Armed Forces Discipline Bill [H.L.]

HL Deb 18 January 2000 vol 608 cc978-1019

3.4 p.m.

Report received

Lord Campbell of Alloway moved Amendment No. 1: Before Clause 1, insert the following new clause—

("Armed Forces (Human Rights) Court

RESOLUTION OF CONVENTION RIGHTS UNDER THE SERVICES DISCIPLINE ACTS

.—(1) An Armed Forces (Human Rights) Court designated by rules in accordance with section 7 of the Human Rights Act 1998 shall be established to adjudicate on questions relating to the application of the European Convention on Human Rights to the provisions of the Service Discipline Acts raised on appeal from the decisions of Courts Martial or the Courts Martial Appeal Court.

(2) An appeal may only proceed with leave of the Court granted on the grounds that it is arguable that the decision was in breach of Convention as represented in the Notice of Appeal.

(3) The Court having heard the appeal may either affirm or set aside the decision (or remit the case for further consideration), and make such order as to costs as may be deemed to be just and appropriate.

(4) New evidence may not be adduced at the hearing (whether oral or on affidavit) unless in the opinion of the Court the demands of justice so require.

(5) The Court shall be convened by the Secretary of State as and when it is expedient in his opinion to attend to business.

(6) The composition of the Court shall consist of 2 or 4 members of the Armed Forces appointed by the Secretary of State sitting with a senior member of the judiciary as President appointed by the Lord Chancellor.

(7) Arrangements to give effect to subsection (6) are to be made in consultation between the Lord Chancellor and the Secretary of State.

(8) The question arising for determination of the Court under the provisions of this Act may not be raised on an application for judicial review unless leave of the Court was refused by the Court.

(9) In this section "the Service Discipline Acts" means the Army Act 1955, the Air Force Act 1955, and the Naval Discipline Act 1957.").

The noble Lord said: My Lords, Amendment No. 1 proposes the setting up of a designated military appellate court solely concerned with the determination of convention issues arising in the course of the disciplinary process under the service discipline Acts on appeal from courts martial or courts martial appeals court in order to ensure compatibility with the convention.

The amendment is drafted on the assumption that Clause 11 and Clauses 14 to 25 do not stand part at Third Reading. If they were to stand part, subsection (1) of the amendment could be easily redrafted to include the summary appeals court. Consequential amendments to the Bill would be of no material significance.

The fundamental question arising for your Lordships' consideration is whether such convention issues should be resolved by a military court with relevant specialist expertise of the highest order or as part and parcel of the general appellate jurisdiction as proposed by the Government.

The strength of the case for the amendment could well be fortified by other questions arising which interact, irrespective of whether a summary appeals court were to be set up, as to which Clause 11 holds the key. The following questions arise. Could the service discipline Acts, as such, be struck down as incompatible with Articles 5 or 6 of the convention? Is the advice tendered by government to such effect as justifying this Bill as requisite to comply with the convention well founded? As no specific breach of any article of the convention under the extant disciplinary process has been asserted by government and none has been identified, is it either profitable or indeed possible to anticipate compatibility as proposed by the Bill?

Is it not appropriate to seek to amend the service discipline Acts to deal with identified putative breaches as proposed in Amendments Nos. 8 to 14? Is the reason given in the MoD letter received by me yesterday for the Government's change of mind not to set up such a court as is proposed by the amendment, that there would be insufficient calls on such a court to merit its establishment, well conceived? Does the Government's assertion that the summary appeal court and the courts martial appeal court should deal with convention issues as they arise afford a satisfactory means of resolution? Lastly, is Clause 11, which triggers the setting up of the summary appeals court, workable in practice, in particular on active service on armed operations short of war? Would it inhibit the maintenance of good order and discipline or is it requisite under the extant regime where the commanding officer informs the accused that the charge has been proven and there is a right to elect trial by court martial? That is a procedure which no one in the services to whom I have spoken considers to be unfair or discriminatory in any way. Such are the broad parameters of this debate.

As to the justification for setting up an armed forces (human rights) court, as proposed by the amendment, the main objection in the MoD letter received yesterday is met. This court would only be convened ad hoc; "as and when" the occasion arises; it would be wholly cost-effective. The court would be constituted by the Lord Chancellor and the Secretary of State in consultation, the appointment of a senior member of the judiciary having relevant expertise of the highest order to preside, sitting with two or four duly appointed members of the Armed Forces.

As there is no binding system of judicial precedent and as the articles of the convention are to be interpreted with flexibility on a case-by-case basis, the form of judicial resolution proposed by Amendment No. 1 is surely to be preferred. Would either a commanding officer or the summary appeal court, as constituted under Clause 17, have the requisite expertise to determine compatibility? Interpretation of the articles in the light of a mass of evolving jurisprudence assuredly warrants the attention of a senior member of the judiciary with the relevant knowledge and expertise, as proposed by subsection (6) of the amendment.

The court as constituted would afford the most appropriate and effective forum for the determination of these convention issues. Convention rights are to be acknowledged and applied at all stages of the disciplinary process. But before resort may be had to the Commission or the ECHR, domestic procedures must be exhausted. Subsection (8) preserves the supervisory jurisdiction of the High Court only if leave to appeal was refused under subsection (2) (the sifting mechanism).

Under the extant regime there is the election of trial by court martial (if the case is proven) from which an appeal on a convention issue would lie to the court proposed by Amendment No. 1. Under the Bill, as proposed, the supervisory jurisdiction of the High Court could be invoked at any stage of the disciplinary process.

Amendment No. 1 derives originally from a proposal of the noble and learned Lord the Lord Chancellor at Third Reading of the Human Rights Bill when opposing my amendment to remove the Armed Forces from the fast-track procedure as inhibiting the due discharge of the summary disciplinary process to maintain good order and discipline. The noble and learned Lord took the point and acknowledged that such process—the disciplinary process—bore scant kinship with the exercise of summary jurisdiction in our civil or criminal courts. He proposed that appeals on convention issues would lie to the courts martial appeal court and be resolved there.

In a letter addressed to me dated 10th March from the noble Lord, Lord Gilbert, at the MoD, reference was made to a proposal for a designated military court to determine issues solely relating to convention rights, such as is proposed by this amendment. By courtesy of the noble Baroness, Lady Symons of Vernham Dean, copies of all relevant correspondence with the MoD have been made available in the Library of your Lordships' House, and the House is grateful. The letter from the noble Lord, Lord Gilbert, ended, Such a Court as you mentioned would be designated by rules in accordance with c a use 7 of the Human Rights Bill; the rule would be agreed in the period between the Bill receiving assent and its coming into force. I do not think you need to worry therefore about this option being foreclosed if we do not take an immediate view on this proposal. We have enough time to reach a fully considered decision".

Accepting that assurance, I was wholly content and did not worry until I saw this Bill. The position as stated in the letter of 10th March was that the proposal of the designated military court, for which I am contending, was accepted and should not be foreclosed upon; but that rules as to implementation of that proposal were under consideration. It is not known why that proposal should have been rejected by another letter from the noble Lord, Lord Gilbert, to the noble and gallant Lord, Lord Craig of Radley, on 9th June in favour of referring convention issues arising in the disciplinary process to the civil courts for determination. That letter is not so readily intelligible.

It is not known why the proposals in that letter should have been rejected. Perhaps—one does not know—some ministerial task force has been at work. If so, your Lordships may wish to examine its instructions and its findings. Perhaps as a result of a series of internal departmental consultations (which included the MoD, the Home Office, the Lord Chancellor's Department and the Foreign and Commonwealth Office) the Government changed direction more than once, became disorientated and eventually lost their way, not only on instructions to prepare for this Bill, but also on the advice tendered to the Chiefs of Staff and the noble and gallant Lords who took part in the debate on the Bill.

The service discipline Acts apply in a variety of circumstances—in times of peace, in times of war, on armed operations, and on active service short of war, on which now around half of our Armed Forces are engaged. As drafted, Articles 5 and 6 of the convention do not expressly apply to the disciplinary process of the Armed Forces. The House was informed on a previous occasion by my noble friend Lord Renton—who is present and who was involved in the early stages with setting up the constitution for the court—that, as far as he remembers, there was no intention that this Bill should apply to the Armed Forces. Indeed, as your Lordships know, France opted out without any ado.

As regards adopting the continental approach to interpretation, if the ECHR were to decide that Articles 5 and 6, as such, applied to the disciplinary process, the text would suffer very substantial erosion and limitation upon the rights and obligations conferred on civilians. A flexible approach should be adopted. On the facts and circumstances of any particular case, the doctrine of "proportionality" would be applied, in particular on active service short of war. This convention does not require any signatory state to enact legislation, such as proposed by this Bill, which would inhibit the maintenance of good order and discipline in its armed forces. Most signatory states possess armed forces with disparate disciplinary processes. Amendment No. 16A, which is tabled in the name of my noble friend Lord Renton, is well conceived.

Compliance with Articles 5 and 6 only requires that the disciplinary process should be fair and conducted under fair procedures without discrimination. No one can foresee or pre-empt the range of circumstances in which these articles could apply as regards compatibility of a disciplinary process with the convention. The facts and circumstances of any particular case mean that a collateral convention issue could well arise, such as, for example, under Article 8, especially in peacetime circumstances.

Assuredly the convention does not require amendment to the service discipline Acts or the setting up of a summary appeal court, as proposed by the Bill. It is wholly implicit that convention rights and obligations imposed on civilians should stiffer substantial erosion and limitation. The extent of such limitation has not, as yet, been examined by the Commission or the Court. The Court would not strike down the service discipline Acts as such and the means of seeking compatibility, as proposed by this amendment, is commended to your Lordships. I beg to move and, in doing so, I apologise to the House for the time that I have taken.

Lord Carver

My Lords, in explaining his amendment the noble Lord, Lord Campbell of Alloway, mentioned that he is assuming that Clauses 11 and 14 to 25 will not form part of the Bill. He also mentioned the question that was raised in Committee and on Second Reading about the applicability of the Bill in terms of active service. Your Lordships will remember that in Committee I proposed that Clauses 11 and 14 to 25 should not stand part of the Bill. Therefore, it is appropriate that I should explain at this stage why I have not tabled any such amendment on Report.

During the Christmas Recess I took legal advice, as I hope the Minister did. I took such advice from sources that are far more familiar than I am with the goings-on at the European Court of Human Rights. That advice was very clearly that if the existing arrangements for the Army and Air Force Acts over election for trial by court martial at the end of summary proceedings rather than at the beginning were to remain, we would almost certainly lose the case at the European Court, even if we did not lose it in a court in this country. However, more importantly, in the course of that being considered by the European Court, the danger is that the whole issue of whether summary proceedings were themselves in conformity with the convention on human rights might be brought into question. That would be extremely dangerous; indeed, far more dangerous than just bringing the election of trial by court martial to the beginning instead of the end of summary proceedings.

The latter argument has certainly convinced me and it is the one which, I believe, has convinced the senior officers in the Ministry of Defence, as claimed by the Minister in Committee. I accept that they have been converted to full support of this Bill. I should not like to guess exactly when they were converted, but they have been converted.

I am not quite sure of the extent to which the amendment of the noble Lord, Lord Campbell, is dependent on Clauses 11 and 14 to 25 staying in the Bill. However, I should like to make it clear now that I assume that they will stand part of the Bill, and that I do not oppose them standing part of the Bill. As to the operation of the whole system, particularly the clauses before Clause 11, in times of active service and high intensity warfare—I certainly still agree that it could not be made to work in those circumstances—I accept that there need not be anything in the Bill to cover that situation. I believe that a precedent already exists in the derogation that the British Government made over the civil courts in Northern Ireland, which is fully explained in Schedule 3 to the Human Rights Act, and that that would be the way to deal with the issue.

