Minister either today, or later in writing, some indication of the terms of appointment and the security of tenure which such officers would have.
I raise similar questions about judge advocates themselves. I do so in view of a case that I have already mentioned in your Lordships' House—that of Starrs v. the Procurator Fiscal at Linlithgow—where the High Court of the Judiciary held that temporary sheriffs in Scotland—who, until recently, sat in terms of one-year appointments, which were renewable at the discretion of the executive—were deemed not to constitute an independent and impartial tribunal for the purposes of Article 6(1) of the convention.
I understand that it has not yet been decided whether that case is to be appealed to the Judicial Committee of the Privy Council. In the event that it was not successfully appealed, it might give rise to questions as to whether judge advocates and judicial officers who hold short-term appointments at the discretion of the Judge Advocate General were sufficiently compliant with Article 6(1) to avoid challenge in courts martial which may take place.
Is the Minister prepared to look at this issue also and to report to those of your Lordships who are taking part in the Bill prior to Report stage?
Baroness Symons of Vernham Dean: The noble Lord, Lord Burnham, told us that this was a probing amendment. I think the term he used was a "teasing" amendment. On the face of it, it is true that these are two rather innocent amendments concerning the responsibility for the appointment of judicial officers who will determine the need for custody prior to trial. In that regard, we would prefer to leave the Bill as drafted.
The Judge Advocate General and the Chief Naval Judge Advocate are responsible for appointing judge advocates to courts martial and, under the proposals of the Bill, to the summary appeal court. There seems little reason in logic for them not also appointing judicial officers to deal with the rather less formal custody hearings.
Incidentally, it is worth reminding ourselves that the Judge Advocate General's office is already staffed and generally funded by the Lord Chancellor's Department. I am grateful to the noble Lord, Lord Burnham, for kindly indicating to me some days ago

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that the amendments had a wider purpose. I suspect that this is where the tease comes in. The wider purpose concerns where the costs arising from the implementation of the changes in the Bill will fall.
I recall—the noble Lord reminded us—that this was an issue at Second Reading. We have to remember that most of the costs arising from the Bill, to which the noble and gallant Lord, Lord Bramall, referred, are associated not with the Judge Advocate General's office but with the need for additional staff in the Ministry of Defence. The major bulk of the costs does not fall in this part of the Bill but elsewhere. Therefore, while teasing us on this point, the noble Lord has not dealt with where the major costs of the Bill fall.
In responding to the kind help offered by the noble Lord, Lord Burnham, Ministers in the Ministry of Defence are always extremely grateful for any assistance, from whatever quarter it arises, in identifying others who might be willing to bear the costs of our activities. Any thoughts on that point will, of course, be studied with great verve on our part.
To a certain extent, the amendments imply that the Ministry of Defence does not, or perhaps should not, fully prescribe to the changes arising from the Human Rights Act. The noble Lord said that these changes were being "imposed upon us". Your Lordships should be in no doubt that that is not the case at all. The Act fulfilled the Government's collective commitment in relation to the European Convention on Human Rights. In that connection, the Ministry of Defence intends to be part of bringing the convention rights fully into the life of this country. The Ministry of Defence intends to deliver those rights to members of the Armed Forces, who have a right to enjoy them in the same way as other citizens of this country. We shall not deny them the legitimate rights that we are prepared to extend to every other section of the population.
This is an extremely important point. I have a feeling that there is an undercurrent and, given the language used by the noble Lord—"imposed"—the implication is that somehow the Ministry of Defence or the Armed Forces wish to stand aside from this. That is not the case. We are not apologetic about this. We see little mileage in seeking to deflect the costs of the changes in the Bill as if those changes were somehow an alien imposition on the Ministry of Defence.
The services have their own discipline system; we respect it. The services also accept that the costs associated with that discipline system are an integral part of service life; that part and parcel of the acceptance of these changes is accepting the costs that go with them; and it follows that accepting the costs means accepting the modifications to the system.
While I accept the perhaps somewhat light-hearted way in which the noble Lord raised these issues, there is another undercurrent here that we must address. This is not being "imposed"; it is a part not only of what Her Majesty's Government have taken right the way across government, but a part of the acceptance
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and the implementation of the Human Rights Act, in which the Ministry of Defence wants to play a full and active role.
Lord Burnham: With the greatest respect to the noble Baroness—and this time I do mean it—I do not accept that, had it not been for the Human Rights Act, the Armed Forces would have recommended for inclusion in a Bill all the terms in the Bill that we have before us today. Certainly on these Benches we fully recognise the need to see justice done to all ranks, but, had it not been for the Act, I doubt that this is the way we would have done it.
My purpose in tabling the amendment was twofold. I am not sure whether the noble Baroness fully noted the fact, but for the costs I relied on paragraphs 61 and 62 of the Explanatory Notes to the Bill. The notes on a great deal of the Bill are extremely helpful, but those two paragraphs do not make absolutely clear what costs arise as a result of the provisions. I do not feel that we should totally withdraw from any attempt to prevent such costs falling on the Ministry of Defence, which is already in a bad way.
As regards the specific part of the amendment, which suggests that judge advocates should be appointed by the Lord Chancellor, I shall withdraw that element of the amendment with considerable content in the light of what the noble Baroness said. However, in regard to the matter of costs, I hope that all parties will consider the situation further before we reach the next stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Renton Lord Renton moved Amendment No. 67:
Page 29, line 42, leave out ("five") and insert ("ten").
The noble Lord said: This is a probing amendment which seeks to ensure that people appointed as judicial officers—however those appointments are made—shall have rather more experience than five years' membership of the Bar or as a solicitor. I speak from personal knowledge. My daughter passed her Bar exams before she was 21, was called to the Bar just after she was 21, and then did a year's pupillage. It was not until she had been in practice for several years that she truly got up to speed. By the age of 26, which is the age envisaged in the Bill, she had not had much experience, although later she gained a great deal.
We must bear in mind that, in the main, judicial officers will be judge advocates, advising the courts on the law and using their own experience within the law in order to be effective. I believe that 10 years' experience is a more appropriate requirement than five years. It is clear from the Explanatory Notes on the Bill that the judicial officers are mostly to be judge advocates, although some of them will act in other capacities. However, we are not told quite in what capacities they will act. I feel strongly that five years' qualification as a lawyer is not long enough, even for

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those who are only called later. I was not called to the Bar until I was 24. It is better to be safe in this matter. I beg to move.
Baroness Symons of Vernham Dean: As the noble Lord, Lord Renton, has explained, this amendment seeks to adjust the minimum qualifications required for judicial officers who are to be appointed to deal with the custody hearings to be established under the Bill. The aim of the clause is to ensure that those appointed have an appropriate level of experience. As the noble Lord pointed out, that is very important. However, we have drafted the clause in such a way as to allow a measure of flexibility to appoint suitably qualified Commonwealth lawyers who could be used, if necessary, in some of the remote locations that we have discussed in the context of the provisions of the Bill. In all cases, we are proposing a period of five years' qualified experience, and it is important to point out to noble Lords that this is the qualifying period required to be appointed as a judge advocate.
The fact is that a 10-year qualifying period would reduce the pool of lawyers from whom judicial officers could be appointed. That, in turn, would reduce our flexibility—the very flexibility that all noble Lords have agreed is so vitally important for the implementation of the measures in the Bill. If passed, the amendment would serve to make the implementation of the provisions of the Bill a great deal more restrictive and make the new procedures more difficult to operate.
While I understand the noble Lord's concern that there should be proper experience—there must be proper experience for the judge advocate—it seems sensible that the minimum qualifying periods are one and the same and that we maintain the flexibility of the provision as drafted.
2.15 p.m.
Lord Craig of Radley: Before the noble Baroness leaves this point, perhaps I may ask for clarification. Does the judicial officer appointed under this provision have to be a British national? Can he be a citizen of the European Union or indeed of the United States? I am not clear whether the intention is to restrict the provision in that way.
Lord Renton: Before the noble Baroness answers the noble and gallant Lord's question—my intervention may help her to obtain a fuller answer—will she be so good as to consider whether "barrister or solicitor" in this context means a barrister or solicitor qualified within the United Kingdom or one who has qualified anywhere else in the world? We have to bear in mind that in many countries the profession is not divided into two. Those concerned are just called lawyers. The word "lawyer" has not been used in this provision. Therefore, the interpretation will be strict and the term "barrister or solicitor" will have to be applied.
Baroness Symons of Vernham Dean: The eagle eye of the noble Lord, Lord Renton, spotted my anxious look over to the officials' box. I can tell the Committee
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that Commonwealth lawyers are also qualified in this sense. They might be appointed. On the question of EU lawyers, I shall have to take further advice. I hope to be able to write to the noble and gallant Lord, Lord Craig, to answer his point. Similarly, although the noble Lord, Lord Renton, was extremely kind in allowing me the extra time to look anxiously over my shoulder, he was perhaps a little unkind in giving me yet another question that I cannot answer at this stage. I hope the noble Lord will be kind enough to accept a letter on the point that he raised. I shall ensure that copies of those letters go to the Front Benches and to others interested in these issues.
Lord Burnham: Unfortunately, my noble and learned friend Lord Mackay of Drumadoon is no longer in the Chamber. I am sure that he would wish to ask the noble Baroness to add "Scottish lawyers".
Baroness Symons of Vernham Dean: The noble Lord is kind to raise that point. It gives me the opportunity to put right an earlier omission. I wished to assure the noble and learned Lord, Lord Mackay—I do it now through the noble Lord, Lord Burnham—that I would write to him on the points that he raised about the terms of appointment and security of tenure of the judge advocates.
Lord Renton: I thank the noble Baroness for her attempted justification of five years. I am still not persuaded that that is long enough. I said that it was a probing amendment. However, I believe that it is a matter deserving of further consideration. I may come back to it at the Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 68 not moved.]
Clause 7 agreed to.
Clause 8 [Custody rules]:
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendments Nos. 69 and 70:
Page 30, leave out lines 32 to 36 and insert—
("(h) the use for the purposes of the proceedings of live television links or similar arrangements, including the use of such a link or other arrangement as a means of satisfying the requirement of section 75C(2)(b), 75F(1) or 75K(6)(b) or (7)(b) of this Act for a person to be brought before a judicial officer or judge advocate;").
Page 31, leave out lines 15 to 19 and insert—
("(h) the use for the purposes of the proceedings of live television links or similar arrangements, including the use of such a link or other arrangement as a means of satisfying the requirement of section 47D(2)(b), 47G(1) or 47L(6)(b) or (7)(b) of this Act for a person to be brought before a judicial officer or judge advocate;").
The noble Baroness said: These amendments are straightforward. They are designed to ensure that the practicalities of the system are as simple and as flexible as possible. The amendments clarify two points. First, the rules allowing the use of live television links need

