Armed Forces Discipline Bill [H.L.]

HL Deb 16 December 1999 vol 608 cc339-87

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 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 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 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 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 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 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 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 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"). 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 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 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 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 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 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 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 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 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 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 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.

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 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 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 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 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.

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 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 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 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 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.

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.

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 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 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 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.

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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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. 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 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 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, 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 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 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 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.