However, I am not sure in my mind because I have other worries about the amendment of the noble Lord, Lord Campbell of Alloway, as regards its relation to other courts. If the amendment is dependent on Clauses II and 14 to 25 not remaining part of the Bill, I should make it clear that I am assuming that they will remain part of the Bill.

Lord Renton

My Lords, I suggest that what the noble and gallant Lord, Lord Carver, has said makes it clear that there is a serious confusion which could cause trouble in the administration of law within the Armed Forces. That confusion is caused by our obligations under the European Convention on Human Rights and is to a great extent confirmed by the Human Rights Act of last year and by this Bill. It is right that an attempt should be made to reconcile those confusions. For that reason, I think that what my noble friend Lord Campbell of Alloway has proposed with his new clause must be regarded as a valiant attempt to reconcile these problems.

As my noble friend mentioned, I tried to resolve the problem in Committee in a rather short and simple way. However, the noble Baroness, on behalf of the Government, would not accept my amendment. I have tabled the amendment again, although it appears starred on the Marshall List for a strange reason that I may mention when the time comes to deal with it. I believe that the Government really must seriously consider the confusion that can and will arise on many occasions in the three Armed Forces, unless we try to find a way of reconciling the conflicting problems.

My noble friend has made a splendid attempt in this respect. Of course, one could amend his proposed new clause in various minor ways. However, I think that the Government should, in principle, say that they realise there is this confusion and that it must be resolved somehow. I should have thought that the right thing for the Government to do is to say that they will accept the new clause, realising that they have power to amend it either on Third Reading or when the Bill goes to another place.

Before I conclude I hope that I may mention what my noble friend Lord Campbell said about the part that I played half a century ago when I was one of the representatives—I was a Back-Bench Member in another place—attending the Council of Europe. I went there in 1951 and 1952. By the time I got there in 1951 the European Convention on Human Rights had already been approved. My recollection is—I remember looking up the discussion which had taken place before I got there—that the purpose of the convention was to protect the people of Europe from further instances of the kind of terrorism and horror which had prevailed during the Second World War and which many thought would continue afterwards.

In that context I do not think that there was any attempt to consider and to reconcile the effect of that convention on discipline within the Armed Forces of the European countries. It is rather strange that the conflict could only have arisen almost half a century later. But it has arisen and we have a duty to try to reconcile it. It is for those reasons that I suggest that the Government should apply their minds seriously to this matter and if they do not accept the amendment of my noble friend find a way of their own. However, a good step towards doing so would be to accept his amendment and, if necessary, amend it later.

3.30 p.m.

Lord Lester of Herne Hill

My Lords, I have not taken part in the previous debates on this Bill but I have carefully studied the Hansard reports. My military qualifications for taking part are rather meagre. During the Suez war I had the privilege of performing national service in the Royal Artillery first as a field gunner and later as a second lieutenant working with but not of the First Brigade of Guards, based in Kent. I suppose that I was on active service in the sense that we were at 24 hours' notice to embark for Egypt, but perhaps happily for others we never left our barracks in Shorncliffe. As a teenage subaltern I assisted in one court martial and on occasion I had to enforce discipline, including briefly depriving offending gunners of their liberty. That experience scarcely qualifies me as an expert on military law and discipline but it convinced me that the regime for dealing with disciplinary offences was archaic and unfair.

A better reason for venturing into this debate in the presence of so many noble and gallant Lords, including the noble and gallant Lord, Lord Carver, with whose legal advice I respectfully agree, is my knowledge and experience of the human rights convention and its case law. The Minister has made a statement under Section 19 of the Human Rights Act 1998 of her view that the Bill is compatible with the convention rights. It is unfortunate that the Government have not sought to set up the long-promised Joint Select Committee on human rights because I have no doubt that such an expert committee would agree with the Minister's view. In the absence of such a committee I shall do my best to explain, as an unworthy substitute, why I believe the Bill to be compatible with convention rights, why I think that it is appropriate and necessary and why I believe that the amendment proposed by the noble Lord, Lord Campbell of Alloway, is inappropriate and unnecessary. I shall also try to explain why the recollections of the noble Lord, Lord Renton, are not totally accurate—there is no reason that he would know this—as regards what went on in the Cabinet before we decided to ratify the convention in 1950.

The Bill secures the convention right to liberty, guaranteed by Article 5, the right to a fair trial by an independent and impartial tribunal, guaranteed by Article 6, and the right to the enjoyment of these convention rights without discrimination, as guaranteed by Article 14. Without this legislation—this Bill—there would be a serious risk that when the Human Rights Act 1998 is in force next October Ministers and senior officers of the Armed Forces would be vulnerable to legal challenge under the existing legislation, with collateral damage to morale, good order and military discipline. The Bill sensibly diminishes that risk—it cannot be eliminated altogether—and the Government are to be commended for introducing a measure to bring our statute book and practice fully into line with convention standards.

When the Human Rights Act is in force British courts will have not the power but the duty of construing legislation where possible compatibly with the convention rights, applying the well-known principles of legality, fairness and proportionality developed by European and Commonwealth courts. Our courts will do so more rigorously than does the European Court of Human Rights as an international court because that is what Parliament has decided that they should do by enacting the Human Rights Act. With effect from next October all public authorities, including Ministers, government departments and officers of the Armed Forces performing functions of a public nature, including disciplinary functions, will be liable for any failure to comply with convention rights in the way they per Form those functions. Therefore the Government are acting in the interests of commanding officers and in the interests of service personnel as well as in the wider public interest in introducing a system which will protect convention rights and avoid unnecessary litigation by lawyers such as myself.

In my view the Bill achieves a fair balance between two vital public interests: the public interest in creating a framework of discipline to be applied effectively to the three Armed Forces wherever in the world they are based in peacetime and in times of conflict; and the public interest in ensuring that the civil rights of service men and women are effectively protected against any abuse of essential disciplinary powers. I am fortified in my opinion by the fact that the Chiefs of Staff have been fully consulted on the changes and endorse the need for them.

Critics of the Bill in this House have made much of the fact that when France ratified the convention in May 1974 it ma de a reservation in respect of the Armed Forces. So, more recently, has Turkey. The French reservation was not open-ended. It was specifically linked 10 the effect of Articles 5 and 6 of the convention on Section 27 of Act No. 72–662 of 13th July 1972 governing the system of discipline in the French armed forces and to the provisions of Article 375 of the French code of military justice. I am not an expert on French law and I cannot inform the House of the scope of those provisions, nor whether their compatibility with convention rights has been challenged. What I can say is that the European Court of Human Rights would interpret the French Government's reservation narrowly to ensure that it did not in any way undermine the very substance of the convention rights to liberty and to a fair trial without discrimination. Opponents of the Bill would be most unwise to draw support from the French Government's reservation, which does not in any event apply to the UK or to any other contracting state. Turkey's reservation has been circumvented by the European Court in the case of Loizidou for slightly different reasons.

Departing for a moment from this theme, as regards the Attlee government of 1949 to 1950 and the first Wilson government in 1965, having read the debates. I read again overnight the Cabinet papers which recorded what happened before we ratified the convention and before we decided to accept the right of individual petition. The then Lord Chancellor, Lord Jowitt, was concerned that ratification would be incompatible with the visiting forces Act in relation to American forces in Britain and the absence of any right to habeas corpus. That was the only issue with regard to military law which troubled the government in 1949 to 1950. Similarly, when the Wilson government decided to accept the right of petition—although by that time it was perfectly clear from the text of the convention and from case law that it applied to the Armed Forces—the Ministry of Defence and other government departments found no difficulty so far as concerned the absence of a reservation.

Coming more to the present, pre-trial custody involves an interference with right to liberty for which there must, under the convention, be adequate safeguards against abuse. The Bill provides for adequate internal and external safeguards in three ways: by requiring the commanding officer to review the need for continuing custody; by requiring the commanding officer to apply the criteria prescribed by the Police and Criminal Evidence Act; and by requiring a judicial officer to approve continuing custody in excess of 48 hours. I believe that these changes are necessary to secure full compliance with Article 5, including adequate safeguards against possible abuses of discretionary powers. The fact that the judicial officer will normally be a judge advocate or a naval judge advocate, who exercises independent judicial functions in courts martial, ensures the necessary safeguards of independence and impartiality as well as the necessary expertise.

The changes made to the procedures for summary discipline are also, in my opinion, needed to secure full compliance with Articles 5, 6 and 14, by giving a right of appeal from summary hearings and by establishing a summary appeal court, consisting of a judge advocate and two independent officers, generally from the appellant's service, with public hearings and a limitation on sentencing powers to ensure fairness and proportionality.

The amendment of the noble Lord, Lord Campbell of Alloway, would, as we have heard, create an Armed Forces human rights court consisting of between two and four members of the Armed Forces, appointed by the Secretary of State, sitting with a senior member of the judiciary as president, appointed by the Lord Chancellor. The court would deal with appeals from decisions of courts martial or the courts martial appeals court on questions relating to the application of the convention, and would be convened by the Secretary of State as and when it was expedient, in his opinion, to attend to business.

There are several objections to the amendment. First, it is unnecessary because courts martial and summary appeal courts will be obliged, under the Human Rights Act and under the Bill, to interpret and apply the law compatibly with convention rights, as will every other court and tribunal in the land. There is no need to add a further tier of statutory appellate jurisdiction.

Secondly, the requirement that the president of the proposed court must be a senior member of the judiciary would impose a considerable and unnecessary additional burden on the already overburdened senior judiciary.

Thirdly, there is nothing to be gained by the amendment in terms of the composition or expertise of the appellate court. Clause 15 of the Bill provides for judge advocates, who must be of at least five years' standing as qualified lawyers, to be appointed by the Judge Advocate General and the Chief Naval Judge Advocate. Clause 16 provides that officers will be qualified for membership of the summary appeal court if they are commissioned military officers in any of Her Majesty's naval, military or air forces with not less than two years' service. Clause 21 provides for the case stated procedure to the High Court on the ground that the summary appeal court's judgment is wrong in law or in excess of its jurisdiction. The respondent to the appeal could presumably challenge the decision by way of judicial review in the High Court, although that is a matter that the Minister may wish to clarify. Obviously it is important that respondents as well as appellants should have some means of access to the most senior courts.

Fourthly, under the amendment it would be left to the Secretary of State to decide when to convene the proposed human rights court. It is difficult to understand why the Minister should decide that question. The Bill is more flexible and practical, enabling the summary appeal court for each service to sit in two or more divisions, enabling a number of courts to sit in different places to hear different cases at the same time, as the interests of justice require.

I regret that I cannot be present throughout the whole of the debate on the Bill—I have to chair a meeting elsewhere—but I hope it is clear from what I have said that I regard the opposition to the Bill as misconceived and contrary to the best interests of the Ministry of Defence and the Armed Forces, officers and service personnel. If I may say so, nothing has been more debilitating to service morale than the completely unnecessary litigation against the Ministry of Defence, involving sex discrimination against pregnant women and others, race discrimination and sexual orientation discrimination. The reason I call it "unnecessary litigation" is that it must have been plain to everyone that all such litigation was bound to lead to defeat for the Ministry of Defence, at enormous expense to the taxpayer and to the morale of people in both the ministry and the Armed Forces. The Government surely are sensible in seeking to avoid further unnecessary litigation by creating a fair, rational and practical new statutory framework.