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not confine that use only to those occasions where an accused must be brought before a judicial officer but may be used for all custody hearings. The second point we wish to clarify is that the arrangements may include live television links and visual transmissions via other media such as the Internet.
At Second Reading I noticed that some noble Lords were sceptical about the practicalities of judicial officers traipsing through the jungle—perhaps the jungle of East Timor or elsewhere—and our assertion that video technology would solve the difficulties.
I hope to offer the Committee some reassurance on that point. I shall refer to the Army in particular, since it is likely to have the greatest number of personnel in remote locations. The Army would seek to use video link technology where operational or training circumstances mean that a face-to-face hearing is not possible within the required time-frame.
It is important to remember that time moves on. The services are fully capable of exploiting successive advances in technology, which they already deploy with great success. Video technology is in day-to-day use. It was in constant use throughout the recent crisis in Kosovo. The armed services see no reason why that technology should not be deployed equally successfully in other operational environments and for purposes such as those envisaged in the Bill.
It must be remembered how much this kind of equipment has changed, even in the past few years. It is highly portable, it is available, and satellite technology should enable its use even in very remote places where standard telephone lines are unavailable. So I hope that we can reassure your Lordships that this is not merely a question of the vague response, "Let us use video because that is the best thing we can say in the context of the Bill". The matter has been very carefully examined by the Ministry of Defence. A great deal of work has been done on it. The available technology is portable, people know how to use it, and it should be able to be deployed—as it was very heavily in Kosovo for other purposes—in situations where it will make life easier for our Armed Forces. I beg to move.
Lord Craig of Radley: For the purpose of clarifying "similar arrangements", can I take it that "live" is the all-important element—that is, it is not so much a question of the technology used, but of the exchange being "live"? Perhaps the Minister will confirm that.
I would add, perhaps slightly cynically, that under these provisions a commanding officer can apparently contact a judicial authority by means of a live video link or other arrangement, but the judicial authority will apparently not be able to contact the CO, which I understood to be the purpose of the Minister's earlier amendment to Clause 6.
Baroness Symons of Vernham Dean: I assure the noble and gallant Lord that the transmissions would be live. The point is that they should be. There should be a proper interchange, and individuals should be allowed to say their piece to the judicial authorities.
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On the noble and gallant Lord's second point, the ways in which the transmissions would work are presently being examined. I am not certain about the practicalities of a judge contacting a CO. When the incident occurs, in the first instance it will obviously be a matter of the CO contacting people outside in order to obtain the help that he needs. Others may not know that such help is required. But the return, as it were, of the judicial officer to the CO would, I imagine, be by arrangement. There would naturally have to be proper arrangements in place for those exchanges. They would have to be within certain time limits. If I can give the noble and gallant Lord, Lord Craig, any help on the issues, I shall write to him. However, I hope that I have reassured him on the major point he raised about live exchanges.
Lord Swinfen: Perhaps I may press the noble Baroness a little further. What is the availability of live televisual links at the moment? Are not most of the links just by e-mail, with the messages being typed out and read at either end?
Baroness Symons of Vernham Dean: Yes, of course, most of the links are by e-mail at the moment. But we would ensure that video capability was available to all those who might at some point need it, particularly the Army, because it is more likely to be the Army who are in remote places. However, during the recent engagement in Kosovo the video links were a day-to-day occurrence. The equipment needed is highly portable and extremely easy to use. I do not believe that the noble Lord needs to worry about the availability of such equipment. We would ensure that commanding officers have it in the event that they might need it.
I am told that the equipment is in standard use in all theatres of operation. Perhaps that will reassure the noble Lord a little more.
Earl Attlee: I am grateful to the noble Baroness for her explanation. However, before speaking further at this stage of the Bill, I should remind the Committee that I am a serving TA officer and I have powers of summary jurisdiction which I exercise on behalf of my commanding officer. I may also, from time to time, have to serve as a member of the courts martial.
I have no problem with the Minister's amendment. She gave us some comfort over how the technology could be used for peace-keeping operations. But has she considered how the technology will work for intensive warfare? Has she considered the enemy's electronic warfare effort? Has she considered that, in an operational theatre, it may be operationally necessary to impose what is called "electronic silence"? Has she considered the development of anti-radiation missiles which would home in on any radio transmitter? There is a little comfort from the use of

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satellites because an anti-radiation missile could possibly result in the premature end of custody reviews by the TV link.
Finally, the Minister mentioned e-mails. I find it interesting that when I wanted to contact her office earlier this week by e-mail I was told that I could not do so because the MoD had a policy of not using e-mails for security reasons. I understand the need for that and I believe the MoD has never been hacked via computers. That indicates some of the problems we have with the modern technology.
Baroness Symons of Vernham Dean: On the last point, I believe that the noble Earl will find the same difficulty with communicating through e-mail to some ministerial offices or offices that need a high degree of security. I am sure he will readily acknowledge that the need for proper security for highly classified information in the Ministry of Defence must be our primary concern. But e-mails are used.
I remember referring, during our discussions on the Queen's Speech, to the electronic "blueys" which are the e-mail version of the "blueys", a well-known means of communication with which I am sure the noble Earl is considerably more familiar than I.
The noble Earl asked whether we have thought about the difficulties and constraints imposed on the video linkage during times of real operational conflict. Yes, we have. The use of video linkage in operational circumstances is nowadays an everyday occurrence. I can assure the noble Earl that operational staff in East Timor communicate with the UK by video link on a daily basis now. Video tele-conferencing is also used in Kosovo and was used regularly in Bosnia. All those were conflicts where there was not just a peace-keeping in the sense of people patrolling up and down the streets, but people having a job to do which involved the possibility of real conflict. Video linkages were in use there.
It is important to reiterate that the equipment is now standard issue in all major theatres of operation. When the Army is in theatre the equipment will be available. The equipment is no bigger than a briefcase and works on any commercial digital telephone line or by means of INMARSAT. INMARSAT gives approximately 90 per cent coverage of the globe. It was pointed out curing Second Reading when we dealt with communications that it was possible to fly home from nearly anywhere in the world in 24 hours or less. That must remain part of the communications menu on which we can draw.
In addition, while video-conferencing was fairly common—but not that common—eight or nine years ago when I was actively involved in the Civil Service, in the past three years it has become very much a day-to-day experience not only for civil servants but also for members of our Armed Forces.
On Question, amendment agreed to.
2.30 p.m.
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendment No. 70:
Page 31, leave out lines 15 to 19 and insert—
("(h) the use for the purposes of the proceedings of live television links or similar arrangements, including the use of such a link or other arrangement as a means of satisfying the requirement of section 47D(2)(b), 47G(1) or 47L(6)(b) or (7)(h) of this Act for a person to be brought before a judicial officer or judge advocate;").
On Question, amendment agreed to.
Clause 8, as amended, agreed to.
Clause 9 [Bail in proceedings for illegal absence]:
Earl Attlee Earl Attlee moved Amendment No. 71:
Page 31, line 30, after ("time-) insert ('', and on such terms,").
The noble Earl said: In moving Amendment No. 71 it may be convenient to speak also to Amendments Nos. 72 to 76 inclusive. These amendments deal with the introduction of bail for a soldier who is illegally absent from duty. During Second Reading, at col. 695 of the Official Report, I said that the House could easily imagine circumstances in which this new right could be deeply damaging to the morale of a unit preparing for operations. I believe it would be helpful to the Committee if I illustrated how that could occur. The Committee needs to understand that a fair proportion of soldiers who are illegally absent have fallen in love with an apparently desirable partner and chosen to ignore their commitments and responsibilities to the Armed Forces, their comrades, the country and Her Majesty.
Consider the hypothetical case of two medical technicians whose duty it is to keep emergency operating theatre equipment in perfect working order. It is obviously a highly specialised activity and there may be only two qualified soldiers in the unit, and perhaps six in the whole of the Army. Suppose that a fictitious Private Good fellow was on operations nine months ago. His wife is now pregnant and her delivery which is expected soon is likely to be a difficult one. Private Good fellow is due to fly out on operations the next day because one of the other medical technicians already in theatre has been taken ill. It is therefore operationally essential that he is deployed immediately.
Suppose, further, that nine months ago when Private Good fellow was last on operations Private Badjob was sick with a bad back but well enough to fall in love with the lady of his dreams. He has now crashed his car while taking his new girlfriend to hospital for the delivery of his child. The police discover that he is illegally absent from the Army and he is taken before the magistrate. Presumably, the magistrate will apply the same tests as under the Bail Act, which I believe is the intention of the Minister. If Private Badjob can show that he is genuinely in love with his new girlfriend, and that he has a stable relationship with her, he could easily demonstrate to the Bench that he is unlikely to abscond while his

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girlfriend is in labour. If the service authorities cannot arrange to take him into service custody immediately, the magistrate is likely to have to grant him bail.
We would then have the manifestly unfair situation where Private Good fellow has to leave his wife on her own to face a difficult delivery because Private Badjob is illegally absent, possibly a deserter. On the other hand, Private Badjob can attend his girlfriend's delivery.
During discussion on a previous amendment, when talking about the system of discipline, the Minister said that it had to be acceptable to all those under command. The Committee may like to reflect on how the hypothetical Private Goodfellow will feel about his situation. Can the Minister say whether I have interpreted the Bill correctly? Is my hypothetical situation possible? If it is not, in what circumstances does the Minister believe that it would be necessary or desirable for the magistrate to grant bail?
In this context it is worth remembering that the civil authorities are not notified of illegal absences for two to three weeks after they have been detected by the military authorities. So when a soldier appears before a magistrate, he is already in deep trouble. If a soldier has been absent for, let us say, two months he is probably looking at a period of detention; but all periods of detention are netted off from the eventual sentence.
Cases of absence without leave are easy to prove using documentary evidence. Mistakes, therefore, are unlikely to occur. By "mistakes" I mean that a soldier is unlikely to be detained and not then acquitted during proceedings. Desertion, a more serious charge, is a little more difficult to prove. My amendment may not be perfectly drafted. However, it gives the Minister an opportunity to respond to my concerns. I beg to move.
Baroness Symons of Vernham Dean: As the noble Earl says, this clause deals with deserters and absentees who are taken by the civilian police before civilian magistrates. It provides that a magistrate may remand the individual,
"for such time as appears reasonably necessary for the purpose of arranging for him to be delivered into military [air force or naval] custody".
Remand may implicitly be into custody or bail. The power to remand a person on bail is contained in Section 128 of the Magistrates' Courts Act 1980 and bail is defined as having the same meaning as in the Bail Act 1976.
The intention of the first amendment is to provide for conditions to be imposed on an individual if he is remanded on bail. As a civilian magistrate may impose bail conditions under the Bail Act 1976 which would apply in the circumstances, we do not think that the amendment is needed. Moreover, we believe that the effect is to narrow the purpose for which bail conditions may be imposed. The noble Earl's amendment might be positively unhelpful.
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The aim of the second amendment appears to be to place a greater responsibility on the magistrate to ensure that the accused is delivered into service custody. We believe that the wording we already have is more appropriate than that put forward by the noble Earl.
The purpose of the noble Earl's amendment is to provide that the magistrate ensures that those individuals absent without leave who find themselves before him do not disappear again into the ether. That is a sentiment with which the MoD, and the Armed Services in particular, naturally agrees, but we believe that the clauses as drafted allow the magistrate to impose whatever bail conditions he deems necessary in order to ensure that the accused can be safely delivered into service custody.
We do not believe that the amendments provide for anything more than what is already in the Bill. I understand that the noble Earl has tabled the amendment entirely benignly. However, we believe that the wording of the Bill is more effective than that which he proposes. On that basis, I invite him to withdraw his amendment.
Lord Burnham: The Minister says that the wording of the Bill is better than that proposed by my noble friend in Amendment No. 72. However, does she not agree that it is desirable to place an additional duty on a lay magistrate by providing that he must "ensure" that someone is delivered into military custody rather than merely "arrange" for that to be done? I have acted as an escort in such cases and I should have been happier to know that the magistrate had ensured that the man was turned over to me.
Baroness Symons of Vernham Dean: We can argue about the precise impact of "arranging" or "ensuring" that an individual is handed over. It seems to me that there is not a hair's breadth between us. If one is "arranging" to do something one is putting into place the necessary arrangements, thereby ensuring that they exist. To me, the word "ensuring" implies that one is "arranging". I honestly believe that the noble Lord is trying to see a distinction where none exists.
Lord Burnham: I do not believe so. "Ensuring" means that the magistrate is responsible, but "arranging" means that he probably tells Group 4 to do it.
Baroness Symons of Vernham Dean: I am bound to say that in "ensuring" he will probably tell someone else to do it—he is hardly going to do it himself. It is the magistrate's responsibility, as is effecting the arrangements. There may be a real difference between the noble Lord and myself, but I do not believe that it is substantial. Therefore, I hope that on reflection he will see that the responsibility placed upon the magistrate will be the same, whether one uses the word "arrange" or the word "ensure".
Earl Attlee: All the amendments I am moving today are probing. I must accept the fact that my speech may

