HL Deb 24 January 2000 vol 608 cc1327-44

3.6 p.m.

Read a third time.

Clause 1 [Custody without charge]:

Lord Burnham moved Amendment No. 1: Page 2, line 38, at end insert (", and (c) that having regard to all the circumstances (including over-riding operational requirements) prevailing at the relevant time it is not practicable for the investigation to be launched diligently and expeditiously").

The noble Lord said: My Lords, I am sure that the Minister will be relieved to hear that discussions about the services' medical services and the shortage of fuel will be held in another place at Question Time this afternoon, and may be referred to but will not be debated in your Lordships' House this afternoon. This afternoon we are in the final stages of what we believe to be an unfortunate Bill which is designed—and possibly achieves, but we are not so certain about that—to achieve adherence to the European Convention on Human Rights and the Human Rights Act.

Amendment No. 1 returns to a point that I have raised since Second Reading in different ways. I have raised it on every occasion and do so now with due seriousness. The measure is designed to consider the practicalities of the operation of the Bill. We have said, and we believe, that it is not practicable to apply the conditions of the Bill on active service, whatever that may mean. I have moved amendments in Sanskrit, and in any other language I care to think of, which refer to the Geneva Convention, additional protocols and Uncle Tom Cobbleigh.

I return to what I believe to be a simple point. The amendment is phrased in simple English to make it clear that where there is a difficulty in applying the terms of this Bill, a commanding officer or other persons in charge of a service element may be permitted to delay consideration of a disciplinary case until it is practicable to do so; that is to say, when the unit leaves the active service conditions and operations in which it was involved at the time the matter first arose.

As I say, we have discussed almost every aspect of this on a number of occasions. It is a matter which we take extremely seriously. We believe that the Bill should operate in a way that does not damage military discipline. Therefore, I have no hesitation in yet again moving this amendment. I beg to move.

Lord Inge

My Lords, I have taken considerable trouble to talk to the military—not only to its lawyers but to other members, particularly in the Army. I am grateful to the noble Lord, Lord Burnham, for outlining his understanding of the implications of applying the Bill under operational circumstances.

I have been assured by, what I would call, the "foot soldiers", like myself, and the Army lawyers that this matter is covered elsewhere in the amended—I stress the word "amended"—Army Act at Section 75A. Operational considerations are given effect in that Act, as they are in the discipline Acts of the Royal Navy and the Royal Air Force. I believe the amendment is unnecessary.

Lord Campbell of Alloway

My Lords, I shared the endeavours of my noble friend Lord Burnham that it was not practicable to apply the Bill on active service, a point taken by me on Report and at Third Reading of the Human Rights Bill, and by several noble and gallant Lords at Second Reading and on Report of this Bill, which I supported. Amendments Nos. 1 to 4, which are grouped, are concerned with custody, as indeed is the whole range of Amendments Nos. 1 to 9.

On Report, one has to accept that the noble and gallant Lord, Lord Carver, took the view that at times of active service and high intensity warfare, the Bill could not be made to work. But the noble and gallant Lord said that, there need not be anything in the Bill to cover that situation".—[Official Report, 18/1/00; col. 983.] On Report, at col. 1000 of Hansard, my noble friend Lord Vivian—who has had far more active experience relevant to modern conditions than I have ever had—took the view that Section 75B(4) afforded adequate flexibility in those instances where operating imperatives made it impossible to conform with the legal requirements.

The noble Baroness, Lady Symons of Vernham Dean, has given a series of important assurances. The Bill was designed, so as to be compatible with all circumstances in which the Services might find themselves". That, in a sense, remains to be seen.

She said also that, operational considerations will remain paramount". That no doubt is a firm and genuine intention. She said that commanders will, give appropriate priority to the operational imperatives of the situation",—[Official Report, 18/1/00; col. 1004.] which will not conflict with the procedures in the Bill.