3.45 p.m.

Lord Craig of Radley

My Lords, I have listened with great interest to the noble Lord, Lord Lester of Herne Hill. I hope that he will accept—certainly in my case and, I believe, in that of others—that those of us who have been tabling amendments to the Bill are not against the principle of human rights applying to the Armed Forces. We are seeking to test whether the solution that the Ministry of Defence has come up with in the Bill is the best solution from the service discipline point of view. The wise words of the noble Lord, Lord Renton, and the amendment that we are now discussing, have been very helpful in testing whether the solution brought forward by the Minister is the very best one possible. I hope that the House will approach the matter in that way and not by way of assuming that we are trying in some way to disown the obligations of the Ministry of Defence under the Human Rights Act.

When the Human Rights Bill was passing through the House I tried very hard to obtain some arrangement which would minimise the impact of the human rights legislation so far as it concerned forces discipline. I failed in that, but I am very pleased that the matter has come forward in this form. I very much look forward to what the Minister has to say in response to the amendment.

Lord Lester of Herne Hill

My Lords, I agree with the noble and gallant Lord. We all agree about the common objectives; the question is one of means. It is quite clear from Article 11(2) that the convention applies to the Armed Forces. We agree about that.

Lord Campbell of Alloway

My Lords, is this not Report stage? We do not have points of order, but we do not have more than one speech. The noble Lord perhaps has not been here long enough to realise that.

Lord Bramall

My Lords, I, too, should hate to see the amendment of the noble Lord, Lord Campbell of Alloway, dismissed like that. It is an extremely helpful amendment.

Like my noble and gallant friend Lord Carver, I do not want to make it more difficult for the Chiefs of Staff than it is already. There is no question that, however necessary the Bill proves to be, it will be highly unsatisfactory in practice in many ways for the commanding officer and for the administration of justice, particularly on active service. I do not want to go over all the arguments again but I do want to ask the Minister one question: in view of the detailed legal arguments that the House has just heard from the noble Lord, Lord Campbell of Alloway, and in view of the very important observation made by the noble Lord, Lord Renton, can the noble Baroness put her hand on her heart and say that she has gone back to the legal advisers of the Ministry of Defence and asked them whether they must be quite as inhibiting as they have proved to be?

It has been suggested that some of these contrivances are not really necessary. We want to know that the Ministry of Defence is looking for some way of perhaps reconciling these two opposing issues. I know that the Chiefs of Staff are in a very difficult position; they certainly do not want to expose the various military procedures or in any way lose the powers of a sum nary court. But undoubtedly there will be problems. As has been said many times, the Bill will slow and confuse the administration of justice; it will undermine the authority of the commanding officer; it will be extremely difficult to administer, particularly on active service; and it will greatly add to the workload of the commanding officer and the various staffs involved at a time when they are already extremely stretched. One certainly does not want to do more than is absolutely necessary. I should like an assurance from the noble Baroness that she has looked at this matter again in a questioning manner and asked whether more could be done to rationalise these different points of view.

Lord Kingsland

My Lords, at Third Reading of the Human Rights Bill on 5th February 1998, the noble and learned Lord the Lord Chancellor said: I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces. I have given an indication about willingness to consider designating military courts as the appropriate forum for the consideration of complaints on convention grounds by Armed Forces personnel. On that basis I invite the noble Lord to withdraw his amendment".—[Official Report, 5/2/98; col. 768.] At the time the amendment in question was that of my noble friend Lord Campbell of Alloway. Will the noble Baroness look again at the amendment tabled today by my noble friend in the light of that statement by the noble and learned Lord the Lord Chancellor? Furthermore, can she tell your Lordships' House in what way the amendment of my noble friend differs from the aspirations of the noble and learned Lord the Lord Chancellor?

I listened to the speech of the noble and gallant Lord, Lord Bramall, with great interest. It seems that we can fix ourselves somewhere on the spectrum between the minimum necessary to be compatible with the human rights convention and the maximum possible. I agree with the noble and gallant Lord; I shall be interested to hear from the Minister where she believes us to be on that spectrum.

Having listened to the noble and gallant Lord, Lord Carver, in Committee, I thought that his amendments to Clause 11 and Clauses 14 onwards were absolutely spot-on—to have the appeal to a court martial after the summary decision but before sentencing arid to remove entirely the appeal from summary sentence. I submit to your Lordships that that ought to meet the requirements of the convention. It would also remove enormous difficulties for commanding officers. Above all, it would allow the commanding officer to retain that authority in peacetime which we know is so necessary to him if he must go to war.

In supporting the noble and gallant Lord, Lord Bramall, I urge the Minister to think carefully about whether she can take an initiative of some kind to remove both options so that the provision of one option would satisfy the criteria laid down by the convention.

Lord Vivian

My Lords, I should like to apologise to the House for not being present at the Committee stage of the Bill. Unfortunately I was ill. I am not a lawyer. Rather, I am speaking to the amendment as a former commanding officer.

I wonder whether this amendment. which would establish an Armed Forces human rights court, might add yet another level of bureaucracy, cause more expense and possibly extend the time for dealing with disciplinary offences when perhaps the existing military courts would be able to deal with them. During the past week I have read the reports of the Second Reading and the Committee stage, the revised Bill and the Explanatory Notes in considerable detail. I constantly put myself in the position of a commanding officer and, for that matter, the adjutant who is responsible for the staff work of dealing with court martial papers.

With all due respect to my noble friend Lord Campbell of Alloway, who has worked so hard on the Bill, I am not sure whether an Armed Forces human rights court would simplify the proposed systems in the Bill. A commanding officer will be able to deal summarily with military offences provided that summary appeals courts are established. That would then make summary dealings comply with the European Court of Human Rights. I may have missed the point here, but it seems to me that, although this may not be entirely satisfactory, the aim to ensure that the commanding officer retains his authority to deal summarily with military offences has been achieved. However, this will allow an accused to appeal against finding and sentence which, as many noble Lords have pointed out at various stages, might undermine a commanding officer's authority. However, an accused has always had the right to submit for redress of grievance and this has not undermined the authority of the commanding officer.

I do not believe that there is a better way than that proposed in the Bill to make trial by the commanding officer compliant with the European Court of Human Rights, or a better way to protect the rights of summary dealings. I do not believe that the staff work will be dramatically increased because the commanding officer will deal with the deputy judge advocate general's department in a similar manner to the way he now deals with the Directorate of Army Legal Services. In other words, the Directorate of Army Legal Services will release some responsibilities which the deputy judge advocate general and judicial officers will then take on.

If I was a commanding officer, I would willingly accept the proposals in the Bill to ensure that disciplinary offences could still be dealt with by the commanding officer as opposed, perhaps, to having them dealt with in the magistrates' court, which would be utterly disastrous.

Lord Burnham

My Lords, my noble friend Lord Campbell of Alloway has a habit, which he has used effectively on a number of occasions, of moving amendments to appear before Clause 1. This enables him to get in first and to generate a full-blooded debate, not only on his own amendment, but on the Bill as a whole. It is therefore his fault that we have had the benefit of a full-scale Second Reading speech from the noble Lord, Lord Lester, who, with his great knowledge and wisdom as a lawyer, has added to that a full-blooded Committee stage contribution.

The noble and gallant Lord, Lord Carver, has raised the important point as to the position, if this amendment is accepted, regarding the opposition in Committee by the noble Lord, Lord Chalfont, and a number of other noble Lords to the Question. That Clauses 11 and 14 to 25 should stand part of the Bill.

At an earlier stage in the debate the Minister said that one of the purposes of the Bill before us is to demonstrate that life has moved on since the introduction in 1951 of the European Convention of Human Rights, or indeed the original date of the existing Army Act 1955. However, with respect to the noble Baroness the Minister, I suggest that 95 per cent of the purpose of the Bill is to ensure compliance with the Human Rights Act and the European Convention on Human Rights. Throughout the discussions on the amendments moved by my noble friends and others runs the theme that we wish to ask the Government: does this amendment ensure that the Bill is compliant with the Human Rights Act and is it necessary for that Act? In that context, we shall be moving Amendment No. 23, which is an amendment to the Title of the Bill. However, we are now discussing the amendment of my noble friend Lord Campbell of Alloway, which seems, in spite of what may be said by my noble and gallant friend Lord Vivian, to simplify an appeals stage of the court martial procedure. It is in itself not the easiest amendment, but, with respect to the noble and gallant Lord, Lord Carver, it enables us to remove all these other clauses.

I am delighted to have the support of my noble friend Lord Kingsland, another noble Lord who has immense legal knowledge, whose views I trust implicitly. He and the noble Lord, Lord Campbell, have referred to the remarks of the noble and learned Lord the Lord Chancellor on what is now the Human Rights Act. What the noble and learned Lord said at that time gave absolute assurance that what we had was very nearly, though not quite, what we needed. However, the noble Lord, Lord Campbell of Alloway, has moved his amendment. It is an excellent amendment. I hope that the House will accept it.

4 p.m.

The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean)

My Lords, the amendment proposed by the noble Lord, Lord Campbell of Alloway, revisits an issue that first emerged in your Lordships' House during the consideration of the then Human Rights Bill and has since been raised at the Committee stage of this Bill. I am grateful to the noble Lord for the way in which he has argued his case about his specific amendment and also for the opportunity he has afforded the House for a rather wider-ranging exchange.

At the Committee stage we established that the desire for this amendment arose from the debate on the Human Rights Bill in which 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. At the Committee stage I advised the House that the Ministry of Defence had given the proposition very careful thought, but in the end had decided against it for the reasons I then stated. I wish to make it clear that when I speak of the Ministry of Defence I am, as with all the other issues concerning the Bill, talking about a process of consultation with the services. Since the noble Lord tabled his amendment, I have of course sought further advice. I have, as the noble Lord, Lord Renton, put it, applied my mind. In the present case, the staffs of all three services were clear that, after careful consideration of the matter, they saw no justification for setting up, training and staffing such a court.

However, I should say that the proposition that they were focusing on concerned the possibility of convention points arising in isolation from disciplinary proceedings. This amendment, on the other hand, is concerned with convention points arising in the course of disciplinary proceedings. I think it is important to be clear about that distinction.

We do not consider there to be an issue where convention points arise in the course of proceedings. They can be raised in an accused's defence. If the accused is not content with the outcome of the hearing or trial, he or she has a right of appeal to a court which can deal with any convention points raised in the appeal. These appeal courts are within the service system—either the summary appeal court or the courts martial appeal court. In this respect, I believe that they satisfy the noble Lord's concern that service courts should deal with this kind of convention point.

As the noble Lord, Lord Lester of Herne Hill, said, we certainly do not need a new court even further up the hierarchy of service courts to deal with convention points alone. If an accused wishes to appeal from the decision of the courts martial appeal court on a convention point or any other point, he or she would be able to seek leave to appeal to this House in its judicial capacity. I have every confidence that the House would be fully capable of understanding any service factors that were relevant to the case, and we should of course appoint experienced lawyers to represent the service interest.

I mentioned that the services have examined the possible case for a designated military court to deal with convention points arising in isolation from disciplinary proceedings. Quite frankly, the services did not think that there would be enough business to justify its establishment. There is confidence that there will be very few convention points arising solely in isolation in the service environment. That expectation is not borne of complacency, but because it seems likely that most convention points which do not arise in the course of disciplinary proceedings will nevertheless be attached to another cause of action. For those that do arise in isolation, we still consider that the High Court would be the most appropriate place to deal with them. Again, we would make sure that the service interest was not overlooked by these courts, since we would be properly and appropriately represented.