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not have been well linked to the amendment before us, but the Minister did not say whether my scenario was far-fetched or whether it was a possibility. Can she comment on that?
Baroness Symons of Vernham Dean: I can. As with all hypothetical examples, it is theoretically possible, but it leaves out consideration of the wider context. Under the current system, we could well let Private Badjob be with his wife, girlfriend, or whoever, at her time of need. The Ministry of Defence and the Armed Forces are not vindictive. All justice systems seek to be as fair as possible by taking the wider picture into account.
Theoretically, yes, the hypothesis which the noble Earl asked us to consider is possible, but it must be put into the wider context of dealing with these issues as sensibly as possible and, while not in any way undermining discipline, recognising that compassion is an important part of that.
Earl Attlee: Of course I fully agree that compassion is an essential component of discipline. I thank the Minister for her comments and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
2.45 p.m.
[Amendments Nos. 72 to 76 not moved.]
Clause 9 agreed to.
[Amendment No. 77 not moved.]
Clause 10 agreed to.
Schedule 1 agreed to.
Clause 11 [Right to elect court-martial trial]:
Earl Attlee Earl Attlee moved Amendment No. 78:
Page 32, line 23. leave out ("Before") and insert ("After").
The noble Earl said: My Lords, in moving the amendment, it may be convenient if I speak also to Amendments Nos. 79 to 85.
My amendment seeks to reverse the effect of Clause 11. The noble and gallant Lord, Lord Carver, has a slightly different approach to the same problem, as he will oppose the Question that Clause 11 stand part of the Bill. I do not understand why the accused will be in a better and fairer position if he is able to elect to go for courts martial earlier, especially as he will now have the opportunity to appeal to a compliant court after summary jurisdiction. That is provided for under later clauses of the Bill.
At Second Reading I explained how it might well be disadvantageous for the accused to elect for courts martial when he was unaware that the commanding officer was minded to dismiss the charges. The CO will never prejudice his position by giving any indication, however informal, that he is minded to dismiss any charges.
The ability of the accused to elect for courts martial is necessary in order to give the accused some protection against what I should call a "stitch-up". The problem is that the changes proposed by the Government do absolutely nothing to address that problem. I apologise to the Committee for not having tabled a suitable amendment to deal with the very real problem of the accused being put under unfair pressure to withdraw his election for courts martial. At a later stage I shall table an amendment to limit who can counsel the accused to withdraw his election for courts martial, but I do not expect the Minister to comment at this point.
The Minister will no doubt pray in aid Clause 12 which limits the courts martial to the powers which the CO would have had if the accused had not elected for courts martial. However, the Committee needs to understand that the CO's powers are extensive. For a minor case, the courts martial could apply a much more severe penalty than the CO would have applied. The CO will of course know the accused well and he can take all the factors into consideration when determining sentence. On the other hand, members of the courts martial must not have any knowledge of the accused. Furthermore, they are also well used to hearing well-constructed pleas of mitigation. Indeed, they will have heard it all before.
Will the Minister confirm that I am right in believing that members of a courts martial may knowingly apply a more severe sentence than they believe the CO would have applied, although obviously not one outside the CO's powers under summary jurisdiction? Am I right in believing that the members of a courts martial will not have to put themselves in the mind of the CO and instead they may come to their own decision based upon the evidence before them? Furthermore, am I right in believing that the courts martial may take into consideration the probability that the soldier has elected for courts martial despite it being a minor case? I shall listen with interest to the Minister's reply. I beg to move.
Lord Bramall: This is a crucial amendment. It impinges upon the whole question of appeal against a summary sentence of the commanding officer and it will of course be dealt with by my noble and gallant friend Lord Carver when he moves his amendment to resist the whole of Clause 11.
My own view is that the forces probably could live with the soldier making a choice as to whether to be tried by courts martial or summarily before he is even arraigned before his commanding officer. In most cases, I believe that service people would choose to go before the commanding officer. In the Second Reading debate the noble Baroness quoted some statistics to support that. Quite apart from the uncertainty and the deferment of justice in general, it seems utterly senseless and over-ponderous for a soldier to be forced to make that decision before the evidence has even been heard and when, as a result of that evidence, he may be about to be acquitted or even given the most

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minor punishment. Therefore, I shall withhold judgment on the amendment until I have heard the arguments put forward by my noble and gallant friend.
Lord Burnham: Perhaps I may raise one small point in relation to this issue. What will happen if two or more persons are accused of similar offences and one agrees to go for summary trial and the other wishes to go to court martial? No doubt the noble Baroness will say that the same will apply if it happens at a later stage. But because it is at a later stage in the procedure, the chances of it happening are reduced.
Lord Lea of Crondall: It is helpful to have heard the noble and gallant Lord, Lord Bramall, clarify this afternoon that he does not feel that there would be a widespread preference for a courts martial as against having one's case dealt with by the commanding officer. I believe that one of the central concerns expressed in the Second Reading debate was that the Bill taken as a whole, and particularly this section, would undermine the authority of commanding officers. With my limited experience of those matters, I should have thought it extremely unlikely that many people would opt for a courts martial when they will continue to serve in a particular unit.
However, has the Ministry of Defence been able to obtain any feedback on this very point from different levels in the armed services? If so, has such feedback shown that, given this clause, a large number of people would opt for courts martial? I should have thought that that was unlikely and, in so far as there seems to be a conflict of evidence on this point at the moment, I suggest that in the course of the Bill's passage through Parliament, which will obviously take some weeks and months, it would be desirable that surveys be carried out at different levels in the Armed Forces as to what people believe would happen. I do not believe that there is a difference of opinion in the House that the authority of the commanding officer should not be undermined.
Baroness Thomas of Walliswood: It was useful to the Committee that, in putting forward his amendment, the noble Earl, Lord Attlee, quite clearly indicated, as, indeed, do the amendments, that his intention is to reverse the purpose of the Bill. Therefore, we are in no doubt as to what he is trying to do, even though he is doing it by a different method. I believe that the intervention of the noble Lord, Lord Lea, was also helpful. Inasmuch as I have been able to hear comments from members of the armed services on the matter, my impression is that they do not expect there to be many applications for courts martial, particularly on minor charges.
However, situations could arise in which a soldier might prefer to be tried away from the atmosphere of his or her own unit because it was the circumstances surrounding the person in that unit which are the main cause of his difficulties. Therefore, I can see that even those who are involved in minor cases might occasionally wish to seek a courts martial. I have also
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come across an officer, who, as a commanding officer, felt embarrassed that he was not able to offer a courts martial under existing law and felt obliged to act in a way which he felt was not satisfactory from the point of view of natural justice.
Baroness Symons of Vernham Dean: Clause 11 inserts a new section into both the Army and Air Force Acts 1955 to alter the process of electing trial by court martial.
The availability of a right to choose to be tried by court martial instead of being dealt with summarily is long established. The right to make that choice was extended by the Armed Forces Act 1996 so that it became available to all individuals facing summary proceedings in the Army and Royal Air Force. In the Royal Navy it was accepted that that change should not be made because of the need to be able to deal quickly with minor disciplinary problems at sea. Nevertheless, in the Royal Navy, there is a right to elect trial by court martial for the more serious offences capable of being dealt with summarily.
The right to elect trial by court martial was extended in the 1996 Act because of concerns that summary proceedings on their own might not be compatible with the European Convention on Human Rights. The point at issue here is the independence and impartiality of the commanding officer. It was considered that offering a wider right to trial by a court complying with the convention—a court martial—would meet such concerns.
As the Committee will know, the Bill proposes to establish a summary appeal court. Apart from what the Government see as the intrinsic fairness of providing a proper mechanism for appealing against any summary findings, that new procedure is necessary to put beyond doubt the question of compatibility with the convention.
However, we do not wish there to be any confusion between the new right of appeal and the existing right to elect trial by court martial. We believe that there could be such confusion if we leave the procedures for electing trial by court martial as they are. That would be part of the effect of the amendments which we are discussing.
That is because in the Army and Royal Air Force the accused is not given the right to elect for trial by court-martial until after the commanding officer has found the charge proved. As I said on Second Reading, that procedure may be considered to have some of the characteristics of an appeal. The other effect of the amendments is to formalise that. The election for trial by court-martial after the commanding officer has indicated his finding but prior to sentence will be an appeal if this amendment is accepted.
It might be said that the amendments illustrate perfectly the confusion between the present arrangements and an appeal. Indeed, I should tell the Committee that when I started to deal with this issue, I was extremely confused about this point. I hope that I am not now. But I believe that it is open to confusion.

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On the other hand, Clause 11 as drafted means that the commanding officer will give the accused the right to elect trial by court martial prior to the commencement of any summary dealings. That will bring the Army and the Royal Air Force into line in that respect with the procedure which already operates in the Royal Navy, where the accused has the right to elect trial by court martial at the beginning of the summary process. Therefore, there is no need to change that aspect of the system.
We believe that it is important that our proposal should be left as it is. It will enable the accused to elect to be dealt with by a compliant court from the outset. In the context of the convention, we believe it is necessary that the right to elect from the outset is established.
Another flaw in the amendments is that the right to appeal will be exercised at a point when the accused knows only part of his fate. He will be appealing against the finding alone. He will not know, when initiating the appeal, whether the commanding officer is considering a custodial sentence, a fine or a lesser punishment. That does not seem to us to be a very informed basis for launching an appeal. Nor do we agree that that proposal would sustain the authority of the commanding officer in a way that our Clause 11 would not.
My noble friend Lord Lea asked what evidence there is of how individuals might opt for the courts martial alternative. Only experience will show how the new procedures operate in practice. However, we can draw on our knowledge of how the procedures relating to the point at which an individual may elect trial by court martial already operate in the Royal Navy. We can also draw on what has happened since the right to elect trial by court martial was established universally in the Royal Navy and the Royal Air Force in 1997.
The fact is that the change simply has not produced an avalanche of courts martial. Although we cannot know for certain, such evidence as we have, which I suggest to your Lordships is reasonably convincing, would seem to indicate that a huge number of courts martial will not be forthcoming.
The noble Earl, Lord Attlee, asked if a court martial can knowingly apply a more severe sentence than they think the commanding officer might have applied. Yes, that is possible but there is no intention to do so deliberately. As I am sure the noble Earl is aware, both the commanding officer and the court martial have a range of identical sentences available to them. The court martial would not attempt to second-guess commanding officers. As I am sure the noble Earl would expect me to say, members would be expected to use their experience and judgment when reaching their verdicts.
Once they have been introduced, we will monitor closely the new proceedings. If it becomes clear that there is need for modification we shall consider, as indeed we always can, what options are available to us for remedial action.
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Perhaps I may stress to your Lordships that the proposals in the Bill have not been drawn up by one or two liberal lawyers sitting in a darkened room somewhere within the MoD trying to think of the best way to plug every possible gap. They have been drawn up with the active involvement of the services with a view to ensuring that they work. They have to work and be practical and flexible. They must not undermine discipline or impede the maintenance of operational effectiveness. Who can give us the best possible advice on that?—those who see active service, who come in and out of my office and other ministerial offices and who, I am sure, have given us as good advice on this issue as they do on so many others.
Earl Attlee: My Lords, I am extremely grateful for the Minister's response. The noble and gallant Lord, Lord Bramall, suggested that the services could live with it. He is probably right about that. The noble Lord, Lord Lea, talked about research on the number of court martial events. One of the difficulties we have on these Benches is that we did not have an awful lot of time to table parliamentary Questions to find out how many courts martial have taken place, how many people have been acquitted and how many people have elected for court martial.
The noble Baroness, Lady Thomas of Walliswood, agreed with me that undue pressure could be applied and I will definitely come back on that with a suitable amendment. I agree with her comment in relation to the 1996 Act, which was a very desirable Act.
Baroness Thomas of Walliswood: I am sorry to interrupt the noble Earl when he is winding up, but for the purposes of clarity perhaps I should say that my remarks were directed towards making the assertion that some soldiers might elect courts martial on a minor offence if they felt that the circumstances surrounding them in that unit were unfavourable to having a fair decision made by the commanding officer. That was the purpose of my remarks.
Earl Attlee: I entirely agree with the noble Baroness, Lady Thomas. I found the arguments of the Minister very attractive. She said that electing for courts martial after the commanding officer had heard the evidence would amount to an appeal. I will read carefully what she said. I intend to come back at Report with suitable amendments to deal with the problems of unfair pressure being applied. I may return to this issue, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 79 to 85 not moved.]
Clause 11 [Right to elect court-martial trial]:
On Question, Whether Clause 11 shall stand part of the Bill?
Lord Carver: In speaking to this clause, with the leave of the Committee I shall speak also to Clauses 14 to 25. In opposing that these clauses should stand part of the