As part of these assurances she said 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 this Bill".—[Official Report, 18/1/00; col. 1005.] Finally, the noble Baroness advocated the need for a single operating system in all circumstances to reduce the scope for confusion, as was spoken to by other noble Lords.

It is of vital consequence that guidance to commanding officers as to operational considerations and having regard to the imperatives of the situation should be codified—perhaps in some kind of code of practice—and that this should be made available not only to commanding officers but to all courts martial, the courts martial appeal court and the summary appeal court. Perhaps the Minister will be able to give a formal undertaking to that effect. But, if such be the case, what is the objection to primary legislation which has the authority of permanent effect until the next amendment of the service discipline Acts, which are amended regularly from time to time?

3.15 p.m.

Baroness Thomas of Walliswood

My Lords, my first duty is to apologise to the House on behalf of my noble friend Lord Wallace of Saltaire, who has been leading on our behalf on the Bill. He is absent from the House because he is today fulfilling a long-standing commitment abroad. So I will speak very briefly to the amendments of the noble Lord, Lord Burnham—although perhaps not quite as briefly as he did.

As the noble Lord said, he tabled a series of amendments to the effect of the present amendments. These reflected the anxiety in certain quarters at earlier stages of the Bill as to the ability of commanding officers to ensure compliance with the ECHR at time of war or when on active service. The noble Lord mentioned that he had tabled other amendments to a similar effect on Report. On that occasion, no less than three gallant and noble Members spoke to the effect that existing legislation, as amended, provides sufficient flexibility for commanders in the field to act in a sensible way.

During the debate on the amendment of the noble Lord, Lord Burnham, on Report, the Minister confirmed the soundness of that thinking and also assured the House that, operational considerations will remain paramount".—[Official Report, 18/1/00; col. 1004.] There is a whole paragraph to that effect, which the noble Lord can find in Hansard.

We do not support any amendment to the Bill along these lines. If the noble Lord, Lord Burnham, decides to test the opinion of the House, I will advise my noble friends to vote against his amendment.

Lord Hoyle

My Lords, I admire the doggedness and determination of the noble Lord, Lord Burnham. He has returned to this issue time after time. I hope that when he read my comments on Report he found them favourable. It appears that, once again, noble and gallant Members of the House have said to him that the issue is covered by legislation. I remind him again that the present Chiefs of Staff support this measure and that they would be against duplication of the system. Rather than the tide running for the noble Lord, it seems to be ebbing a little more against him each time he speaks. I hope that after taking everything into consideration he will not press his amendment today.

Lord Carver

My Lords, the noble Lord, Lord Campbell of Alloway, referred to the line that I had taken at Second Reading and in Committee about this issue. There was never any doubt in my mind that operational requirements would take priority; it was a question of whether the system could be made to work. I also accept that on Report I suggested that derogation under Article 15 might be enough but that there are cases in which that might be difficult to apply, as the noble Baroness said when summing up. However, on Report, I was greatly impressed with the words of the noble Lord, Lord Vivian. He spurred me on to look again more carefully at Sections 75A and 75B of the Army Act as revised by the Bill.

I draw the attention of noble Lords to the words on page 2, line 22 where it states that: After receiving a report under subsection (1) above the commanding officer shall as soon as practicable determine". The same kind of provision is made on page 3, line 35 where it states that: If a review is postponed under subsection (3) above— (a) it shall be carried out as soon as practicable". I accept that sufficient flexibility has been provided to make it possible, if constant reference to the judge advocate is not practicable under the circumstances, for the review to be delayed. For that reason, I regret to have to say to the noble Lord, Lord Burnham, that I cannot support his amendment.

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

My Lords, perhaps I may begin by assuring the noble Lord, Lord Burnham, that I should not in the least have minded discussing medical services or fuel for the Armed Forces, except that neither topic is relevant to the Bill before us. However, no doubt we shall be able to discuss those matters should the noble Lord decide at any point to table Questions on them.