I have to applaud the persistence of the noble Lord in his pursuit of the cause of creating new courts to deal with convention points in the services. I genuinely believe that there is no difference between the noble Lord's concern and our concern to get the right answers to the questions. However, we are quite firm in our view that there really is no need for such courts. All the various types of cases can be dealt with perfectly adequately elsewhere.

Moreover, we do not want to incur the expense involved in creating new courts for this purpose. Even an ad hoc court as described by the noble Lord—he said that it would be used as and when needed—would use resources better deployed elsewhere and, more importantly, would not gain the depth of experience necessary to do justice to the claims, experience which is readily available in the civilian judicial system.

The noble and gallant Lord, Lord Carver, explained why he will not pursue the amendments which he moved at the Committee stage. I am grateful to the noble and gallant Lord for his explanation and, if I may say so, not a little relieved that the advice he has received is so very similar to the advice I myself received.

I thank the noble Lord, Lord Lester of Herne Hill, for his intervention. His expertise on the European convention is among the best available in this country and is well known in your Lordships' House. I am sure that the lawyers in government service who have advised me, as well as those who have advised the noble and gallant Lord, Lord Carver, will be relieved in that regard.

The noble and. gallant Lord asked about the derogation that is used in Schedule 3 to the Human Rights Act. The derogation in Schedule 3 is a real example of the use of a derogation under Article 15 of the convention. It is a derogation from the convention in order for Her Majesty's Government to rely upon the provisions of the Prevention of Terrorism Act. The reason for the derogation is that the situation in Northern Ireland might be such that it is in our view a public emergency threatening the life of the nation—to use the words of Article 15 of the convention itself. The noble and gallant Lord asked whether such a derogation can be used in times of armed conflict. The answer to his question is yes—if the armed conflict is a public emergency threatening the life of the nation.

The noble and gallant Lord, Lord Craig of Radley, made clear that his misgivings about the Bill, which he expressed cogently in Committee, were not because of a lack of concern about human and civil rights in the armed services. I, and I am sure all other noble Lords, accept that absolutely clearly, but I hope that what I am saying does to a certain extent help to satisfy some of his worries.

The noble and gallant Lord, Lord Bramall, asked me point blank whether I could say "hand on heart"— I believe those were his words—that I had been back to legal advisers. Yes, I can, hand on heart. I have discussed possible alternatives with legal advisers and with officials. I assure the noble and gallant Lord that I have looked at possible amendments in the way I undertook to the House I would. The advice I received was that we have the best possible formulation in front of us now, certainly the best that we in the Ministry of Defence have been able to come up with.

Lord Renton

My Lords, I am grateful to the noble Baroness for giving way. Does the advice she was given provide guidance as to what happens when the appeal court, which she mentioned and which arises under the Bill, finds that there is a conflict between the needs of military discipline and the application of human rights?

Baroness Symons of Vernham Dean

My Lords, I assume that the noble Lord means the summary appeal courts. The appeal courts would have to take into account the balance of arguments. I do not believe we are in a position to give advice to appeal courts in that way. The advice we would be giving is advice to commanding officers about what they must take into consideration. If there is anything further that I can say, it will be in advice that we shall put out. We hope to be able to move forward as quickly as possible on giving such advice, which is why I feel that the most expeditious conclusion to this will be best for everyone in the Armed Forces. If there are any further written points that I can give to the noble Lord, Lord Renton, I undertake to do so.

I say to the noble Lord, Lord Kingsland, that nothing we are doing now is contrary to what my noble and learned friend the Lord Chancellor said in consideration of the 1998 Act. As the noble Lord reminded us, my noble and learned friend spoke of a willingness to consider military courts. We have considered them but feel that the mechanisms we need are there in the way that I described in my opening remarks to your Lordships on the amendment in the name of the noble Lord, Lord Campbell of Alloway.

Finally, the noble Lord, Lord Burnham, said, a trifle teasingly I thought, that I made the point that life had moved on. However, he said that it was about compliance with the Human Rights Act. I do not believe that the two are in contention. Life has moved on. One example of how it has done so is that we have taken the convention into domestic law. That is one of the ways in which we have moved on, because it was felt right and proper, by all sides of the House, that we should take that action in bringing the convention into domestic law, as we have.

I suggest that nothing in what I have said in any way takes away from the point about, on the one hand, trying to have law that is compliant and, on the other hand, the development in human and civil rights. I am pleased that we have moved on considerably in those respects since 1951. I believe that most noble Lords will be able to agree.

We have given careful consideration to the noble Lord's amendment. I thank him for giving us the opportunity to look at the matter again and for the courteous way in which he approached the issue, both in the House today and in some of the private conversations we have had. I do not believe that the amendment is necessary and hope that on reflection he will feel able to withdraw it.

Lord Campbell of Alloway

My Lords, I thank the noble Baroness, Lady Symons of Vernham Dean, for the spirit in which she took the amendment and for understanding the spirit and purpose for which it was tabled. However, as yet no specific breach of any article of the convention has been identified which requires this massive amendment to the service discipline Acts. If one were to take the sense of the House, it has been a good debate and according to my card the majority opinion, the sense of the House, is that we should continue to seek a compromise and a middle way. I am prepared to continue to do that.

I am grateful to the noble and gallant Lords, Lord Craig of Radley and Lord Bramall, for what they said. I am also grateful to my noble friend Lord Renton and my noble friend Lord Kingsland, who was quite right in his interpretation of why I tabled the amendment. I am grateful to my noble friend Lord Burnham; it is quite a change of experience. I was delighted to have such valid support from my own Front Bench.

I mean it when I say to the noble Lord, Lord Lester of Herne Hill, that I am grateful for all the trouble he took and the expertise which he deployed before the House. It was perhaps unfortunate that in the mass of expertise and exposition he somehow misunderstood the spirit and purpose of the amendment. The noble Baroness did not, but he did. I am grateful to all noble Lords. I wish to read the debate in Hansard and have the opportunity to think again. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Lord Burnham moved Amendment No. 2: Before Clause 1. insert the following new clause—

SERVICE DISCIPLINE ACTS: CONSOLIDATION

(" . On the day on which this Act comes into force, the Secretary of State shall lay before Parliament a copy of the following Service Discipline Acts consolidated into a single Act and including all the changes with respect to military discipline made following the passing of the Human Rights Act 1998—

1. Army Act 1955;
2. Air Force Act 1955; and
3. Naval Discipline Act 1957.").

The noble Lord said: My Lords, I am not now, nor was I on a previous occasion, teasing the noble Baroness when I say that a perspicacious Minister—and I rank her as one—would note that the wording of the amendment is similar to that moved in Committee by my noble friend Lord Peyton of Yeovil. The reason it has not changed is that I could not better it. I wish to make a point and I hope that I can obtain succour from the noble Baroness.

We noticed in Committee that with all amendments there were the Bill is not made easier by the three service disciplinary Acts, which are marginally different. That means that virtually each amendment has had to be put down three times. As the Minister pointed out in Committee, there is also the Manual of Military Law, which is inclined to weigh down the right-hand side of my noble friend Lord Attlee.

That makes life difficult. The addition, on top of that, of the Bill, the Human Rights Act and all it implies makes life for the military commander and anyone else who has to enforce military discipline very difficult. I hope, therefore, that the Government will be able either to accept the amendment or, if they cannot do so, to give me more than just hope, an assurance, that in the quinquennial Act that we expect in the year 2001 we shall have a reconciliation into one Act of all matters of discipline which affect the Armed Forces. I beg to move.

Baroness Symons of Vernham Dean

My Lords, it may be convenient to the House if, in responding to Amendment No. 2, I speak also to Amendments Nos. 5 to 7. I am grateful for the opportunity to add to my remarks in Committee in responding to the amendment on the subject of consolidated texts tabled by the noble Lord, Lord Peyton of Yeovil. At that stage I sought to reassure noble Lords that up-to-date texts of the service discipline Acts, having been placed in the Libraries of both Houses, were available to Parliament to assist in consideration of the present Bill.

However, it emerged during debate on the amendment moved by the noble Lord, Lord Peyton, that there was probably as much concern about the availability of up-to-date texts of the legislation outside Parliament. It is possible that I did not address this legitimate area of interest as fully as I might have done at Committee stage. I have subsequently written to a number of noble Lords to clarify the position, and I am happy to do so again today.

We ensure that those who have most need of the discipline Acts—members of the Armed Forces—have ready access to them in their current state. Since Committee stage I have been reassured that in all three services commanding officers and others are provided with a manual—for example, the Manual of Military Law in the case of the Army—containing updated texts of all relevant service law, with explanatory footnotes and textual commentary. A number of copies are available within units at all times. Clearly, it is essential that that should he the case, and I hope that the information I have provided reassures noble Lords. The manuals will be updated further after the enactment of the present Bill.

However, this amendment goes rather further than that tabled by the noble Lord, Lord Peyton of Yeovil. It appears to suggest that the three service discipline Acts should be merged into one. There are two approaches to this. There is the approach implied in the amendment which simply wraps the texts of the three current Acts into a single cover. That does not appear to be very attractive to us. It would produce a piece of legislation for the services to work with which was three times as large as that which each has to operate today. Alternatively, the Government's approach, which is set out in the Strategic Defence Review, is to work towards a genuine tripartite service discipline Act. We believe that this offers very real benefits in an environment where the services work ever more closely together. It will produce a disciplinary regime to match that joint environment. Unfortunately, such an Act cannot be developed overnight or even, as I believe the noble Lord, Lord Burnham, suggested at Committee stage, during the Christmas Recess.

Our priority is the present Bill. In the next Session we shall consider the quinquennial Armed Services Bill. Both Bills will alter the service discipline Acts. After the quinquennial Bill is enacted in 2001, we shall start substantive work on the major project of creating a new framework for service discipline with the development of a new tri-service Act. Obviously, we shall want Parliament to consider that as soon as an appropriate Bill is ready and parliamentary time is available.

I have difficulty in understanding Amendments Nos. 5 to 7. The intention appears to be to prevent a day being appointed for a particular purpose until the manuals of service law containing copies of the updated service discipline Acts have been deposited in the Libraries of both Houses. My difficulty lies in knowing to what the words no day shall be appointed for this purpose refer. The amendment is attached to the provisions of the Bill which deal with the arrest of art accused during his trial by court martial. It appears, therefore, that the intended effect of the amendments is to prevent these provisions alone from having an effect until the manuals of service law have been deposited in the Libraries. In speaking to Amendment No. 2, I hope that I have made clear the position as to the availability of the updated texts of the service discipline Acts.

We believe it is of the utmost importance that those concerned with the administration of discipline should be aware of both the changes in service law and their significance. I can assure noble Lords that everything will be done to ensure that the changes in procedures envisaged in the Bill are fully understood by the chain of command; that is, commanding officers and all who need to be aware of what is in train. The manuals will be amended and training will be provided. Whatever the purpose behind Amendments Nos. 5 to 7, can assure the House that everything will he done to meet what I believe is their benign intention; namely, to make the new law known to all. I hope that, on the basis of the assurances that I have given, the noble Lord will feel able to withdraw his amendment.