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Bill, my target is the summary appeal court. It would be established by Clauses 14 to 25, but Clause 11 is directly relevant to it.
In the debate on Second Reading my noble and gallant friends and I and other noble Lords made it clear that of all the proposals in this Bill, that was the one which most seriously tended to undermine the position of the commanding officer as the fount of authority and justice in the unit. It would mean that a serviceman, having elected to be tried by his commanding officer, having been found guilty and awarded a punishment by him, could then say, "I do not like that. I shall appeal to the summary appeal court". That would not only be a direct blow to the commanding officer's authority, but also involve delay as well as bureaucratic effort and expense.
The noble Earl, Lord Attlee, in the Second Reading debate rightly emphasised the importance to discipline, and to the efficiency of the unit, of justice being swift. Why, therefore, have the Government proposed this provision? It derives from the ruling of the European Court of Human Rights in interpreting Article 6 of the Convention, which deals with the right to fair trial, where it establishes the right to,
"a fair and public hearing [by] an independent and impartial tribunal established by law".
In the case of Lance-Sergeant Findlay they ruled that a courts martial convened and presided over by a higher military authority was not "independent and impartial". That led to the changes to courts martial brought about by the Armed Forces Act 1966.
The Government appear to fear that in the case of a commanding officer's summary jurisdiction, our own courts, in interpreting the Human Rights Act, would take the same view or, if they did not, that an appeal from them to Strasbourg would do so; that they would rule that a serviceman must be able to elect trial by courts martial before his commanding officer starts summary proceedings; and that if he does not, and chooses summary trial, and the CO finds him guilty and sentences him to some punishment, the man must have an avenue of appeal.
I believe that the Ministry of Defence's legal advisers are taking too pessimistic a view of the likelihood of that. It is certainly at variance with the advice tendered by the noble and learned Lord the Lord Chancellor when the Human Rights Bill was being discussed in this House. He described the convention as a "flexible instrument" and played down the fears expressed by some noble Lords that its incorporation into our domestic law could have serious implications for the disciplinary codes of the service.
I contend that the present system under the Army and Air Force Acts is perfectly fair and can be defended in the courts as consistent with the convention. The case against a soldier or airman, and the man's own explanation in his defence, are heard by the commanding officer. The latter either dismisses the charge or decides that the accused is guilty. If the latter, he offers him the choice between being tried by courts martial or accepting the commanding officer's
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award of sentence. If he accepts that award, how can he claim that he has not had a fair trial? If he elects trial by courts martial, then how can he claim it? Therefore, if the summary procedure under the Army and Air Force Acts is not changed by Clause 11, I contend that there is no need for a summary appeal court and that, consequently, Clauses 14 to 25 would be redundant.
The Minister cited the case of the Royal Navy. Under the Naval Discipline Act, a sailor has the right to elect courts martial before summary proceedings begin. If he chooses trial by commanding officer, I understand that he then has no right of appeal against the latter's finding or award. If that is the case, and if the Government believe that he ought to have, my answer is that the Navy should be given the choice of either coming into line with the Army and Air Force or, if they cannot bear the thought of that, of having a summary appeal of their own. After all, they have their own Judge-Advocate.
I appeal to the Minister to go back to her legal advisers and ask them to consider whether they are being too cautious and pessimistic. Perhaps she might talk to her noble and learned friend the Lord Chancellor and ask him to persuade them to come round to the views that he expressed when the Human Rights Act was being discussed in this House.
Lord Craig of Radley: I put my name down to speak on the Question that Clause 11 shall stand part of the Bill because, like the noble and gallant Lord, Lord Carver, I feel that this particular clause is misplaced. I do not wish to detain Members of the Committee for long. I have but three brief points to add to the remarks of the noble and gallant Lord.
First, I believe that this approach tends to undermine the importance of courts martial in the overall spread of legal arrangements that the services have. Historically, a courts martial is seen as a much more important court than any form of summary jurisdiction. I do not like to see a courts martial being placed in the position of having no greater tariff at its disposal than a lower summary court.
Secondly, as the noble and gallant Lord said, I believe that the position of the commanding officer is inevitably undermined by this approach. We have a responsibility to do all that we possibly can to sustain the authority of the commanding officer, for all the very good and many reasons that have been brought to the attention of noble Lords during the course of the Second Reading debate and, again, this afternoon.
Thirdly, I, too, like the noble and gallant Lord, Lord Carver, return to the words of the noble and learned Lord the Lord Chancellor when we debated the Human Rights Bill. He said that there was flexibility in the human rights convention and that it posed no threat to the effectiveness of the Armed Forces. I believe that there is a potential threat here. Indeed, as the noble and gallant Lord, Lord Carver, suggested, I think it would be a great help if the advisers of the Ministry of Defence were to approach the Lord Chancellor's office to see whether we can gain some flexibility in the direction that would help the authority of the commanding officer.
3.15 p.m.
Lord Bramall: Before I support my noble and gallant friend Lord Carver on this measure I shall try once again to dispel a second misapprehension; namely, that noble and gallant Lords and other noble Lords who criticise this Bill somehow belong to a dying breed who hark back to the days of iron discipline and fierce regulations all designed to inculcate a greater fear than the enemy could possibly achieve, and that somehow we find it difficult to adapt to the development of man management and the greater sensitivities of the modern soldier. Perhaps the noble Lord, Lord Wallace of Saltaire, harbours such dark thoughts.
However, nothing could be further from the truth. Let me quickly—even if constitutes a short digression—read something that was written about one of the battalions of my regiment,
"I have the pleasure to observe this regiment possesses an excellent spirit and tin t both officers and men take a pride in doing their duty. Their movement in the field is perfect; it is evident that not only officers but each individual soldier knows perfectly what he has to do: the discipline is carried on without severity; the officers are attached to the men, the men to the officers".
In case noble Lords think that I am directly or indirectly blowing my own trumpet, I point out that that was written in Sicily in 1806 by the great British general, Sir John Moore, about a battalion of the 52nd Light Infantry, later the Oxfordshire and Buckinghamshire Light Infantry, now part of my own regiment, the Royal Greenjackets.
Since that day that regiment, with its rifle and light division traditions, and a number of like minded regiments and corps, have, as well as taking pride in their fighting qualities and professional skill—because that is what the Armed Forces are there for—kept and sought to develop those standards of intelligent and humane discipline, sympathy and understanding between all ranks and concern for the individual, his welfare and that of his dependants. With, of course, different emphasis, different styles and traditions, each with their own strength, these standards, certainly since World War Two, have been developed and are inculcated at Sandhurst and other establishments and are generally standard practice throughout the British Army and, I have no doubt, throughout the other services also.
I hope that the impression will not be given that these officials and law officers meeting in well lit rooms in the Ministry of Defence and with balanced ideas have some sort of monopoly of what constitutes justice and disciplinary values in a modern military society. I believe that the kind of background I have described is the right kind of background against which sensible, essential discipline, without which fighting men become a collection of unhappy, frightened individuals, should be considered as opposed to too legalistic arguments.
Of course I accept that none of that gets away from the Government's real need to make arrest and trial procedures in the services compatible with what will soon be British law. But the point that my noble and gallant friends have made, and with which I entirely
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agree, is that more is being put into this Bill than is strictly necessary for compliance. Indeed even the Minister, when discussing the right of appeal against a summary sentence, said only,
"that to continue with the present arrangements may not he compatible with the convention".
I am sure that her words were carefully considered. She continued,
"and would allow the possibility"—
not the probability—
"of a challenge to the powers of the commanding officer".
Many of us think that if necessary this should be tested because if, as I said in the Second Reading debate and my noble and gallant friends have said, a soldier can have free and direct access to a European Convention on Human Rights compliant court—that is, a courts martial, with its own right of appeal—the right of appeal against the commanding officer's summary sentence to a special court would seem to be superfluous.
Perhaps the forces could live—as I said before—with this business of electing trial from the outset, but, as my noble and gallant friend has pointed out, how much better the present system whereby before passing sentence the accused is asked whether he will accept the award or prefer to be tried by courts martial. This would greatly speed up justice and of course, as has been said in another context, justice delayed is justice denied. It would remove that uncertainty—one of the fundamental principles of discipline is that it should be consistent and well understood as well as fair—and it would not undermine the all-important authority of the commanding officer, on whom everything depends in terms of morale and performance. It would, of course, make Clauses 11 and 14 to 25 unnecessary.
Lord Campbell of Alloway: I have put my name to the amendment because I was present at Second Reading and I defer to the views of the noble and gallant Lords who spoke then, and to all other noble Lords who spoke in favour of the proposition. It was a body of opinion which no Government could possibly put aside and ignore. I defer to the speeches of the three noble and gallant Lords. It is a privilege to follow them and I shall be brief.
The noble and gallant Lord, Lord Bramall, put the matter very clearly: there is much provision in the Bill which is unnecessary. To put the proposition round the other way, as I was trying to do earlier; which precise articles of the convention does the existing regime—the discipline Acts—breach? It is the same problem.
One hopes that we can return to this issue on Report—we should not divide today—but the essential argument, briefly, can be put in an analysis. As part of the proposed appellate procedure under Clauses 14 to 25, Clause 11 imports the right of election to trial by courts martial before there are summary proceedings. Therefore, in speaking against Clause 11 stand part, it is logical—certainly at Committee stage—to speak to Clauses 14 to 25 not standing part.

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Why should they not stand part? Essentially the three reasons that have been given are, first, that they erode the status and authority of the commanding officer; secondly, that they are unworkable in practice. With the greatest respect to the noble Baroness, it is no good saying, "This is workable; it is designed to be workable. We have sorted this out with people; they all think that it is workable". The noble and gallant Lords have, on two occasions, assured the House that it is not workable. My noble friend Lord Vivian, my noble friend Lord Attlee, the noble Lord, Lord Hardy of Wath, and the noble Lord, Lord Chalfont, who spoke at Second Reading, have all said that, in practice, this is not workable. I have already drawn to your Lordships' attention the difficulty of seeking to make any effective distinction between war as war and warlike activities in which the Government's proposals would be unworkable.
The third reason is that the clauses are not necessary. I shall listen to the answer to that question with great care. They are not necessary because the existing regime does not breach certain provisions of the identifiable articles of the convention.
When the convention was ratified, no thought was given to the effect upon military discipline of any article in this treaty. If you read through the convention, none will be found. Furthermore, it was wholly implicit that the rights and freedoms conferred on civilians would suffer limitations when applied to discipline in the Armed Forces. The basic concept of the convention seems to have been wholly ignored by the Government. Rolv Rysdal, who served for so long and with such distinction as a judge in the Court of Justice, pointed out that the convention was not intended to impose rigid, uniform solutions.
There is no binding system of judicial precedent. Instead, there is a system of overriding flexibility in which each case is decided on its own facts and merits. That is all relevant to the point made by the noble and gallant Lord, Lord Bramall, and made by myself in another form; namely, is this necessary from the point of view of compliance with the convention?
The question arises on a subsequent amendment. If an amendment to set up a courts martial appeal court is passed, it could then be ever said that the scheme as proposed—namely, retention of the scheme we already have with that amendment and that appeal court—could conceivably breach the convention, because we have our own domestic appellate forum.
If the amendment were to be accepted, not only would there be no need for Clause 11 to stand part, there would also be no need for Clauses 14 to 25 to stand part. The Bill before us takes a wholly different approach to the option which commended itself to the Government. But that option has been foreclosed. Is there not a heavy burden of justification to be discharged before Clause 11 or Clauses 14 to 25 shall stand part?
Baroness Thomas of Walliswood: In the unavoidable absence of my noble friend it falls to me, first, to
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reassure the noble and gallant Lord, Lord Bramall, that my noble friend does not harbour dark thoughts about anyone. It is not in his nature to do so.
Secondly, as a layman—perhaps I may say how much I miss the presence of my noble friend Lord Lester of Herne Hill in this matter—I believe that a basic principle lies behind the Bill; namely, that members of the armed services are citizens—indeed, they are humans because the convention refers to human rights—and, as far as possible, they should enjoy the same rights as everyone else. I take that to be the foundation of the Bill. Earlier on in today's proceedings, the Minister made a declaration to that effect. We were not able to respond at that time so I am taking this opportunity to say that we agree with the general purpose of the Bill and will support the Government in retaining the clauses which the noble and gallant Lords wish to remove from the Bill.
3.30 p.m.
Baroness Symons of Vernham Dean: The noble and gallant Lord, Lord Carver, seeks to exclude from the Bill Clause 11, which is the clause dealing with the right to elect for courts martial. The noble and gallant Lord reminded us of the exchanges in your Lordships' House on the Human Rights Bill. When that Bill was debated in the House, the Lord Chancellor indicated the Government's willingness to consider designating military courts as the proper venue for consideration of complaints on convention grounds by members of the Armed Forces. That possibility was given careful consideration in full consultation with the three services. However, it was decided that using courts martial to hear purely convention points would be inappropriate. Courts martial are not standing courts. They would have to be convened on an ad hoc basis to hear criminal charges.
My noble and learned friend also said that there would be situations in which special considerations would certainly have to apply to the Armed Forces because of the nature of their work. My noble and learned friend added that it would be a matter for the Armed Forces to look at each situation on its merits and to ensure that any actions they took were consistent with the convention rights as they will be applied to the particular circumstances of the case.
There has been an implication, at least from some Members of the Committee, of inconsistency with regard to what my noble and learned friend said at that time and what we are proposing in the Bill. I believe that there is no such inconsistency. My noble and learned friend said that the situation would be looked at on its merits, but he also stressed the importance of compliance with the convention. The Bill is tailored precisely to meet the needs of the Armed Forces. I believe that what my noble and learned friend said at that time is on all fours with what the Bill says now.
Perhaps I may take up the point raised by the noble Lord, Lord Campbell of Alloway. His point can be summed up very succinctly as: is any of this really necessary? The Ministry of Defence has been in touch with the Lord Chancellor's office over a number of