The noble Lord is seeking once again to include some kind of opt-out amendment in the Bill concerning the arrangements that will permit an individual to be arrested and held in custody without charge. The noble Lord has tabled three substantive amendments, repeated three times, for each of the armed services. We addressed the difficulties with this type of amendment in Committee. I regret to inform the noble Lord that the new amendments contain nothing compelling to persuade the Government that they should be incorporated into the Bill. However, I can think of three very compelling reasons why they should not be included.

The first reason relates to Amendments Nos. 3, 6 and 9. They provide that a person may be kept in military custody without charge for more than 48 hours, because an investigation could not be launched. In effect, that could prolong indefinitely the period before which a person must be brought before a judicial officer. The effect of the drafting of the noble Lord's amendment would override the provisions in the Bill which limit to 96 hours the total custody of an individual without charge, because the wording of the amendment provides an alternative to the current provisions which include the 96-hour limit. Indeed, they are completely open-ended in terms of the length of custody without charge that would be permissible.

In relation to the convention, we have been advised that in order to comply with the principle of fairness, 96 hours is the maximum period of custody without charge that is likely to be compatible. On that point alone, it is my understanding that we do not have flexibility and I appreciate the reasons for that. A period of 96 hours—four days—is a long time in which to be deprived of one's liberty. In any event, we do not expect the 96-hour limit to create any problems because we would expect charges to be laid before someone within that period or for the person to be released while investigations continued. Furthermore, the Bill does not affect the ability of the commanding officer to restrict an individual's movements; for example, an individual could be confined to barracks.

As I have said on previous occasions, the Bill offers a great deal of flexibility in relation to timing, as several noble Lords have already pointed out. It also offers flexibility in relation to enabling the commanding officer to delegate certain of his powers. This flexibility has been developed with the services to meet those needs which I appreciate have been of great concern to many noble Lords, foremost among whom has been the noble Lord, Lord Burnham. However, the provisions have been designed to accommodate the kind of situations that we have discussed during the passage of the Bill, such as the events in East Timor, a submarine under the polar ice cap, or the demands of operational flying.

The second reason why the amendments are unnecessary is that, as drafted, what will be new Section 75A of the Army Act allows flexibility in relation to custody which may be required in difficult operational circumstances. Therefore, this has already been dealt with on the face of the Bill. The legislation allows the person who made the arrest to keep an individual in custody without charge until the commanding officer has received a report from the arresting officer advising him of the individual's arrest and has made his own decision on whether to keep the individual in custody. Additionally, the Bill requires the commanding officer to make his decision on custody only "as soon as practicable". Flexibility for operational exigencies is already on the face of the Bill, as the noble Lord, Lord Campbell of Alloway, reminded us when he referred to the words of his noble friend Lord Vivian on Report, and as the noble and gallant Lord, Lord Carver, also reminded us today.

Finally, any argument that the commanding officer should not be troubled in operational circumstances with questions of custody can be countered by the provisions in new Section 75E. In effect, this provides for the functions of the commanding officer in relation to custody to be delegated. For example, if the commanding officer of a flying station is absent for regular operational reasons, he can delegate his powers in relation to the matter to an officer under his command.

I must say that my third reason for not accepting these amendments is because Amendments Nos. 1, 4 and 7 contain drafting flaws which appear to me to be pretty much fatal and to render them inoperable. The flaws result from the very first word used—"and"—which requires the amendments to be read in conjunction with the words immediately preceding them. Those words, which are of course already in the Bill, lay down the conditions that enable the commanding officer to authorise custody. Essentially that custody is necessary to secure evidence and the commanding officer must be confident that the investigation is being conducted speedily. As I see it, because the amendments are prefaced with the word "and" to add a third condition about the operational circumstances prevailing at the time, that would mean that the commanding officer would find it more rather than less difficult to justify custody. I suspect that that was not the intention of the noble Lord. It is possible that the word he sought may be been "or". However, the House can consider only the amendment as drafted.