Lord Burnham

My Lords, I thank the noble Baroness for that explanation. The purpose of Amendments Nos. 5 to 7 is solely to underline what we believe is the necessity to reconcile and consolidate the various discipline Acts. As to Amendment No. 2, I was very happy to hear virtually all that the noble Baroness said. However, she said that after the quinquennial Act the Government would look very seriously at reconciliation of the discipline Acts. I do not now seek anything as ridiculous as completion of the necessary work over the Christmas Recess. A considerable time will elapse before the publication of the Bill. I ask that the quinquennial Act should itself contain the reconciliation of the disciplinary Acts. With that caveat, I have much pleasure in withdrawing the amendment.

Amendment, by leave, withdrawn.

Lord Burnham moved Amendment No. 3: Before Clause 1, insert the following new clause—

APPLICATION OF ACT TO GENEVA CONVENTION OPERATIONS

(" .—(1) Where a person to whom this Act would otherwise apply is engaged in operations to which the Geneva Convention of 12 August 1949 and the Additional Protocols of 1977 apply, the several time limits set by this Act by reference directly or indirectly to the time at which the person is first arrested shall not start to run until either—

1. (a) the arrested person is no longer engaged in operations to which the said Conventions apply; or
2. (b) fourteen days have elapsed since the arrest was made, whichever is the first.

(2) A reasonable belief on the part of the commanding officer or other superior authority concerned that the said Conventions apply shall be an absolute defence against any allegations to the contrary.").

The noble Lord said: My Lords, we now come to a matter that is a source of substantial worry to a considerable number of noble Lords, particularly those whose experience of administering service discipline is greater than mine. The amendment is related to the impossibility in certain circumstances of administering the Act as set out. One is concerned with timing. We do not believe that under the polar ice cap, in Kosovo or in South Georgia it is possible to apply the time limits contained in the Bill. We have no desire to damage the Bill but we seek to make it possible to apply it effectively.

Amendment No. 3 has been worded so as to make reference to the Geneva conventions which provide an internationally agreed definition of "armed conflict". That definition is narrower than the UK's definition of "active service", to be found in Sections 224 and 225 of the Army Act and the provisions in the other Acts. The derogation contained in Article 15 of ECHR is not good enough for what we require. We do not suggest that a nation will be in peril very often, which is required for the purposes of that derogation. We seek to apply an acceptable compliant definition of "active service" which, while narrower than the UK working definition, which is also used for other purposes, is a real marker of the dividing line between ordinary service life when the ECHR applies and the extraordinary circumstances peculiar to service life when it is generally recognised that on occasions—this point has been made by a number of noble Lords during debates on the subject—personal liberty must for the time being be subordinated to the requirements of discipline. We talk about additional protocols. The UK became a high contracting party to those additional protocols in 1998. The first additional protocol relates basically to an international conflict and the second to a national one.

Subsection (2) of the amendment deals with whether those additional protocols cover in British law the situation when, for example, British troops operate under the United Nations as distinct from the United Kingdom authority, as in Kosovo. There is a reasonable belief that they do so but no certainty. Subsection (2) is somewhat like that catch-all phrase to which my noble friend Lord Renton will refer later: offences against good order and military discipline.

We believe that subsection (2) is a reasonable definition and a requirement which, if applied, would not be in breach of the Human Rights Act or the ECHR. We believe that the amendment is not contrary to the Human Rights Act or the ECHR. It is a practical way, and the only way, in which it will be possible to apply the Act when we are in peril. I beg to move.

4.30 p.m.

Lord Carver

My Lords, I recognise that the amendment is an ingenious way of meeting the criticism that I made at Second Reading, in Committee and today about circumstances which I refer to as high intensity warfare. For example, if the Gulf War had continued for a great deal longer, it would not have been practical to apply Clauses 1 to 10 concerning custody and gaining authority from the judge advocate.

However, I am not happy with the amendment. Subsection (1) would be difficult to apply. To state that those conditions are the ones automatically to apply will lead to considerable difficulties and complications. It would be unsatisfactory to rely on the reasonable belief of the commanding officer.

I accept that the wording of Article 15 of the convention as a basis of derogation might raise difficulties. But if it can be used as it has been used in respect of the civil courts in Northern Ireland, I cannot understand why it should not be used, as the noble Baroness suggested, in those conditions where it would be impractical to apply the provisions.

The advantage would be that the British Government would determine when they wanted to make the change and when they did not, whereas there could be difficulties in deciding on the conditions suggested by the amendment. Although I recognise that the intention is admirable, I regret that I cannot support the amendment.

Lord Vivian

My Lords, to a certain degree this amendment returns to the timing provisions that have been drafted for custody regulation. Like many of your Lordships, I was concerned that the proposals in the Bill for custody would not be workable in operations such as the Falklands, the Gulf and certain peace enforcement situations.

However, on further scrutiny of the Bill, I have now noted—I missed it at Second Reading—that in the proposed legislation there are adequate provisions for flexibility in those instances when operational imperatives make it impossible to conform to those legal requirements. New Section 75B(4) provides flexibility in reviewing custody. It states: If a review is postponed under subsections (3) [and (4) of this clause]". Presumably this would then entitle a commanding officer to postponement of a review provided that it is carried out as soon as is practicable after the expiry of the last authorisation under new Section 75A(4) of the Bill.

New Section 75E(2) allows the commanding officer flexibility over the timings of custody hearings and reviews, and periods of time in the relevant clauses are to be treated as approximate only.

Lord Wallace of Saltaire

My Lords, I speak on the same lines as the noble and gallant Lord, Lord Vivian. The serious intent of the amendment is to strengthen the phrase in new Section 75B, "as soon as practicable", and to put it into a stronger form.

As a layman in many of these matters, during the past week I consulted two acquaintances who have recently held regimental command on whether such an additional amendment was necessary. Their opinions on the quality of the Bill were different. One said, "We have to accept this. It's a necessary evil". The other said, "It's a thoroughly good thing. It's about time we encouraged COs to recognise that justice should reign even on operations". The strongest impression I received is that the communications revolution has made it possible to operate a system where "as soon as practicable" means not a very long time.

One exceptional circumstance remains: the prospect of a nuclear submarine under a Polar icecap. However, whether one's entire military system should be based upon that one exception needs to be considered carefully. One of those to whom I spoke said, "If you are in deepest Kosovo or Borneo, the Ministry of Defence may not want to speak to you all the time, but the BBC or CNN will be demanding an interview, whatever happens". So the image of long operations which are not in touch with base seems no longer to hold. I therefore suggest that the amendment is not necessary and that the phrase "as soon as practicable" covers the necessary clauses.

Lord Lea of Crandall

My Lords, I have been a Member of this House for only a few months. It is interesting to note that when this issue, which loomed large only a few weeks ago, is put under the spotlight it reveals that an active service clause is not a sensible idea. Many Members who believed, as did the noble and gallant Lord, Lord Carver, that that was the way forward do not believe so now. During this debate there has been much reference to flexibility. Clause 2 of the Bill refers to Section 75 of the Army Act and indicates that in practice the issue should be dealt with on a common sense basis.

To reiterate the point in another way, this problem, as perceived by many noble Lords only a few weeks ago, has been thoroughly scrutinised. A broad consensus is emerging on all sides of the House that it has been looked at very carefully and that this is probably not a good solution. The Bill will be debated for many weeks yet in the newspapers and in the country, and those concerned should take note of how this process of scrutiny of this aspect of the Bill has produced a very useful consensus result. It is very useful that the matter has been raised, but I believe that that is the message being received around the House on this point.

Baroness Hilton of Eggardon

My Lords, I am always reluctant to draw analogies between the police service and the armed services. They have very different roles and functions. But there are similarities structurally—hierarchy, uniform and a discipline code.

The amendment seeks to make a distinction for armed personnel on active wartime service. One way in which the police service differs from the armed services is that it is permanently on active, operational service. Therefore, discipline proceedings must be juggled between the ability to deal with the policing of riots, football matches, crime investigations and so on. In such emergencies it is nevertheless possible to have a single discipline code. That does not mean that a police officer has a lower standard of entitlement to human rights because he happens to have committed a discipline offence during a riot or some other emergency.

It is also extremely important when one has a discipline system to have a single discipline system that everybody understands. To have a dual system that applies in some circumstances and not in others could be extremely dangerous. Senior officers and commanding officers in the armed services exercise discipline through mutual respect and trust. It is very important that any discipline system is trusted, respected and understood. To have a dual system would militate against that.

It has been said that the system laid down in the Bill would be sufficiently flexible to deal with the situation of being engaged on the frontline in Kosovo or even under the Arctic ice. With modern systems of communications it would surely be possible to be in touch with the judge advocate and receive his authority for custody if necessary.

My experience is, though, that when officers are actively engaged in an operational situation discipline problems fall away; there are very few in those circumstances. Therefore, the amendment should not be supported.

Lord Hoyle

My Lords, I always listen with great interest to the noble Lord, Lord Burnham. I always did when I was on the Front Bench, very often having to reply to him. I know the concerns that he expressed that exist in certain quarters in relation to when troops are on armed service. But a very good case has been put forward today. Modern communications overcome many of the problems that the noble Lord poses.

I think that what is really being said here concerns the need in the cases in question to get hold of the judicial officer, and that can be done by modern telecommunications. As has been said with regard to Kosovo, the commanders-in-chief from the theatre were almost daily on the news conference given by the MoD. Therefore, the logistical concerns expressed by the noble Lord can be overcome.

There are one or two other good arguments as well. My understanding is that the Armed Forces, and particularly the Chiefs of Staff, support the proposed measures, because they do not want two systems, which would lead to chaos and duplication. We should take on board the views of the Chiefs of Staff as well.

For all the good reasons that have been given, particularly modern communications, and the views of' the Chiefs of Staff, I hope that the noble Lord, Lord Burnham, will reconsider the amendment and decide to withdraw it.

4.45 p.m.

Baroness Symons of Vernham Dean

My Lords, the noble Lord, Lord Burnham, made it clear in Committee that he was likely to continue his quest for a provision to be added that would lessen the impact of certain of the procedures envisaged in the Bill in certain circumstances. Part of his difficulty was to find a means of defining those circumstances. This amendment focuses on the Geneva convention of 1949 and the additional protocols of 1977 as a definition of those circumstances in which there could be what might be called an operational opt-out.

I should say that I understand the noble Lord's desire for such an opt-out. On the face of it, it appears to be very helpful to the services. We have certainly re-examined the issue since our debate in Committee; that I have done with colleagues in the Ministry of Defence. Since much of our discussion then was about the meaning of the word "war" and the relevance of Article 15 of the European Convention on Human Rights, we have looked at those issues in particular.

In Committee the noble Lord, Lord Burnham, told us about the Geneva conventions and protocols, in the context of a possible definition of "war". As he will know, those international conventions apply to an armed conflict, whether or not a state of war is recognised as existing by all or any of the parties. Neither "war" on the one hand nor "armed conflict" on the other is defined in the Geneva Conventions or their Protocols, because it was not necessary to do so.

The position was accurately summarised by the noble Lord, Lord Campbell of Alloway, when he said, there is no state of war unless there is a declaration of war with all that that entails", adding that, so many activities go on all over the world, and have done so since World War II, which are totally akin to war."—[Official Report, 16/12/99; col. 325.] As it happens, the United Kingdom has not declared war for 59 years, when Japan entered World War II. All this goes to show the wisdom of the drafters of the Geneva Conventions, when they decided that it was what was actually going on that was of importance, and not what the parties decided to call what was going on. It is significant, too, that the UN Charter does not refer to "war" in any of its operative articles.