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months and has discussed the issue as part of our collective consideration of the Bill across government. The view taken by the Lord Chancellor's office and by the Ministry of Defence is that the current summary justice system on its own is not compliant with the convention and that the right to elect for a courts martial from the outset and the establishment of a summary appeal court will make the disciplinary system in our Armed Forces compliant. It is taking those two elements together that makes it compliant. That is why the legislation is necessary.
Our noble and gallant colleagues have said that Clause 11 and indeed the other clauses to which the noble and gallant Lord, Lord Carver, referred undermine the authority of the commanding officer. The noble and gallant Lords brought that theme before your Lordships at Second Reading and they have been remarkably consistent in doing so again today. But these proposals have not sprung up overnight in some dark room in the MoD. They have been developed with those who currently serve in the services, specifically, intentionally and deliberately to preserve the balance between the imperative of upholding authority in the Armed Forces and the rights of individuals. They are intended to preserve that all-important balance.
The proposal that service personnel can appeal against the decision of a commanding officer is not very different in principle from the option given to an accused to elect for trial by courts martial once he has heard his commanding officer's decision. It could be said that that is no less of a second bite at the cherry. However, none of the changes to the courts martial system implemented by the Armed Forces Act 1996 has had any adverse effect whatever on the authority of commanding officers.
We do not expect a right of appeal to lead to cases challenging the decision of a commanding officer. Initially, of course, there may be quite a few such cases. Over time, the number of appeals will no doubt be influenced by a number of factors, including, naturally, the success rate of those appeals.
We need to consider what would happen if we did not make these changes. Failure to do so would render the system for service discipline vulnerable to challenge in our domestic courts. The risk of frequent and successful challenges to the system would create an untenable position. That would undermine service discipline and the authority of the commanding officer. The commanding officer's judgments would be subject to constant appeal in the courts or through judicial review.
The Bill has been under consideration for over a year by the civil, legal and military authorities. The Chief of the Defence Staff has recognised unequivocally the need to go ahead with this legislation. If we do not, when the convention comes into force in October 2000 British Armed Forces could be faced with individuals saying that the discipline system is in breach of the convention or is not compliant with it. At that point, the disciplinary system would certainly lose credibility, as would commanding officers.
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I noted the moving quotation from the noble and gallant Lord, Lord Bramall. But I am bound to say to him that time moves on. A quotation from a time when civil rights were very different from what they are today needs to be placed in context. I remind the Committee that it comes from a time when noble and gallant Lords might have come into this House through rights of succession, but the noble Baroness, Lady Thomas, and I would certainly not have had a right to sit in this House.
The rights of our servicemen and women must keep pace with the rights that the people of this country expect for themselves. We must respect the rights of those in our armed services. In a modern world they have the same right to justice as the rest of us. To exclude them, uniquely, would be not to respect to them.
It is also possible that young people. when considering whether to be recruited into the Armed Forces, would be very concerned to think that they did not have the same rights under the European convention as their friends entering other walks of life.
Lord Bramall: I am obliged to the noble Baroness for giving way and apologise for interrupting. She has made great play of doing this in conjunction with the services. It is a reasonable point for her to make. But is she saying that the Armed Forces welcome the Bill? If they do not welcome it—and I know they do not—what are they concerned about, if not that the discipline and authority of commanding officers will in some way be affected, even though it is necessarily because of the European convention?
She makes the point about human rights. I gave that boring little history lesson because I wanted to point out that in the services we had a good deal more concern for our fighting men and soldiers than was often found in civilian life. We were as conscious as anyone of the importance of the individual's self-respect. It is not right to suggest that somehow we are being dragged into the 20th century on man management because it would not be true.
Baroness Symons of Vernham Dean: The noble and gallant Lord asked me whether the chiefs of staff of all three services welcomed the legislation. I disagree with him. My discussions with Sir Charles Guthrie, as the Chief of the Defence Staff, and I understand the discussions that he had with the chiefs of staff of all the services, show that they want the legislation. They think that not having it would render the current disciplinary system untenable. The noble and gallant Lord cannot say, "Oh but if we had not signed up to the Human Rights Act last year they would not say that". We are where we are. That is now law. The circumstances are as they are, that legislation has been enacted. The chiefs of staff recognise that the legislation is important. They welcome it because it is necessary.
I am sorry to be so emphatic with the noble and gallant Lord on this. I did not find what he called his "history lesson" in any way boring, I thought it was extremely interesting and moving. It spoke of all that