In any case, the overriding point I wish to make is that the Bill does not need the additional flexibility which the noble Lord purports to achieve with these amendments. The detailed proposals in the Bill, which, I remind noble Lords, have been closely developed over many months with the services who will be responsible for the operation of the new procedures, provide all the flexibility they need. For that reason, I urge the noble Lord, Lord Burnham, to listen carefully to the words of the noble and gallant Lord, Lord Inge, who told us that he has taken advice from those whose judgment he trusts. It must be said that the noble and gallant Lord has more experience in these matters than either the noble Lord, Lord Burnham, or myself. The noble and gallant Lord is satisfied on the point. Furthermore, the House is aware that the noble and gallant Lord, Lord Carver, has rightly and properly scrutinised the Bill in great detail. He, too, has expressed himself satisfied on this point. The Government are satisfied and, most importantly, all three of the armed services are satisfied. For the reasons I have given, I hope that the noble Lord will see fit to withdraw his amendment.

3.30 p.m.

Lord Burnham

My Lords, during the course of all the stages of the Bill it has been the aim of my noble friends and myself and those who are like-minded on this matter to ensure the maintenance, at the highest level, of service discipline and morale. Whatever the Chiefs of Staff may have assured the Minister—that the people who come under their command are entirely happy with the terms of the Bill—that is not my information or that of my noble friends.

Having said that, I am surprised and depressed by the speeches of the noble and gallant Lords, Lord Inge and Lord Carver, who state that they cannot see any cause for the amendment which I have put forward. I believe that they and others are wrong in their attitude to the Bill. If the Bill enables the Armed Forces to work exactly according to the terms of the European convention and of the Human Rights Act, so be it, but I do not believe that it does; nor do I believe that in marry aspects the Bill fulfils its aims; nor will it be readily acceptable to many members of the Armed Forces on the ground.

However, in the light of the attitude of the noble and gallant Lords, and very reluctantly—because I repeat I think it is wrong—I feel I have no alternative but to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 9 not moved.]

Lord Renton had given notice of his intention to move Amendment No. 10: After Clause 13, insert the following new clause—

APPLICATION OF HUMAN RIGHTS ACT 1998 TO MILITARY OFFENCES

(" No provision or the Human Rights Act 1998 shall prevent members of the Armed Forces from being found guilty of offences against good order and military discipline.").

The noble Lord said: My Lords, I can see that the noble and learned Lord the Attorney-General wishes to intervene.

The Attorney-General (Lord Williams of Mostyn)

My Lords, I think that the noble Lord, Lord Renton, knows what I am going to say. I am advised by the House authorities that Amendment No. 10, which the noble Lord was about to move, is not relevant to the subject matter of the Bill. As your Lordships will know, the Companion states quite clearly that the amendments must be relevant to the subject matter of the Bill and that the advice of the Clerks should be taken in relation to matters such as these. The Clerks in the Public Bill Office advise that whereas this Bill deals with matters of criminal procedure, the amendment does not confine itself to matters of procedure, but extends more generally to the application of substantive criminal law in military courts and the rights of defendants there. The advice therefore is that the amendment is not relevant to the Bill.

We all have a responsibility to see that our procedures are governed by the House as a whole. Accordingly, with that short explanation, which I hope neither the noble Lord, Lord Renton, nor your noble Lordships, think is intended to be anything other than helpful, I ask the noble Lord, Lord Renton, to accept the advice which the Clerks have offered, and not to move Amendment No. 10. I do understand that the Clerk of Public Bills has given notice to the noble Lord, Lord Renton, that he was writing with this advice.

Lord Burnham

My Lords, before the noble and learned Lord sits down, and before my noble friend, Lord Renton, replies, perhaps I may ask the noble and learned Lord whether, if the amendment of my noble friend was phrased in the terms of his amendment at Report stage, which in fact he withdrew, it would be acceptable and whether at this stage in the proceedings a manuscript amendment in those terms would be acceptable. I have to say that I have not spoken to my noble friend Lord Renton on this matter.