The meaning of "war" arose in relation to Article 15 of the ECHR, because a derogation can occur only in time of war or other public emergency threatening the life of the nation". We had cause to reflect on that quotation earlier this afternoon. The qualifying words— threatening, the life of the nation"— obviously limit the availability of the power to derogate to extreme situations, and even then Article 15 only allows for derogation to the extent strictly required by the exigencies of the situation". The European Convention does not define "war"; nor is it necessary to do so. Whether military operations are a declared war, or are part of armed conflict where no war has been declared, the key question is whether the conflict that is going on threatens the life of the nation. That expression is not defined in the convention, but it has been interpreted by the Court of Human Rights, and it is clear that the primary task of assessing whether the test is satisfied is for the state concerned, subject, of course, to the supervision of the court.

I hope that that was not too long-winded and was sufficiently clear. I think it is important that we all define the parameters within which we are discussing the noble Lord's amendment.

A number of noble Lords have asked in particular whether the ability to derogate in respect of our summary discipline arrangements could have arisen in any of our recent military involvements. I was asked particularly about the Gulf and the Falklands in the Committee debate on 16th December, when I remember saying that this was a difficult point. In Bosnia, in Kosovo and in East Timor, United Kingdom ground forces were involved as part of international peacekeeping forces operating under UN mandates, and, of course, with the agreement of the countries concerned. It is difficult to see how such situations could fall within the power to derogate under Article 15.

In the Gulf War, we were also part of an international coalition, authorised by the United Nations, to use armed force to compel the removal of Saddam Hussein from Kuwait. Again, that was not a situation where the power to derogate could very easily be said to have been triggered. The Falklands were a little different in that the islands were, and still are, British territory—indeed, territory in which the convention applied—so it is perhaps more readily arguable that the right to derogate could in principle have been triggered. However, it would be wrong for noble Lords to assume that Article 15 powers to derogate would axiomatically be triggered whenever UK forces are fighting abroad. I am afraid that that is the flaw that lies at the heart of the noble Lord's amendment.

In any event, the conclusions we have reached on the subject of a possible opt-out are rather different from those of the noble Lord. Our conclusions reflect our confidence in the measures in the Bill. I am of course aware that the noble Lord's major concern is that the provisions of the Bill may impede operational effectiveness. These concerns are well intentioned, but they are misplaced. The proposals in the Bill have been designed, with the services, specifically so as to be compatible with all circumstances in which the services might find themselves.

I can assure your Lordships that operational considerations will remain paramount. There must be no misunderstanding on this point. This Government, like any other responsible government, will expect commanders to give appropriate priority to the operational imperatives of the situation and to the lives and security of all those under their command. I hope that is a sufficiently clear and unequivocal statement. There is no conflict between the unwavering intention behind what I have said and the procedures laid out in the Bill.

It may be that the concerns that there could be such a conflict reflect an exaggerated idea of how frequently some of the provisions in the Bill will need to be implemented. In the vast majority of cases, there will be no need to hold a suspect in custody for periods that will require approval by a judicial officer. It will be known whether or not there is sufficient evidence to prefer a charge well within 48 hours and even if there is not enough information on which to base such a decision within this time-scale, it does not follow that it is necessary to hold the individual in custody. The more extreme the circumstance that we envisage—such as the submerged submarine, referred to by the noble Lord, Lord Wallace of Saltaire—the easier it is generally likely to be to assemble sufficient evidence to prefer a charge.

Similarly, after charge, it will not usually be necessary to hold an accused in custody, so the need for a custody hearing will not arise. Where there is a requirement for such a hearing, the Bill provides that it should be held as soon as practicable. The noble and gallant Lord, Lord Vivian, drew that to our attention so cogently. This is dealt with in Clause 2. The formula "as soon as practicable" occurs on page 15, lines 19 and 20, for the Army Act; on page 17, lines 5 and 6, for the Air Force Act; and for the Naval Discipline Act, on page 18, line 38.

This formula gives us the flexibility that we need. Perhaps I may return to the scenario of the submarine, put forward by the noble Lord, Lord Wallace of Saltaire. If it were at the beginning of its patrol, and in the unlikely event that there was a need to hold an individual in custody, there would be no question of the submarine surfacing to enable the individual to be brought before a judicial officer. Such a hearing would have to wait until after the end of the patrol. That would be "as soon as practicable", as provided for in the Bill. I need hardly make the obvious point that, in any event, the accused would have very limited freedom of movement on the submarine in question.

After a summary hearing, there will of course now be a right of appeal. There will be time-limits within which this right is to be exercised and we shall be debating those later. But the Bill allows for applications to be made out of time—another important point—and it is difficult to imagine a more sustainable reason for such an application other than deployment on a submarine patrol or similar operational exigency. Therefore, I believe that flexibility is contained within the Bill before your Lordships.

If an assurance is being sought that in the most extreme operational circumstances the requirements of the Bill will somehow be set on one side, I cannot offer that. Indeed, that is to miss the point. A single system—and as my noble friend Lord Hoyle said, we need a single system—capable of operating in all circumstances reduces the scope for confusion and divisiveness. The system we have proposed in the Bill, because of its flexibility, provides that.

We are not posing commanding officers with the unpalatable dilemma of whether to implement the procedures envisaged in this Bill or, on the other hand, to maintain operational effectiveness. The Bill allows commanders to discharge both those responsibilities.

I again stress that we regard it as key to the proper fulfilment of our responsibilities that commanding officers must be given proper guidance in the application of these new procedures and the way in which they should exercise the flexibilities that are inherent in the Bill. We shall discharge that responsibility.

I ask the noble Lord to reconsider his amendment and, more fundamentally perhaps, the concerns which it attempts to articulate. Perhaps I may borrow a phrase of his and say that we have developed the Bill together with the people who know what they are talking about—those who are responsible for these matters in today's services. That is what gives Her Majesty's Government the confidence that with them we have been able to get the Bill right. I hope that I have given the noble Lord sufficient assurance to allow him to withdraw his amendment.

Lord Burnham

My Lords, I think that I thank the noble Lord, Lord Hoyle, for his personal remarks. I may have to study them again, but I thank him. There is one point on which I disagree with him and other noble Lords; that is, on their reliance on modern communications in the circumstances we envisage if personal contact is not possible. We have previously talked about video links and goodness knows what else and I was amused to note that the Minister did not pray that in defence of her case. Perhaps some of her military advisers nudged her and told her that such bits of kit do not always work!

I thank the Minister for her clear explanation of her opposition to my amendment. Perhaps I may add to what she said about war. I raised the matter in an intervention in Committee. Different nations treat war in different ways. The United States, with which we are frequently closely associated, has a difficult definition of war. It is not practical to use a declaration of war as a possibility for what I am seeking. As I and other noble Lords have said time and time again, Article 15 is not good enough. It does something, but not enough.

The Minister understands what I am trying to achieve. However, listening to her and to other noble Lords I get the message that, although the end result is desired, the way in which I have approached the matter does not meet with favour. There is one more stage of the Bill. As a result, I shall go away. "I shall come back"—in the words of General Macarthur—but I hope that I shall be able to come back with an amendment which achieves what I am trying to achieve and which will meet with the approval of the House. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

Clause 1 [Custody without charge]:

Earl Attlee moved Amendment No. 4: Page 2, line 20, at end insert (", or ( ) to obtain authority to search him, his possessions or his accommodation").

The noble Earl said: My Lords, in moving the amendment I remind the House that I am a serving TA officer and I have powers of summary jurisdiction which I exercise on behalf of my commanding officer.

It occurred to me that the powers of a CO with regard to searches are quite extensive and that they might not be compliant with the ECHR. I have therefore drafted this probing amendment to enable us to debate the issue of searching servicemen or their property and to give the Minister the opportunity to inform your Lordships of any changes regarding the power to order or to undertake searches.

My amendment provides another reason for detaining a serviceman to those provided in Clause 1: to obtain the necessary authority to undertake a search. It is purely a probing amendment. Perhaps the Minister could tell the House what are the powers of the commanding officer and other officers to order a search, either formal or informal, and whether she is confident that there is no requirement to modify the current rules regarding searches as they obtained at the start of this Parliament. I beg to move.

Baroness Symons of Vernham Dean

My Lords, in order to investigate an offence effectively, it is axiomatic that searches of a person or his possessions and accommodation may be necessary. That may be the case in any investigation conducted by the service police, or indeed otherwise.

It is with that requirement in mind that the services were content in the Bill to adopt the long-established wording in the Police and Criminal Evidence Act 1984, without modification. That is from where the wording is drawn. New Section 75A in the Bill currently provides for someone to be detained without charge if there are reasonable grounds for believing that that is necessary for the purposes of securing or preserving evidence relating to an offence for which he is under arrest.

Because we cannot conceive of any circumstances in which it would be reasonable, in the context of a police investigation, to search a person, his possessions or his accommodation other than for the purposes of securing evidence, we believe that the current provision provides a wide enough definition and that the Bill does not need to be amended in the way that the noble Earl has suggested. I hope that with that explanation he will feel that his probing amendment has revealed sufficient reason as to why the Bill is drafted as it is and will feel able to withdraw his amendment.

Earl Attlee

My Lords, before I withdraw my amendment, will the Minister say whether there are any plans to amend the Queen's Regulations regarding searches?

Baroness Symons of Vernham Dean

My Lords, I am unaware of any such plans, but if it is purely a case of my ignorance rather than my wisdom on the point, I shall write to the noble Earl and let him know that I am wrong. However, I do not know of any such plans.

Earl Attlee

My Lords, I thank the Minister for that reply and for the time being I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 6 [Arrest during proceedings]:

[Amendments Nos. 5 to 7 not moved.]

Clause 7 [Judicial officers]:

Lord Burnham moved Amendment No. 8: Page 29. line 14, at end insert ("and shall enjoy security of tenure, in that they may only be removed from office in the same manner as circuit judges").

The noble Lord said: My Lords, I find myself in some difficulty. This and other amendments have been put together by my noble and learned friend Lord Mackay of Drumadoon. My noble and learned friend is at the present moment in court in Edinburgh. He had thought that he would be able to be here at about this time—or about an hour ago, as he did not believe that the debate would continue for this long. However, at the beginning of the debate I received a message that he would not be with us. Therefore, with apologies to the House, I shall, if I may, blatantly quote from the brief that he has given me on the matter.

Amendment No. 8 relates strictly to a legal situation which has arisen in Scotland, which has got my noble and learned friend going—which makes it clear that I know even less about the matter than I should have done otherwise. My noble and learned friend says that the Government justify most of the Bill's clauses on the basis that they are required to meet ECHR commitments. He is concerned whether the provisions relating to judicial officers in Clause 7 and the existing law relating to the use of judge advocates are convention compliant. In both instances, the factual basis for his concern and mine in moving the amendment is that they may be appointed on short-term, temporary and renewable contracts. That raises the issue of whether the involvement in court martial procedure means that the provisions of Article 6(1) are being breached. It grants an entitlement to the determination of any criminal charge by, an independent and impartial tribunal established by law".

In Committee, my noble and learned friend mentioned a criminal case decided by the High Court of Justiciary in Scotland, Starrs v. Procurator Fiscal, Linlithgow. In that case, the appeal court in Scotland held that trial before a temporary sheriff appointed by the Scottish Executive for one year, whose appointment on the one hand could be terminated at any time and, on the other hand, could he renewed from year to year, did not constitute compliance with Article 6.