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is and has been good in our Armed Forces and the enormous care that officers in our Armed Forces have had historically and I know continue to have to this day for those in their charge.
But we are dealing now with the end of the 20th century and the human and legal rights that individuals can expect as citizens of this country. Uniquely to exclude our Armed Forces from those rights is not tenable.
The chiefs of staff are equally clear that abandoning the summary justice system would be untenable. The Bill does not do that. One would almost think, from the remarks of some of our noble and gallant friends in the House, that the rights to go to summary justice were being excluded. We all know that that is not the case. All that is being done is to give service men and women the option to go to a compliant court.
The proposals of the Bill are necessary to ensure compliance with the European Convention on Human Rights. I say unequivocally that that is not just my opinion, it is the opinion of the Armed Forces and the chiefs of staff. It is also the opinion of the Ministry of Defence and of leading counsel.
3.45 p.m.
Lord Molyneaux of Killead: The noble Baroness said—I accept her word—that the Chief of the Defence Staff wanted this legislation. First, is it a question of his desiring this legislation, or does he simply accept the inevitable by virtue of his position? Secondly, in my widespread contacts with servicemen at all levels, particularly non-commissioned ranks, and as president of a branch of the Royal British Legion which makes its facilities available to service personnel, I have never been told in response to any of my questions, "Yes, we would like to have this legislation". I do not doubt the word of the noble Baroness, but my impression is different from hers.
Baroness Symons of Vernham Dean: I am not surprised that the impression of all your Lordships is different from mine. I am sure that the noble and gallant Lords in voicing their fears about the authority of commanding officers believe everything that they have said. But that is not a view which is shared by the chiefs of staff. They are absolutely clear that to fail to implement this legislation will render the disciplinary system untenable and that, obviously, we must maintain the authority of commanding officers. The noble Lord raises very much the same question as that spoken to by the noble Lord, Lord Campbell of Alloway. I have been very careful in my approach to this matter. It is always difficult to try to put words into the mouths of others. I deliberately spoke to General Sir Charles Guthrie and asked him what I might tell noble Lords about his views on this legislation. I shall quote exactly what Sir Charles has agreed that I may say in this Chamber. The services at all levels wish to introduce compliant disciplinary procedures as soon as possible. Ideally, they would like
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revised procedures introduced during the current legislative Session. He emphasises that this is the firm recommendation of the chiefs of staff.
That is what the chiefs of staff have said. They are the ones in the field with current responsibility for Her Majesty's Armed Forces. I am bound to tell your Lordships that there have been disagreements in this Chamber in the past about whether the chiefs of staff really have given certain advice. My mind goes back to debates in this Chamber about Kosovo when it was said that some of the advice that we had received was not tenable. It turned out that it was. I believe that the advice that we have received is trustworthy and merits as much consideration by noble Lords this afternoon as anything else that we have debated on the subject of commanding officers.
Lord Carver: The noble Baroness puts forward a passionate justification for Clause 11 of the Bill. I believe that there is a great deal of exaggeration in the response of the noble Baroness. All we arguing about here is whether a serviceman or woman must choose trial by court martial or his or her commanding officer before any proceedings start or after the individual has been found guilty of the offence charged. I believe it is much fairer that the commanding officer should have the opportunity to find the soldier, sailor or airman not guilty at an early stage or be able to award a punishment—he knows the man or woman—that takes account of both the individual and the circumstances in which the offence was committed. Under the present system, the commanding officer having found the serviceman or woman guilty of the offence on the evidence produced, he then offers him or her the choice of accepting the commanding officer's award or of having a court martial where the matter will be heard again. I believe that that is better for service discipline. It is also fairer than the individual being faced at the beginning with the decision as to whether or not he or she will choose a court martial.
I strongly urge the Minister to think again on the issue. I am sorry to say that the Minister used somewhat extravagant language: that the CO's judgment would be open to constant challenge by the courts. I do not believe that it would. The existing Army and Royal Air Force legislation is perfectly fair. The man has his choice when he knows the decision of the commanding officer. To force the individual to make up his mind prior to that is less fair and less just.
I hope that the Minister will think again on the issue. There is talk that the chiefs think that the provision is marvellous; I know that they do not. They seek to make the best of a bad job. I suggest that the Government discuss this specific issue with the lawyers. If necessary, it can be tested in the court. I would rather that it did not have to be. However, with the leave of the House, I withdraw my opposition to Clause 11 standing part of the Bill.
Clause 11 agreed to.
Clause 12 [Limit on powers of courts-martial where accused elected court-martial trial]:
Lord Burnham Lord Burnham moved Amendment No. 86:
Page 34, line 12, leave out ("shall not award any") and insert ("may award a").
The noble Lord said: In the fairly lengthy debate on Clause 11, the Minister spoke with conviction and passion. I speak to amendments on Clause 12, although that is not a clause which the noble and gallant Lord, Lord Carver, wishes to have withdrawn from the Bill.
I believe that I speak for all Members of the Committee when I say that we have no wish to pass any provision into legislation which may run contrary to the terms of the 1998 Act. We could not do so if we wanted to. The noble and gallant Lord spoke gloomily of trying the issue in the courts. We would not wish to make any provision which is not in the convention or the Human Rights Act and which may be considered to be derogatory to discipline.
Amendment No. 86 is curious in that it does not recommend something contrary to the convention. My noble and learned friend Lord Mayhew of Twysden raised the point at Second Reading. He suggested that a court martial should have the power to award more severe punishment than that available under summary procedure. His argument was that a superior court can normally award a more severe sentence than a lower court. He cited the Police and Criminal Evidence Act 1984.
We have been given advice that the powers of the rehearing forum should not be greater than those of the original forum from which the appeal was brought. The amendment does not deal with a rehearing, but with circumstances in which a soldier elects a courts martial or a civilian elects a Crown Court trial. Subject to what my noble friend Lord Kingsland may say, I believe that additional punishment can be awarded.
I hope that, as the proposal does not run contrary to the convention, the Minister will accept the amendment. I beg to move.
Baroness Symons of Vernham Dean: I understand the reasons for the noble Lord's amendment. It is tempting to draw parallels with the arrangements in the civilian criminal justice system. In the civilian courts, the accused, in choosing between trial by magistrates or trial in the Crown Court, faces the possibility of a heavier sentence in the higher court.
The noble and learned Lord, Lord Mayhew, drew our attention to that point at Second Reading. However, the choice facing an accused in the civilian system is also indisputably between two forms of trial which are both compatible with the European Convention on Human Rights.
On the other hand, in the services it may not be so easy to argue that summary dealings on their own are compatible with the convention. They can be made
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sound, in convention terms, by offering the alternative of trial by a compliant court and the right of appeal. However, the choice needs to be genuine, and this is not the case if an accused is compelled to put himself in jeopardy of a greater punishment in order to secure his right to a compliant court. Therefore, because he must face the possibility of a greater sentence in the compliant court, there may be less likelihood that he will make that choice. As he is in jeopardy of a higher sentence he is not being offered a genuine choice.
To retain the powers for the courts martial to award a more severe sentence—or, indeed, to allow the new summary appeal court to do so—would, therefore, not achieve the effect of bringing summary dealings within the scope of the convention. However, election for courts martial trial is not without risk from the accused's point of view. Although the court martial will be limited to the maximum sentencing powers available to the commanding officer, the accused will need to consider whether within these powers he is likely to receive a heavier sentence from the court or from the commanding officer. If he elects trial by courts martial, he will also face the risk that the prosecuting authority will consider that he should face a different charge. In this case, the accused may not be offered the option of election on the new charge, in which case there would be no limitation on the sentencing powers of the courts martial.
I hope that your Lordships appreciate that our main purpose is to ensure that the procedures for summary dealing are within the scope of the convention—that is what the legislation tries to ensure—which is of the utmost importance. The amendment would defeat that objective and I must ask the noble Lord to consider withdrawing it.
4 p.m.
Lord Burnham: Of course I accept what the Minister says with regard to another charge. However, listening to everything else that she has to say, I fear that the noble and gallant Lord, Lord Carver, is right and that those matters may well have to be tested in the courts. At Second Reading I quoted a noble and gallant Lord who said to me in private, "We know what we are talking about". I have a deep fear, in particular having just listened to the Minister, that that may not always be the case with her advisers. I fear that when we come to a later stage of the Bill, we shall have to be far more robust in our opposition to certain aspects of it than we have been today, when the Christmas spirit is all around your Lordships. Therefore, I give clear notice that we shall on a future occasion oppose this and other amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 87 not moved.]
Clause 12 agreed to.
Earl Attlee Earl Attlee moved Amendment No. 88:
After Clause 12. insert the following new clause—
CONDUCT AT COURT-MARTIAL
(" . —(1) After section 102 of each of the 1955 Acts there is inserted—
Conduct at court-martial.
102A. Unless the prosecuting authority has previously applied for and obtained leave from the court a person charged before a court-martial shall appear in uniform with belt and headgear and without escort."
(2) After section 66A of the 1957 Act there is inserted—
"Conduct at court-martial.
66B. Unless the prosecuting authority has previously applied for and obtained leave from the court a person charged before a court-martial shall appear in uniform with headgear and without escort." ").
The noble Earl said: The amendment is designed to probe the Minister's view on the courts martial procedure. Noble Lords will recall the concerns that I raised during Second Reading regarding the procedure whereby the accused is marched into the courts martial room. In short, he is marched in without belt or headgear and under escort. I must say that, as a member of courts martials, I found that unnecessary and distasteful. It added nothing to the process. As I said at Second Reading, I feel that the summary jurisdiction is far more about the maintenance of discipline and morale; in short, the military ethos. On the other hand, the courts martial system needs to be as well-developed a system of justice as we can make it.
I hope that the Committee sees me as one who believes in the need for robust disciplinary machinery and as a great traditionalist. However, I do not believe that it is necessary to disadvantage the accused by subjecting him to a somewhat degrading procedure. I also do not believe that it appears appropriate to the public and to the media. It is a hangover from a previous age.
In a civilian court, it is well known that the accused will often be advised to pay attention to his appearance; in other words, to improve it. A wise person accused will want to be deferential to the court, but he will want also to create a favourable impression. In the courts martial system, the accused is treated in a way which tends to suggest that he is already guilty, although he will of course be given a fair chance to defend himself.
I do not profess to be an expert on ceremonial or military etiquette, but I believe that the accused should be given the opportunity to pay compliment to the court in the same way as the accused in a civilian court may alter his appearance in recognition of the importance and the status of the court. I make one possible suggestion for a new procedure: the accused should march himself in unescorted and salute the president of the courts martial. The president may then order all headgear to be removed in the usual manner. I accept that if there is a possibility of the accused becoming uncontrollable then appropriate precautions would need to be taken. If the accused is acquitted at the end of the courts martial, he may replace his headgear, salute the president and march out. If he is found guilty and sentenced, he will of
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course not need his headgear. The procedure might need to be modified to take into consideration whether a custodial sentence was imposed.
I accept that the best way forward is for the defence counsel to make those detailed changes. That is not something that should be placed on the face of the Bill. Indeed, it is only the flexibility of the Committee that allows us to debate the issue this afternoon. However, I believe this to be an important matter and I look forward to hearing the Minister's views. I beg to move.
Lord Wallace of Saltaire: The amendment seems to me to make a very humane suggestion. As a probing amendment, it brings the conduct of military discipline up to what one would describe as "modern standards". The procedure as described by the noble Earl, Lord Attlee, appears to be a remnant of an 18th or 19th century army, and I trust that the Minister will respond on that point.
Lord Glenarthur: I have some sympathy with my noble friend's remarks. However, has he considered the case of a soldier who was under close arrest beforehand and who would have appeared either before his commanding officer or elsewhere similarly deprived of his belt and headgear? If that soldier appears before a courts martial or a commanding officer, does my noble friend agree that that situation might complicate matters? I am all for some degree of humanity in this matter. On the other hand, I believe that under the military ethos there is much to be said for the rather stark measures which might appear to be necessary, particularly under active service conditions.
Baroness Symons of Vernham Dean: The noble Earl raised those issues at Second Reading. I appreciate his motives for bringing them forward again now. Like the noble Earl, I am not convinced that those matters are appropriate for primary legislation. I believe that the noble Earl made clear that that was also his view and that he was using the amendment as a means of elucidating our views.
At present, those issues are covered by regulations. Perhaps I may say to the noble Earl that it is no longer the case that belt and headgear are removed from the accused. The accused removes his headgear at the same time as everyone else is required to do so. However, we must ensure that the regulations and the revised practice all work in accord with each other. I undertake to look into that point for the noble Earl. However, it is the case that those practices have now been reformed.
On the other point which was raised, I do not believe that I can agree with the provision which discontinues the use of the escort officers without the prior approval of the court. It may well be that someone is accused of a violent crime and may unexpectedly pose a threat to the safety of the court. I suggest to the noble Earl that we would be much wiser to ensure that the option of using an escort officer is left to the discretion of the services.
Earl Attlee: I am grateful to the Minister for that response. Clearly, I must have another look at my