Lord Renton

My Lords, before the noble and learned Lord replies, perhaps I may say that the amendment which I have tabled for Third Reading is narrower in its effect than the amendment that I tabled in Committee, and tabled again but withdrew before it was discussed on Report. Perhaps I may also say that the amendment that I have tabled today is intended to help the Government by resolving the conflict which will arise, admittedly on rare occasions—but it must be covered in case it does arise—between a conviction for a breach of good order and military discipline on the one hand and the assertion of the rights of the accused person under the Human Rights Act on the other hand.

One should draw attention to the fact that the Clerks at the Table allowed the broader amendment for the Committee and Report stages. The broader amendment referred to "proceedings", but this amendment refers to merely a part of the proceedings—although a pretty vital part—namely, a conviction. It is utterly illogical, especially when the Long Title of the Bill refers to, findings made or punishments awarded on summary dealing or summary trial; and for connected purposes". Could there be a more connected purpose than a conviction?

Perhaps I may conclude on a purely personal matter. I have been in Parliament for 54 years. I have been in your Lordships' House for 20 years. As far as I can remember, this is the very first time since I came to your Lordships' House that an amendment of mine has been rejected by the Table.

Lord Williams of Mostyn

My Lords, I am sure that that is right, because although the noble Lord arid I may have disagreed on matters of principle, I do not think that we have ever disagreed on matters of procedure. What I am transmitting is the advice that has been given. I respectfully repeat the observation that I made earlier: the Companion makes it perfectly plain that the advice of the Clerks should be taken in relation to matters such as these.

I take the noble Lord's point that this is a different amendment in terms of phraseology from the one that was accepted earlier, as he put it. However, the very firm, unambiguous advice that we have—I know that it has been transmitted to a number of your Lordships—is that this is not an amendment capable of being relevant. That does sound rather harsh and discourteous. It is not intended to be. "Relevance" there is used, as I understand it, as a term of art; namely, outside the scope of the Bill. Despite what the noble Lord, Lord Renton, says about connected purposes, our perfectly clear advice is that that does not make this a relevant amendment capable of being discussed.

The noble Lord, Lord Burnham, asked whether at this stage it would be possible to have a manuscript amendment in different terms. I understand that it is not possible.

Lord Renton

My Lords, did the noble and learned Lord say "possible" or "not possible"?

Lord Williams of Mostyn

It is not possible, my Lords, at Third Reading.

Lord Campbell of Alloway

My Lords, with the leave of the House, perhaps I may make a constructive suggestion. If, for example, the noble Baroness, Lady Symons of Vernham Dean, were able to give the kind of undertaking which I suggested as to a code of practice, would that not go a very long way to meet the concerns of my noble friend Lord Renton?

Lord Williams of Mostyn

My Lords, I do not think that I can answer for the noble Baroness as I am addressing the House at the moment, and I am not sure whether I can answer for the noble Lord, Lord Renton, when such a question is put to me, perfectly understandably and courteously. It is really a matter for the noble Lord. What I would say is that this is an important matter. We do regulate our own procedure. The advice is perfectly plain. I would, therefore, after this brief discussion, invite the noble Lord, Lord Renton, not to persist with this amendment.

Lord Renton

My Lords, perhaps I may have your Lordships' leave to speak again because this is an important matter. The noble and learned Lord seemed to suggest that the advice of the Clerks at the Table had to be accepted. But that assumes that they are always right. I must say that I would have put much greater faith in the judgment of the noble and learned Lord than in any of the officials of the House in view of his tremendous experience and learning—and not all of them are even lawyers. With great respect, the reasons which I have put forward carry weight. I cannot use another expression. To say that the amendment, which is more narrow than the one accepted for the Committee stage and which deals with a conviction rather than with proceedings—convictions are merely part of proceedings—is irrelevant is, with the deepest respect, invalid.