The case was decided on 11th November 1999. When my noble and learned friend spoke in Committee on 16th December, there was still a possibility that the Crown would have marked an appeal to the Judicial Committee of the Privy Council. It has chosen not to do so. That means that the UK Government now must indicate whether or not they consider that the case was correctly decided. If so, how can temporary or part-time judges be acceptable in court martial procedure? If not, what are the grounds for saying that the case was incorrectly decided? It is no use saying that that was a Scottish case and has no relevance in England. Court martial law applies throughout the United Kingdom. In any event, the basic principles with which the Scottish court was concerned, both as to the facts and the convention, are just as applicable to court martial law.

My noble and learned friend is deeply concerned, as we have all been throughout discussion on the Bill, about whether the Bill is compliant with the convention and, as we have said, whether the Bill is over-compliant. But here we are asking whether it is compliant. I do riot know whether the Minister can give an answer at this stage. If she cannot, I believe that it is a matter to which we should return at Third Reading when, I have no doubt, she will be able to give an answer. The amendment is an indication that we are not happy that the Bill achieves what it is said to be trying to achieve. I beg to move.

Lord Molyneaux of Killead

My Lords, I warmly agree with what the noble Lord, Lord Burnham, has just said; in particular, that Her Majesty's Government will need to take the lead in regularising the matter of part-time sheriffs, judges and justices of the peace. As the noble Lord said, a complaint was made recently which was mentioned in this House by a number of noble Lords from the opposite Benches. A fairly important case was rejected by the European Court on the basis that it had been insufficiently decided and, therefore, was null and void.

The noble Lord, Lord Burnham, has said that the matter goes much wider than the ramifications of this Bill. I suggest that it will affect, as he correctly said, all parts of the United Kingdom. For example, the phrase "part-time judges" will apply to Northern Ireland. Noble Lords will forgive me for dragging in that obscure part of the United Kingdom!

At an earlier stage in my career I served for 15 or 20 years as a justice of the peace. The highlight of my career was that I presided over the initial stages of a murder trial. I have raised a question in relation to this matter but have rot been able to obtain an answer. I do not direct that at the noble Baroness, who has been very sympathetic and courteous throughout. However, I want to place on the record that currently my successors as justices of the peace are all part-time justices. Certainly, they provide that service—for example, signing summonses and hearing cases—in their spare time and sometimes at the expense of their careers.

However, unless we as a Parliament—I include both Houses—are extremely careful, I am afraid that we may find ourselves in a situation where dozens of trials will collapse by reference to the European Court on the insufficiently decided formula simply because, at some stage, the decision was taken by someone who, in the past, was appointed quite legally arid who believed himself to be authorised by the Crown to hear and decide criminal cases. When the lid comes off, we shall see that a whole range of well-meaning people at different levels have presided over the dispensing of justice when, in the eyes of the European Court, they were not entitled to do so.

Lord Hope of Craighead

My Lords, by way of information, perhaps I should mention that there is another Scottish case which raises the same issue. As has been said correctly, the case of Starrs v. Procurator Fiscal, Linlithgow is not to proceed any further. Therefore, the Judicial Committee of the Privy Council will not have an opportunity to examine the decision in that case.

However, there is another case (the name of which escapes me) which involves the question of whether a temporary judge—that is, a judge at a higher level than temporary sheriff—is properly appointed. I understand that that case has now been reported tinder Scottish procedure by the temporary judge in question to the Inner House of the Court of Session—this being a civil case—and that the question arises as to whether the Inner House will then refer the matter to the Judicial Committee for decision. I have no doubt that that case is known also to Her Majesty's Government. However, it is right that we bear in mind that those issues arise in a number of ways and affect different judicial officers at different levels. Therefore, for what it is worth, I support the point already made that this matter requires careful attention before a final decision is taken.

Lord Campbell of Alloway

My Lords, I mention very briefly that my noble and learned friend Lord Mackay of Drumadoon is in court today. My noble friend Lord Burnham asked me if I would stand in to say virtually nothing, other than that I wholly support the amendment. In view of what has just been said by the noble and learned Lord, Lord Hope, there is no question that this matter will need to receive attention.

5.15 p.m.

Baroness Symons of Vernham Dean

My Lords, I wrote to the noble and learned Lord, Lord Mackay of Drumadoon, after our discussion in Committee. In all fairness to the noble and learned Lord, who, unfortunately, is not with us this afternoon because of his commitments elsewhere, I should say that he will not have received the correspondence because it was, I believe, placed in his pigeon-hole this morning. However, I make the point to your Lordships that I have tried to pass some information to him.

Perhaps it will help your Lordships if I put a little more flesh on the bones about the present facts of the matter. In the Army and Air Force, trial judge advocates are mainly the holders of permanent, pensionable judicial appointments, although other part-time judge advocates are also used for around one-sixth of courts martial.

In the Royal Navy, judge advocates are fully qualified barristers who are, first and foremost, commissioned officers. Once they have sufficient legal experience, they may be rotated into a judge advocate post in the same way as other personnel in the services are posted into different jobs at different points in their careers. Being a naval judge advocate is one of a number of roles, both legal and non-legal, which a suitably qualified officer will perform during his time in the Royal Navy.

At present, consideration is being given to the detailed arrangements for the appointment of judicial officers provided for in the Bill. As I believe the noble and learned Lord, Lord Mackay of Drumadoon, is aware, my noble and learned friend the Lord Chancellor is considering the implication of the Starrs case and has undertaken to make a Statement to the House when his consideration is complete. Obviously, we shall be guided by his conclusions, but I believe that it would be inappropriate and certainly most unhelpful for me to react to the Starrs judgment outside my noble and learned friend's wider review of the position of the judiciary in the light of that judgment. I assure the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Molyneaux, that the points they raised will be drawn to the attention of my noble and learned friend.

I hope that in the light of the assurances that I have given the House about the intentions of my noble and learned friend in making a Statement on this important matter, the noble Lord, Lord Burnham, and, in absentia, his noble and learned friend Lord Mackay of Drumadoon will understand my position, and that the noble Lord, Lord Burnham, will be kind enough to withdraw his amendment.

Lord Burnham

My Lords, certainly I fully understand the noble Baroness's position and I withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 9 to 13 not moved.]

[Amendment No. 14 not moved.]

Clause 11 [Right to elect court-martial trial]:

Earl Attlee moved Amendment No. 15: Page 32, line 19, at end insert— ("(3A) An accused who elects for court-martial in accordance with the provisions of subsection (1) above may apply to the commanding officer or appropriate superior authority for leave to withdraw that election. (3B) An application by the accused for leave to withdraw election for court-martial shall include a written statement as to those of superior rank with whom he has discussed the application. (3C) The record of the grant of leave to withdraw election for court-martial shall include—

1. (a) the application together with the statement from the accused required by subsection (3B) above;
2. (b) a written statement signed by the person or persons who gave advice to the accused on behalf of the commanding officer or appropriate superior authority and such record.

(3D) The record of the grant of leave to withdraw election for court-martial shall be delivered forthwith to the Judge Advocate General.").

The noble Earl said: My Lords, in moving Amendment No. 15, it may be convenient if I speak also to Amendment No. 16. In scrutinising the Bill, we are attempting to balance the rights of the individual with the needs of military discipline. Much has been said by the Minister to advocate those new rights. We discussed the timing of the accused's election for court martial. The Minister put forward an attractive argument that election for court martial after a finding of guilt by the CO could be more by way of an appeal than a court of first instance. It may have been possible merely to alter the rules of procedure to eliminate that possibility. We have not returned to that point at this stage of the Bill, but another place will no doubt re-examine the issue.

Changing when the accused can elect for court martial is of little value if, in practice, the accused is unable to exercise his choice. Let us suppose that a small piece of army equipment has been lost. I apologise for using an army illustration but it is easier for me, although the argument is the same for each service. The soldier claims that he handed the equipment to an NCO but the NCO denies that. Unfortunately, the unit's receipts and issues register is not in particularly good order. Due to the low value and sensitivity of the equipment, the penalty at summary dealing is likely to be very modest. However, the soldier knows that he did not lose the equipment and his legal advice is that the charges would not be sustainable at court martial.

In those circumstances, it would be quite reasonable to elect for court martial because at summary dealing, he may well be found guilty. In a later amendment, I shall address the applicability of PACE to summary dealing and courts martial.

Unfortunately, in the real world, he would not be allowed to exercise his right to elect for court martial for such a trivial matter. Such a matter would initially be dealt with by the officer commanding—the OC—on behalf of the CO. If the CO himself heard that a soldier wanted to elect for court martial and, by implication, did not trust the OC, the CO would not be impressed with the OC. If it happened to the OC a few times, he would be in difficulties with his commanding officer. If the commanding officer's superiors heard that a soldier was electing for court martial, they too would draw unfavourable conclusions.

So what happens in practice, in the real world, is that heavy pressure is applied to the soldier to withdraw his election. The situation could be one of a warrant officer, the company sergeant major or the regimental sergeant major telling or even forcing a private soldier to withdraw his election for court martial in order to avoid embarrassment for his superiors and, indeed, the whole unit. That is hardly equality of bargaining power.

The Minister will have to decide whether it is worth while changing when the accused can elect for court martial if, in practice, he cannot freely exercise that right. Is the Minister content with that situation and, if not, what will she do to address the problem?

My amendment makes it clear that the accused can withdraw his election but provides that he will have to make a statement as to who of superior rank has counselled him to withdraw his election. It does not affect his ability to consult those of the same or lower rank. Those who counsel the soldier on behalf of the CO would also have to make a statement. The records of those statements would then be sent on to the judge advocate-general.

The rules of procedure, which can be found in the manual of military law, could provide that the accused must be warned before he decides whether or not to elect for court martial that he will have to make a statement if he subsequently withdraws his election.

I considered other ways of achieving the same ends and, in particular, limiting who could counsel the accused. I also looked at how I could ensure that if something were going horribly wrong in the unit, the provisions of my amendment would precipitate an external inquiry of some kind. Perhaps a provision that no one of superior rank within the unit could counsel the accused would ensure that the accused could talk to someone outside the unit if he thought that he was being unfairly accused.

I accept that my current amendment may not be the best way of achieving the desired end but it is one way of doing so. I repeat my question. Is the Minister content with a situation in which, in practice, a serviceman cannot freely elect for court martial and, if not, what will she do to address the problems? I beg to move.

Lord Campbell of Alloway

My Lords, I support this amendment. I understand what it is designed to achieve and I support that but I wonder whether it really achieves it because within it, although it is the best that can be done, there is always the possibility that the Court of Human Rights would say, "Oh, but the procedure as such leans too heavily against the man". I express it in very simple terms.

For my part, I believe that we may well have to return to the problem of whether Clause 11 should stand part of the Bill. I suggest that that is the only satisfactory way of dealing with this situation in view of some of the arguments which I raised on Amendment No. 1 which really were not controverted by any specific allegation of breach. I shall not return to the Motion that Clause 11 shall not stand part of the Bill unless I am supported in that by my own Front Bench because to do so without that support would be to waste the time of the House.

Baroness Symons of Vernham Dean

My Lords, although I understand the intention of this amendment with regard to the Army and Air Force Acts, I must say to the noble Earl, Lord Attlee, that I am extremely concerned that he believes that it is necessary to table this amendment in the first place.

In a sense, the purpose of the amendment is admirable, and I have no doubt that the noble Earl's intentions in tabling it are entirely benign. But it presupposes that there is a problem in the services which is sufficiently serious to warrant primary legislation.