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manual on military law and study it in greater detail. I am pleased that we have made some progress on these matters. For the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 89:
After Clause 12, irsert the following new clause—
CONVENTION RIGHTS QUESTIONS
(" . A Courts-Martial Appeal Court to determine questions solely relating to Convention Rights designated by rules made in accordance with section 9 of the Human Rights Act 1998 shall be established.").
The noble Lord said: The amendment inserts a new clause that a courts martial appeal court be set up to determine questions relating solely to convention rights. The amendment provides for a judicial domestic appellate forum in which questions concerning convention rights under the service discipline Act may be determined. The proposal was not originally mine. Indeed, it was a proposal made by the noble and learned Lord the Lord Chancellor at Third Reading of the Human Rights Bill. The proposal was made on the clear assumption that the existing regime, with this amendment proposed by the noble and learned Lord the Lord Chancellor, would comply with the convention.
The noble Baroness, Lady Symons, has been very patient. I have every sympathy and understanding for her position. She comes to this Committee and says, "Well, the chiefs of staff tell me, and I know, that they like the Bill; it is a jolly good Bill; there is nothing wrong with it; so there it is". But the noble Baroness must have some sympathy for our position.
I served in the most humble capacity in the Armed Forces. But when you have noble and gallant Lord after noble and gallant Lord coming along and saying quite the opposite of what the noble Baroness is being told by the present chiefs of staff, what is the Committee to do?
It is not a question of pressing the noble Baroness or seeking to be unkind, but she must understand that somehow or other we must sort this out. My noble friend Lord Burnham put it in one when he said, "Well, Christmas is coming", and one thing or another, but in the meantime, could we relax a bit, understand each other's position and look into this matter?
The noble Baroness is saying, "The Lord Chancellor's Department and the MoD take the view that…". With the greatest respect, I understand that the noble Baroness has to say that, but she must understand that I do not like it. Time and time again I have been asking which articles of the convention are being broken by the existing regime. That is a fair enough question when one sees that it was not my proposal; it was a proposal of the noble and learned Lord the Lord Chancellor.
I propose this amendment on the basis that it would satisfy the convention. I shall not go on about it, but I hope that the Committee will understand that it is a rather odd situation, if I can express the matter in that way.
What the noble and learned Lord the Lord Chancellor said is at col. 767. When he was rejecting my amendment—and as a rule, my amendments always are rejected—he said:
"In practice, convention issues as they might affect the Armed Forces would arise in the course of proceedings before military courts and would be resolved there. Appeals would go to the Courts Martial Appeal Court".—[Official Report, 5/2/98: cols. 767 and 768.]
And so on. That view of the noble and learned Lord the Lord Chancellor seemed perfectly reasonable.
In the wake of that proposal, I indulged in correspondence with the noble Lord, Lord Gilbert, at the MoD of which I have no copies save one, which is a comfort letter of 10th March 1998. It would be much appreciated if the noble Baroness would place copies of the correspondence—because I have lost mine save for this letter—in the Library before Report stage. The reference is dppsMB39/ltrs/an-ldcampb/Kat". I do not understand it but that is the reference. The noble and gallant Lord, Lord Carver, referred to that on Second Reading at col. 687.
Yesterday, the noble and gallant Lord, Lord Craig of Radley, showed me a letter to him from the MoD dated 9th June which informed him that it was not proposed to adopt the proposal of the Lord Chancellor, as confirmed by the comfort letter. Perhaps a copy of that letter could complete the bundle.
The comfort letter dated 10th March states:
"Dear Lord Campbell,
Thank you for your letter … As I said in my letter of 28th February"
— this has been going on for quite some time—
"we are looking into the proposal for a designated military court to determine questions solely relating to Convention rights, but until we have received advice from officials, neither Ministers nor Chiefs of Staff can take a view on this.
"Such a court would, as you mention, be designated by rules in accordance with Clause 7 of the Human Rights Bill. The rule will be agreed in the period between the Bill receiving Royal Assent and its coming into force. I do not think you need to worry, therefore, about the option being foreclosed if we do not take an immediate view on this [the Lord Chancellor's] proposal. We have enough time to reach a fully considered decision".
Accepting the assurance given by the noble Lord, Lord Gilbert, I was wholly content and did not worry until I saw a copy of the Bill which takes a totally different approach and affords no comfort at all, other than, according to the noble Baroness, to the present chiefs of staff. It appears that it does not afford universal comfort to many other people.
When one looks at the Bill and sees what the boys in the backroom have done and the intricacy of the craftsmanship, one wonders why such an exercise should have been undertaken at all when the option proposed by the Lord Chancellor, confirmed by the MoD, was wholly acceptable, wholly satisfactory and wholly in accord with the convention.
To save the time of your Lordships, I will forebear from commenting upon the reasons given in the letter dated 9th June. Frankly, when your Lordships come to consider them on Report, I believe they will find them totally incomprehensible and not satisfactory reasons. However, I would be grateful if that letter, together with the others, could be made available so that in the course of debate it may be fully discussed.
At this stage I wish only to urge the Committee, and in particular the Government, to reconsider the rather harsh attitude to the general amendments to the Bill. I suggest that the amendment, which commended itself to government, would not require any amendment to the service discipline Acts as proposed by the Bill. It would be in compliance with the convention and assure compliance with the convention. I propose to withdraw the amendment in due course. I beg to move.
Lord Craig of Radley: Mention has been made of a letter addressed to me by the noble Lord, Lord Gilbert. I am happy for that letter to be made available.
It was not clear to me at the time that he wrote whether the reason for not going forward on the lines that the noble and learned Lord the Lord Chancellor proposed—as outlined this afternoon by the noble Lord, Lord Campbell of Alloway—was in any way dependent upon cost. When the Minister addresses this point, either now or at a later stage, I hope she will be able to tell us whether or not cost was in any way part of the reason for not proceeding with what originally appeared to the Lord Chancellor and myself—I advocated it strongly—a single court martial appeal court for all servicemen's human rights cases.
Baroness Symons of Vernham Dean: Amendment No. 89 re-visits an issue that first emerged in your Lordships' Chamber when we were considering the then Human Rights Bill. The noble Lord asked me to make sure that copies of various correspondence that he mentioned were placed in the Library of the House. I am grateful to the noble and gallant Lord, Lord Craig of Radley, for giving his consent in relation to the correspondence directed to him. I shall do that as quickly as possible.
However, when the Human Rights Bill was under discussion my noble and learned friend the Lord Chancellor undertook to look into the question of designating military courts to deal with convention points arising in the Armed Forces. As I indicated in my response to the noble and gallant Lord, Lord Carver, we gave that proposition careful thought, but in the end decided against it. We did not feel that there would be enough business to justify the establishment of a special court for this purpose. We therefore examined whether courts martial themselves would be appropriate.
Amendment No. 89 appears to be related solely to the function points arising from judicial acts. This is the import of the reference to Section 9 of the Human Rights Act. The other aspect of the drafting of the
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amendment on which I could perhaps comment is the reference to a "courts martial appeal court" being established. That might cause some confusion with the existing court of that name.
The existing courts martial appeal court is competent to deal with convention points raised on appeal from the courts martial. The new summary appeal courts will be able to deal with such points raised on appeal from summary proceedings. That would cover most of the territory addressed in the noble Lord's amendment. As I said, other issues would be a matter for the High Court.
In his address to us, the noble Lord, Lord Campbell of Alloway—perhaps referring a little reflectively to the discussion we have had on the Bill this afternoon—asked what articles would be broken in the convention were we to do nothing. Perhaps I can point out that the Government believe that Article 5 would be broken, the article concerning the right to liberty, and Article 6, the article concerning the right to a fair trial. I realise that they are not specifically linked to the amendment, but as the noble Lord was good enough to put those points to me, it may be convenient to answer them now.
We are not ruthlessly brushing aside the amendments tabled to this Bill. I can assure the Committee that they commanded an enormous amount of attention in the Ministry of Defence and, with the greatest respect to all Members of the Committee, it is natural and proper that there is a particular relationship with the noble and gallant Lords who have been good enough to give us the benefit of their wisdom. Their amendments were carefully considered in framing my answers this afternoon.
Similarly, we have given very careful consideration to the concerns articulated in the amendment of the noble Lord, Lord Campbell of Alloway. However, we believe that we have a satisfactory solution to the possible areas of difficulty to which he drew attention. Therefore, we do not believe that the noble Lord's amendment is necessary.
Lord Campbell of Alloway: My Lords, I thank the noble Baroness for her attention to this matter. I agree with her that the only possible articles that could be breached are 5 and 6. I have been studying them with care for some time, and have been unable to find any way in which, in substance, the existing regime breaches those articles. However, what I would really like to know—this is something that we come back to the whole time—is what precise authorities, what reasoning and which provisions of the existing regime are running against, or counter to, the Convention on Human Rights?
I do not ask that question merely to be wicked; I ask because I have been looking through these articles for quite some time and have been unable to find out how they, in the light of any decided case, have breached the convention. However, it is getting late. I am grateful to the noble and gallant Lord for having spoken and, indeed, to the noble Baroness, Lady Symons, as always. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
Lord Renton Lord Renton moved Amendment No. 90:
After Clause 13, insert the following new clause
PROCEEDINGS FOR DISCIPLINARY OFFENCES: HUMAN RIGHTS ACT 1998
(". No provision of the Human Rights Act 1998 shall prevent proceedings being taken for offences against good order and military discipline.").
The noble Lord said: My amendment is very brief and suggests the insertion of a new clause stating that no provision of the Human Rights Act 1998 shall prevent proceedings from being taken for offences against good order and military discipline. This overlaps with a good deal of the discussion that has already taken place, but it provides an alternative to some of the suggestions that have been put forward.
The amendment would deal with that serious situation which could, and will, occasionally arise when a member, or members, of the Armed Forces—indeed, any of them—is clearly in breach of good order and military discipline because of his behaviour, which is justified by the Human Rights Act. One could elaborate on the situation and give a number of examples, but I shall give Members of the Committee only one example. Article 11 says that everyone has the right to freedom of association. One can imagine that various meetings of bodies on the streets by way of protest for or against some particular cause could very easily lead to a breach of good order and military discipline. Indeed, that is an obvious example.
Article 15, which has already been mentioned in another context today, is really too narrow to cover this point because it merely says:
"In time of war or other public emergency threatening the life of the nation".
Those are very serious and extreme circumstances. However, something could arise in peace-time and not necessarily in time of war or on an occasion threatening the life of the nation. It could arise when we have forces serving overseas within the Commonwealth to protect some interests there at the request of a Commonwealth government. Alternatively, under United Nations arrangements, it could arise where we have sent forces to try to keep the peace in some part of the world. It is not necessary for me to elaborate. I simply say that it also has the advantage of being a solution to the problem raised last year by the noble and learned Lord the Lord Chancellor on Third Reading of what was then the Human Rights Bill. I beg to move.
4.30 p.m.
Lord Campbell of Allow ay: I support this amendment. It opens up again this essential avenue as to the exclusion clauses. Between now and Report we must consider how Amendment No. 2, Amendment No. 14 and Amencment No. 90 might be converted
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into an exclusion clause. I support in principle the spirit of the amendment and hope that between now and Report some exclusion clause can be drafted.
Earl Attlee: I am grateful to my noble friend Lord Renton for introducing this amendment. As usual, he makes a good point. Can the Minister say whether there are any civilian equivalents to Section 69? Does she believe that Section 69 is necessary and, if so, how does she justify such a catch-all provision?
Is the Minister comfortable with the fact that road traffic accidents are dealt with under Section 69? I accept that an offence of careless driving can be dealt with under Section 70 of the Army Act, which incorporates civilian law into military law. However, Section 69 is used for other accidents with military vehicles. Indeed, the manual of military law shows several specimen charges under Section 69, and having an accident with a military vehicle is only one of them. With the implementation of this Bill will it not be necessary to introduce several new specific offences in order to be able to avoid having to use the catch-all offence of Section 69?
Lord Glenarthur: I listened with care to what my noble friend Lord Renton said when he moved his amendment. However, I am bound to say that I was not quite clear from what he said whether he was trying to preserve what my noble friend on the Front Bench has called the catch-all element for the purposes of military law, or whether he was stating that he considered that the Human Rights Act might go against that. It seems to me from my military experience that it is almost essential to have some kind of catch-all because, if you do not, you end up in a muddle when operating in a whole set of circumstances which are different from the ways we operate in the civilian world. I refer to the particular aspects of operating under service life and operational conditions.
I hope that it is possible for what I believe is Section 69 of the Army Act to be maintained, and that acceptance of the Act as it now stands does not indicate either that the Human Rights Act is being violated or that military law could be diminished by the provisions of the Human Rights Act 1998. That catch-all Section 69 seems to me all-important and extremely difficult to quantify because of the number of different instances which might apply at any one time.
Lord Renton: I hope that I may answer my noble friend before the Minister replies. The measure leaves the catch-all provision unimpaired but it resolves a potential conflict between all military, naval and air force law and the Human Rights Act. Some means of reconciling this matter has to be found, as indeed the noble and learned Lord the Lord Chancellor mentioned at Third Reading of what was then the Human Rights Bill.
Lord Molyneaux of Killead: I support the amendment moved by the noble Lord, Lord Renton.

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He has in former times given a great deal of study to all these intricate matters. For that reason we should take seriously both his amendment and the way that he introduced it. I also agree with him that between now and Third Reading, wherever we sit in your Lordships' House, we should all give a great deal of concentrated thinking to these matters.
Baroness Symons of Vernham Dean: I recognise the noble Lord's concern that the Bill should do nothing to undermine discipline. The noble Lord, Lord Renton, made his views very clear in an admirably succinct manner at Second Reading.
I hope that I was able to make it equally clear on that occasion that the Government do not believe that the Bill and the interests of discipline are in any way in conflict with each other. On the contrary, we consider that the Bill is essential to the maintenance of those aspects of the disciplinary procedure that we are all agreed are so important. I hope and believe that this is common ground among all of us in your Lordships' House.
I can find nothing in the Human Rights Act or in the Bill that would have the effect that the noble Lord, quite properly, seeks to avoid. The existing range of offences will remain on the statute book, as will the powers to charge for those offences. The Bill is concerned with the procedures for dealing with offences in order to ensure that they are compatible with the convention. In the Government's view, it is essential that the procedures should ensure that proceedings are handled fairly and properly in all circumstances. The Government believe that that is what the Bill is about. However, I can assure the noble Lord that there is nothing in either the Act or the Bill to prevent proceedings against good order and discipline. It would clearly be of great concern to the services and to the Ministry of Defence if that were to be the case.
The noble Earl, Lord Attlee, asked me about civilian equivalents to Section 69. We are not aware of any civilian equivalents. Perhaps that is not surprising. The section deals with conduct prejudicial to good order and discipline and the services use it for inappropriate behaviour, such as motoring offences on military land. Obviously, because it is military land and not a public highway, the Road Traffic Act does not apply. Section 69, therefore, is the means used to ensure that servicemen and servicewomen behave properly in that respect.
To return to the main points raised by the noble Lord, Lord Renton, I hope that the assurances I have given him in relation to the Act and to the Bill are of some comfort to him. I wonder whether, on that basis, the noble Lord will consider withdrawing his amendment.
Lord Renton: Naturally, I am very much relieved by the assurance given by the noble Baroness. I hope that she will not feel that I am being in any way offensive if I say that I only hope that she is right. I shall wish to consider that between now and the Report stage. Meanwhile, while thanking her and other noble Lords who have spoken on this matter, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
Clause 14 [Summary appeal courts]:
On Question, Whether Clause 14 shall stand part of the Bill?
Lord Carver: I have spoken already to Clauses 14 to 25, which will be necessary only if Clause 11 remains part of the Bill. Let me emphasise again that the issue of summary appeal courts would arise only if Clause 11 of the Bill was passed. I suggest that, as far as concerns the Army and the Air Force, life would be much simpler for everyone—and justice achieved much more quickly—if Clause 11 were not implemented, in which case Clauses 14 to 25 would not be necessary. They are necessary only because, under Clause 11, a soldier or airman will need to choose between summary trial or courts martial before he has ever faced summary trial at all.
However, I shall not go over those arguments again. I hope that, when the Bill returns to the House, some changes will have been made, if not the total abolition of Clause 11. With the leave of the Committee, I withdraw my opposition to Clauses 14 to 25 standing part of the Bill.
Clause 14 agreed to.
Clause 15 agreed to.
Clause 16 [Officers qualified for membership of summary appeal court]:
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendment No. 91:
Page 38, line 23. leave out ("83ZJ") and insert ("52FP").
The noble Baroness said: This is a minor amendment designed solely to correct a drafting error. The error arose when a section number from the Army Act 1955 and Air Force Act 1955 was incorrectly referred to in relation to the Naval Discipline Act 1957. I beg to move.
On Question, amendment agreed to.
Clause 16, as amended, agreed to.
Clause 17 agreed to.
Clause 18 [Right of appeal]:
Earl Attlee Earl Attlee moved Amendment No. 92:
Page 40, line 6, leave out ("twenty-one) and insert ("seven").
The noble Earl said: I beg to move Amendment No. 92 and at the same time I shall speak to Amendment No. 93. At Second Reading I explained at length the need to maintain morale and discipline during operations, although of course morale and discipline must also be maintained at home. Such difficulties will be magnified if, after being sentenced,