I really do not believe that that is the case. The services obviously consider it very important that there should be no inappropriate influence exercised in relation to whether or not to elect for trial by court martial or the possibility of withdrawing such an election. I am assured that if there were to be instances where undue pressure was found to have been brought, it would be taken very seriously and those responsible for such actions would be disciplined. The services are rightly proud of their system of discipline and they are rightly proud that that system is seen to be fair.

The Army and the Royal Air Force currently have a procedure regulating the withdrawal of an accused's election for court martial, and that is laid down in instructions. During the process, the accused has full access to an adviser of his choice whose services will be available once the accused is charged. He will also have access to any legal advice which he has chosen to seek.

More importantly, the instructions preclude certain persons from acting as the accused's adviser. Those include the commanding officer, the officer commanding, anyone involved with investigating or prosecuting the offence and anyone advising the officers in command. The current procedures seem to reflect the very system which the noble Earl believes should operate. However, that is in contrast to the provisions of the amendment which seem to presuppose some involvement by a representative of the commanding officer.

It is difficult to disagree with the sentiments behind the amendment. However, I do not believe that the amendment achieves what it sets out to do. My doubts may be different in character but they mirror those of the noble Lord, Lord Campbell of Alloway; namely, that the amendment does not achieve the objective which the noble Earl stated nor does it usefully add anything to the impartial procedures already in place. The procedures are well understood and we do not believe that there is any reason to tamper with them. On the basis of the assurances that I have given to the noble Earl, I hope that he will feel able to withdraw the amendment.

5.30 p.m.

Earl Attlee

My Lords, I am grateful for the response given by the Minister and for that of my noble friend Lord Campbell of Alloway. Perhaps I should have consulted my noble friend before tabling my amendment.

I am not convinced that Clause 11 should not stand part. As I explained in moving the amendment, Clause 11 is not fatal to military ethos or the moral component of fighting power. But I am concerned that pressure can be applied to a soldier or serviceman to withdraw his election. However, I have listened carefully to what the Minister said. I hope that she will listen carefully to what I have said about the problem. In my experience, this problem can occur, particularly if a soldier or serviceman is being stupid and saying that he wants to elect for court martial when it is not in his best interests to do so. I am certain that heavy pressure would be placed on him to withdraw and that he would not be allowed to go through the court martial procedure. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 16 not moved.]

Lord Renton moved Amendment No. 16A: 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 Lords, your Lordships will see that this is a starred amendment on a separate sheet of paper. I moved and withdrew the amendment in Committee and last week I tabled a shortened version, narrower in its effect. It was similar to Amendment No. 16A and read as follows: No provision of the Human Rights Act 1998 shall prevent members of the Armed Forces from being found guilty of offences against good order and military discipline". That partly resolves a conflict we had when discussing Amendment No. 1 today and one which we have discussed in various ways in Committee. Last week I tabled a variation of the original amendment in that form. For some strange and invalid reason a clerk in the Public Bill Office refused to table it. I did not know of that until yesterday when I arrived here after 5 o'clock, so I went and discussed it. I was not convinced of the reasons given. However, in view of the short time available I did not press the matter but decided to table the amendment in its original form.

In view of the valuable debate we had in Committee, I do not now press the amendment, However, I feel I should mention that at Third Reading I shall table the shortened version. In the mean time I beg leave to withdraw the starred amendment.

Amendment, by leave, withdrawn.

Baroness Symons of Vernham Dean moved Amendment No. 17: Page 39, line 41, leave out ("twenty-one") and insert ("fourteen").

The noble Baroness said: My Lords, in moving Amendment No. 17, I shall speak also to Amendments Nos. 19, 21 and 22. The purpose of these amendments is to reduce from 21 to 14 days the period in which an accused may lodge, with the summary appeal court, an appeal against the decisions of the commanding officer.

I am sure that your Lordships will recall that in Committee I agreed to reconsider the period in which an appeal may be brought in response to the amendment tabled by the noble Earl, Lord Attlee, which he graciously agreed to withdraw at that time.

In Committee I explained that we selected 21 days primarily because it seemed sensible to mirror the civilian system and also seemed a reasonable amount of time to allow an accused to secure legal advice, apply for legal aid and lodge an appeal.

I was unable to accept the amendment of the noble Earl as the period of seven days, which he suggested, was likely to be incompatible with the convention as being too short a time in which to appeal. The possibility of large numbers of applicants seeking leave to appeal out of time or, indeed, of accused invariably lodging possibly ill-considered appeals simply to ensure that they were within time, seemed to me to be something we would all wish to avoid.

However, as I indicated, that 21-day period is not set in stone. I am satisfied that 14 days is a period acceptable to both the accused and the services. That will give an accused two working weeks in which to prepare his or her appeal.

The amendments proposed by the noble Earl, Lord Attlee, suggest that the period should be reduced to 10 days. I believe that that figure is based on the statement I made in Committee that anything less than 10 days would probably be incompatible with the convention. I do not withdraw that statement; nor do I seek to contradict it with this amendment. However, I do not believe that 10 days is an appropriate period in which to allow someone to seek to organise an appeal. It is purely a matter of judgment and of where one believes the realistic time period should fall. We believe the period of 14 days to be reasonable. I do not believe there is any merit in giving someone a right and then making it difficult for such a person to exercise that right. Given the circumstances I have described, I believe that 14 days is a fair and reasonable period; fairer and more reasonable than the 10 days which the noble Earl asked us to consider in the subsequent amendment. I hope that he will feel able to support the government amendment on this point.

Lord Burnham

My Lords, half a loaf is better than no bread. Amendment No. 17 is not grouped with Amendment No. 18. I give notice at this stage that I still intend to move Amendment No. 18, but I have pleasure and thanks in accepting Amendment No. 17 tabled by the noble Baroness.

On Question, amendment agreed to.

Lord Burnham moved Amendment No. 18: Page 39, line 41, leave out ("twenty-one") and insert ("ten").

The noble Lord said: My Lords, there is a mildly improper story which I should not tell in your Lordships' House, the gist of which is that we establish a principle, and it only remains to determine the sum.

On this side we started off in discussion with 48 hours against the Government's 21 days, though I cannot remember whether that was put on the face of the Bill. At an earlier stage of the Bill we went to seven days. I believe there is a real problem in that 10 days is too long. We want to get on with things. We may have two men who are given punishments, one of whom is prepared to accept it immediately and the other wishes time to think before he gives an answer.

I still believe that 10 days is too long, but I am trying to establish a price for the Government. Noble Lords have been telling me throughout discussion on the Bill that communication is easy and that it is possible for a man to be given information, consultation and everything one would care to think of, as referred to in the amendment tabled by my noble friend. He can be told that he has every opportunity to talk, and I believe that can be done within 10 days. I urge the Government therefore to come to us and say "10 days".

My noble friend, from whom I have taken over the moving of this amendment—slightly to his disgust—may want to add something to what I have said. I beg to move.

Baroness Symons of Vernham Dean

My Lords, I am not sure of the applicability of the anecdote the noble Lord, Lord Burr ham, sought to draw to our attention in moving the amendment. However, I am made of sterner stuff than that!

I do not have anything to add to the debate on the length of period that we should grant an accused person in order to lodge an appeal. It is a question of judgment and I do not believe that 10 days is a sufficient period n which to allow somebody to seek to organise an appeal. It is not necessarily a straightforward question of communication; it is a question of drawing together the grounds of appeal and obtaining legal advice. The benefit to the armed services in having properly drawn up appeals is one that we should not forget. Ill-considered appeals will not serve any purpose. We should reflect on the fact that in civilian life 21 days is considered to be the reasonable period for such appeals. To go to a period which is less than half that considered reasonable in civilian life is not a judgment we would wish to make.

I reiterate: what is the point in giving somebody a right and at the same time making it extremely difficult for him or her to exercise that right? Moreover, although the noble Lord, in putting forward this amendment, believes it will simplify the Bill, in fact it will mean more work because there will be more ill-considered appeals and more grounds for people to feel that they have been badly treated.

We have moved as far as we can to address the concerns of the noble Lord. We have done so in a spirit of compromise. If the noble Lord, Lord Burnham, does not recognise that spirit of compromise, I hope that others in your Lordships' House will. I hope that the noble Lord will not feel it necessary to press his amendment.

Lord Burnham

My Lords, I do not remotely agree with the noble Baroness. She failed to recognise my point of what may happen when two people are convicted of the same crime and may want to be treated differently. However, I do not want to prolong this issue. I may have to decide whether or not to come back to it at Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Symons of Vernham Dean moved Amendment No. 19: Page 40, line 12, leave out ("twenty-one") and insert ("fourteen").

On Question, amendment agreed to.

[Amendment No. 20 not moved.]

Schedule 3 [Amendments of 1955 Acts and 1957 Act relating to summary appeal courts]:

Baroness Symons of Vernham Dean moved Amendments Nos. 21 and 22: Page 57, line 20, leave out ("twenty-one") and insert ("fourteen"). Page 58, line 6, leave out ("twenty-one") and insert ("fourteen").

The noble Baroness said: My Lords, with the leave of the House, I shall move these amendments en bloc. I beg to move.

On Question, amendments agreed to.

In the Title:

Lord Burnham moved Amendment No. 23: Line 4, at end insert (", to ensure compatibility) with the convention rights within the meaning of section 1 of the Human Rights Act 1998").

The noble Lord said: My Lords, we come now to a last throw in our attempts to establish once and for all whether or not this Bill does all that is required of it. The wording is that of the Public Bill Office and not that of my noble and learned friend, although we had something similar.

The amendment is designed to put the responsibility for the compatibility of the Bill with the Human Rights Act and the convention fairly and squarely on the Government. On the front page of the Bill the noble Baroness made a statement that in her opinion the Bill is compatible with the European Convention on Human Rights. We are looking to put it absolutely firmly on the face of the Bill in the Title. We are not trying to achieve anything that is not in the Bill, we are simply a little unhappy that the Bill does not do what it is designed to do. I beg to move.

Lord Renton

My Lords, I see the intention of my noble friend in moving this amendment. It is desirable that the Long Title should in some way deal with the natural incompatibility between the Human Rights Act and maintaining military discipline.

Those concerned, whether commanding officers or members of courts martial, will have to give priority to the maintenance of military discipline. I am doubtful—with deep respect to my noble and learned friend Lord Mackay of Drumadoon who is a distinguished Scottish lawyer, and to my noble friend Lord Burnham—whether the word "compatibility" achieves that purpose. I have some doubt about that. I suggest therefore that my noble friend does not press the amendment at this stage. But, in the light of this discussion and what the noble Baroness may say, another amendment may be tabled at Third Reading which achieves his purpose even better.

Baroness Symons of Vernham Dean

My Lords, during all our debates so far on this Bill I have sought to make it clear that we place great store on ensuring that all our personnel benefit from their convention rights. As your Lordships are well aware, the purpose of this Bill is to address concerns about compatibility with the European Convention on Human Rights. However, we do not believe it is necessary to state that in the Long Title.

To include this amendment would only be a duplication of what the Human Rights Act 1998 already provides; that is, that all primary legislation is required to be read, in a way that is compatible with the Convention rights". That requirement is contained in Section 3 of the Human Rights Act and removes any need for provisions to be included in new Bills, stating that one of the purposes of the Bill is to ensure compatibility. The amendment is therefore unnecessary and I ask the noble Lord to withdraw it.

Lord Burnham

My Lords, was it the Snark who said, What I tell you three times is true"? I may have got that wrong.

I feel that there would be no damage in the Government re-reiterating that this Bill accords with the European Convention on Human Rights. I listened to what the noble Baroness said, and possibly with even more care to what my noble friend said. In the light of their working in unison, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.