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a serviceman could spend the next three weeks telling the whole world that the punishment did not matter as he would in any case be appealing it. Conversely, others might spend the three weeks worrying about whether they should appeal, even if there appeared to be no point in doing so. No doubt the barrack room lawyers would play their full part in advising the soldier.
I also explained that in the face of such potential difficulties, the CO may be tempted to take the simple and expedient route of opting for courts martial and sending the soldier back to the UK. Unfortunately, if the soldier is found guilty by this route, his career could be completely destroyed rather than just put back a few months. The Minister rightly claims that the provisions in the Bill stem from counsel's advice as to how to comply with the ECHR. However, I am not convinced that we need such a long period as 21 days in which to bring an appeal. Seven days appears to be much more reasonable and a period with which the CO could live.
A further difficulty was touched upon by the noble and gallant Lord, Lord Bramall. He told the Committee of a situation he faced while on operations, when dealing with a spate of negligent discharges of personal weapons. What would happen to the vital principle of the need to apply discipline consistently if, in the case outlined by the noble and gallant Lord, two soldiers had to be disciplined for the same offence? What would happen if one soldier decided to appeal and the other did not? How would these two soldiers be dealt with consistently? I beg to move.
Baroness Symons of Vernham Dean: I am entirely clear why these amendments have been tabled. The concerns that they reflect were eloquently expressed during the Second Reading debate. It was said that summary discipline would be undermined if the impact of immediate punishment was lost. I should emphasise that, under the proposals in the Bill, sentences will take immediate effect except, of course, for custodial sentences. I acknowledge that these were the area of concern to noble Lords. However, if the purpose of the amendments is to reinstate, as far as possible, the effect of the short, sharp shock, they do not achieve that end. We accept that any period of suspension, be it seven or 21 days, will take away the immediate effect. We chose a period of 21 days quite deliberately as the time limit for summary appeals to the Crown Court. It seemed logical to remain in line with the civilian courts as far as possible. This period also allows sufficient time for an accused to prepare properly. He would need to prepare an application for legal aid and await a decision on that. He would also need to arrange an appointment and get advice from a legal representative. If a shorter period is imposed, it is inevitable that there will be a greater number of applicants seeking leave to appeal out of time or people will appeal automatically to ensure that they are within time, with the risk that they will later withdraw the appeal. In addition, we believe that any period under 10 days runs the risk of being unreasonable, given the wide variety of circumstances
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and locations in which our personnel may find themselves, and may well be incompatible with the convention.
However, I appreciate that the intentions of the noble Earl in moving the amendment are entirely benign and worthy. If your Lordships agree, I am prepared to consider the time limit question further.
4.45 p.m.
Earl Attlee: I am extremely grateful for and pleasantly surprised by that response. I should like to touch on another problem. The accused will normally know if he has been unfairly dealt with and so ought to be able quite quickly to make a decision about appealing. But on operations he might not be able effectively to obtain impartial legal advice. However, under subsections (2) and (3) of new Section 83ZE, appeals can be brought outside the 21 days. Can the Minister say whether being on operations without access to non-MoD legal advice would be good reason to bring a late appeal? If she agrees that that should be the case, will the rules of procedure of the summary appeal court reflect that?
I appreciate that the Minister has not had much time to think on the matter and that she may prefer to write to me. But it would be useful to have that reassurance.
Baroness Symons of Vernham Dean: The fair answer to the noble Earl is probably not a very helpful one. It might be a good reason. The noble Earl said that the accused will know whether or not he or she has been fairly dealt with. But that may not be the only consideration in an individual's mind about what to do next. An individual may want to take into account all kinds of other considerations, including, of course, getting the whole issue over and dealt with as quickly as possible. All of us are agreed that that will be very much in people's minds.
The noble Earl asked specifically about individuals on operations who may not be able to have access to legal advice. It may be that on some occasions that would be a good reason. We could adduce all kinds of hypothetical cases which we might think were reasonable. I shall give some thought to whether I can give the noble Earl any further help on the question in general and see whether we cannot manage to have rather more of a meeting of minds on this issue.
Earl Attlee: I am extremely grateful to the Minister for her replies to both my points. We look forward to hearing what the Minister's suggests. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 93 not moved.]
Clause 18 agreed to.
Clauses 19 to 25 agreed to.
Schedule 3 [Amendments of 1955 Acts and 1957 Act relating to summary appeal courts]:
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendment No. 94:
Page 53, line 49, leave out from ("making") to end of line 50 and insert ("elections under section 118ZA(2) of this Act and withdrawing such elections;".").
The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 95. These two minor amendments clarify the wording of paragraphs 4 and 5 of Schedule 3. The intention is for subsection (2) of Section 118ZA or Section 85A to be read as qualifying the election, not as identifying the provision under which election is withdrawn.
As currently drafted, the paragraphs could be interpreted as implying that the subsection of the service discipline Acts to which the provision refers provide for matters relating to both the making and the withdrawal of an individual's election to commence his sentence of detention immediately. I hope that the amendments will clarify the real intention of that particular part of the schedule. I beg to move.
On Question, amendment agreed to.
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendment No. 95:
Page 54, line 3, leave out from ("making") to end of line 4 and insert ("elections under section 85A(2) of this Act and withdrawing such elections;".").
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Clauses 26 and 27 agreed to.
Schedule 4 agreed to.
Clause 28 agreed to.
House resumed: Bill reported with amendments.

Christmas Adjournment
4.53 p.m.
Lord Carter: My Lords, I should like to take this opportunity to say a few words of thanks and express my gratitude to all Members of the House and others who work here. I am sure that the whole House will share my delight in the fact that we are managing to adjourn for Christmas in such good time. Our thoughts and commiserations are with our colleagues in another place as they sit into Christmas week while we are able to get on with our Christmas shopping. The way that Christmas falls this year allows us to have a full three weeks off and I hope that everyone will enjoy it very much.
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In particular, I extend my good wishes for the festive season to the staff who look after us so well. As ever, their dedication, loyalty and professionalism has been second to none. I thank them on behalf of the whole House for their help and support over the past year. I wish them all a well-deserved rest and a very merry Christmas.
I should like to say a personal word of thanks to the Opposition Chief Whip, the noble Lord, Lord Henley, and the Liberal Democrat Chief Whip, the noble Lord, Lord Harris of Greenwich, for the friendly and co-operative way in which they have, as always, helped the usual channels to flow. Sometimes the usual channels look as though they are heading for a dam and then somehow another channel is found and business proceeds.
I thank also the noble Lord, Lord Weatherill, the former Convenor of the Cross Benches, for his help and co-operation during my time as Chief Whip, and welcome the noble Lord, Lord Craig of Radley, to his new post as Convenor.
It is not every year that we adjourn in the knowledge that we shall not reconvene until the next millennium. This year has been one of great change in this House. It seems fitting that it should end not only with the arrival of a new century but at the beginning of the third millennium. The House now goes forward as a new and different House, but one in which I hope friendship and civility are at a premium. I am sure that this House, steeped as it is in history and tradition, will embrace the challenges of the new century with all its customary zeal and enthusiasm.
It only remains for me, on behalf of the Government, to wish all of your Lordships a very happy Christmas and an exciting, challenging and fulfilling New Year.
Lord Henley: My Lords, I offer my support to the Government Chief Whip's Motion that the House do now adjourn. I tender my apologies in advance for the fact that I shall not be here when the House resumes at 7.15 this evening. I doubt that any members of my Front Bench will be here to offer their support. No doubt the Government will get their business through and the Government Chief Whip will be able to persuade some of his colleagues to stay on until 7.15 to see the Consolidated Fund Bill proceed through this House.
We echo the noble Lord's words in offering our thanks to all those in this House who have done so much to keep us going over long hours in what has been a fairly extraordinary year, certainly in terms of the changes to this House. They have put in an enormous amount of hard work to make it possible for us to conduct our business. I understand that our

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hours of sitting are now the second longest of any legislative body in the world. I believe that we now sit longer than even another place on at least a third of our sitting days. But in offering our thanks to the staff we should warn them that, given the size of the Government's legislative programme, they will probably be working even longer hours in the coming year.
This has been a busy year, which has seen some fairly fundamental changes to the composition of this House. There have been some very difficult moments. I offer my thanks and congratulations to the Government Chief Whip who has done his best to calm things down and run a stable ship in fairly difficult times. We shall return in a new millennium after a happy three-week break over Christmas and new year to what I believe the Leader of the House described as a more legitimate House. We therefore look forward to a very exciting year in which we shall exercise those greatly legitimised powers. I can assure the Government Chief Whip that he will require all his charm and powers of persuasion in negotiating with us as he attempts to push through a fairly enormous government programme.
Viscount Falkland: My Lords, on behalf of my Chief Whip, we on these Benches echo the sentiments of the Government Chief Whip and the Opposition Chief Whip. In some ways this has been an exciting but difficult year. Perhaps I may pay two personal tributes. First, I believe that in every way the Government Chief Whip has behaved with extreme courtesy and sensitivity throughout the difficult changes to the composition of the House. Secondly, without wanting to appear patronising, I believe that in the noble Lord, Lord Strathclyde, we have the emergence of a leader of the Conservative Benches of real quality.
Having said that and acknowledged the service given by all those who help us in our work in this House, it has been a difficult time. I give the example of the Doorkeepers and bar staff. Over a number of years they have formed close relationships with Members of this House, many of whom have left and many of whom remain, sometimes over more than one generation. This has been a difficult time for them. Perhaps sometimes we do not appreciate how changes have affected them.
As always, each year I select with great pleasure two groups of people who need to be recognised. First, I think of Hansard whose staff, sometimes for long hours and often in difficult circumstances, report the proceedings of this House. From my own point of view, often what is reported is better than I believed it to be at the time. I congratulate them on that. I also congratulate the staff of the Library. We continue to
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be served extremely well by the Library of this House, particularly the research department which I understand is now well used by the hereditary Peers who remain. I believe that that is a heartening sign for next year.
In conclusion, as it is the season of resolutions, and I am quite good at them, perhaps I may share a resolution. Next year when using and scanning the newspapers—as I do like other noble Lords—which are supplied for us by the taxpayer, and which are carefully and well arranged by the Library staff, I resolve that on every occasion I shall seek to return those papers in a clean and folded fashion, and not leave them around the floor in pieces.
On that rather schoolmasterly note, it remains only for me to wish everyone in the House a very happy Christmas and a good new year.
5 p.m.
Lord Craig of Radley: My Lords, I thank the Chief Whip for his kind personal remarks. On behalf of the Cross-Benchers I should like to add our message of thanks and seasonal greetings to all those in the Palace who work before and behind the scenes to keep everything running for this House as smoothly and efficiently as they do. As always, it is invidious to single out individuals by name because so much is done in a spirit of teamwork and we all owe so much to everyone involved. However, perhaps on this occasion I hope that noble Lords will not think me out of order in mentioning our previous Redcoat by name.
Mr Kendrick, a former member of the Royal Marines, stood his ground at the Peers' Entrance in fair weather and foul for almost 20 years, ever cheerful and helpful to all noble Lords and their visitors. He cut a fine figure and I know was much admired. He has a fine successor in Mr Evans.
Perhaps I may also express our Cross-Bench thanks to Jill Baronti, who is leaving the Whips Office. For a long time she has been sending out the weekly Cross-Bench notices. We do not call them Whips. We wish both Mr Kendrick and Ms Baronti well.
I add my own good wishes and greetings for the festive season. I hope that all noble Lords return in good heart in the year 2000, and that no millennium bug nor horrible beastie has dared to spoil the Recess for any noble Lord.
Lord Carter: My Lords, I am extremely grateful for all the kind words spoken. As noble Lords know, we now have to await the arrival of the Consolidated Fund Bill. The procedures in another place are not as flexible as ours. I beg to move that the House do adjourn during pleasure until 7.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 5.3 to 7.15 p.m.]

Consolidated Fund Bill
Brought from the Commons, endorsed with the Certificate of the Speaker that the Bill is a Money Bill, and read a first time.
Then, Standing Order 46 having been dispensed with (pursuant to Resolution this day), Bill read a second time; Committee negatived; Bill read a third time, and passed.
Lord Bach: My Lords, I beg to move that the House do now adjourn during pleasure for 10 minutes.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.18 to 7.28 p.m.]

Royal Assent
The Deputy Speaker (Lord McIntosh of Haringey): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Act:
Consolidated Fund (No. 2) Act.
House adjourned for the Christmas Recess at twenty-nine minutes past seven o'clock until Monday 10th January next.