Lord Williams of Mostyn

My Lords, I am not sure how much I can usefully further contribute. I have to say—I think it will be the general experience of the overwhelming majority of your Lordships—that I have always found the quality of the advice given admirably conscientious and thoroughly well considered. I know that the noble Lord will not wish to suggest anything to the contrary. I am not going to offer my own advice. It is not appropriate for me to do so. I am simply making two points to your Lordships. First, I did not say that the advice had to be taken; I said that the Companion makes it clear that the advice should be taken. Secondly, the reason the amendment is not relevant—that is not, I repeat, an offensive word; it is a term of art: in other words, the amendment is outside the scope of the Bill—is that it does not limit itself to procedure, which your Lordships have discussed on quite a number of occasions. It extends to substantive criminal law and the rights of defendants there. That is why it is not an apt, appropriate or relevant amendment to the Bill.

[Amendment No.10 not moved.]

Clause 18 [Right of appeal]:

Earl Attlee moved Amendment No. 11: Page 39, line 34, leave out ("in respect of whom").

The noble Earl said: My Lords, in moving Amendment No. 11, it may be convenient if I speak also to Amendments Nos. 12 to 26 inclusive. I remind the House that I have an interest as I am a serving TA officer with powers of summary jurisdiction that I exercise on behalf of my commanding officer.

We return to the key question of how long a serviceman should have to exercise his right of appeal under Clause 18. Given a free choice, I would not provide for a right of appeal against summary jurisdiction. It is important that your Lordships understand the effect of such a provision. Unlike in civilian life, the various parties to a case cannot avoid each other. Indeed, witnesses and the accused may be friends, I have myself been in that situation. The commanding officer will be in a difficult situation from the moment the serviceman is warned off for disciplinary action until that action is complete. For instance, for obvious reasons he will be reluctant to talk to a group of his own soldiers if the accused is within that group. Currently, under summary jurisdiction, disciplinary action is complete when the CO, after awarding sentence, gives the order "March out". It is then water under the bridge; it is over. It is to be hoped that there will not be a repeat incident and that life in the unit can get back to normal. The whole process, ideally, will be complete within a week.

Clause 18, as originally drafted, provided for 21 days to launch an appeal. This would have meant disciplinary action taking about a month to be completed, which is far too long. Quite apart from the difficulties I have just mentioned, in a serious case the CO may be minded to remand for court martial rather than risk having, his own award reduced by the summary appeal court. During operations, of course, this might well result in the serviceman being sent home, his career seriously damaged.

In Committee I moved an amendment providing for seven days in which to launch an appeal. The Minister recognised the strength of my argument and suggested that 10 days was the absolute minimum. She pointed out the need to seek legal advice, determine the grounds for appeal and then actually lodge the appeal. On Report the Minister moved her own amendment providing for two weeks in which to launch an appeal. Whether I have successfully tempted her with 10 days today, I know not.

The problem is that if we are to have this unwelcome provision of Clause 18, we have to strike the right balance between providing an effective and compliant right of appeal on the one hand, arid satisfying the paramount needs of maintaining military discipline and morale, on the other—in short, the moral component of fighting power. If we fail to achieve that, we shall be sowing the seeds of a future military disaster.

In order to meet the needs of discipline and morale, we need to complete the disciplinary process as quickly as possible. However, in a very few cases this will not be possible due to the serviceman being unhappy with the outcome. My amendment provides that the serviceman can certify to his commanding officer that he will not he appealing. He will be effectively stating that he is content with the outcome, that he knows he has done wrong, and that he has been dealt with fairly. He will, of course, need time to reflect, so he will not be able to certify until 24 hours after the CO has completed summary dealing. He then has a further six days in which to certify. During the six-day period he can also withdraw his certificate, which he might want to do, possibly after taking legal advice. Even after this period his right of appeal is still not completely lost as the summary appeal court can still consider an appeal out of time.

The new provisions would enable the vast majority of cases to be dealt with quickly. There will be a few cases where the serviceman is not content and will wish to take legal advice. In those cases he will not sign the certificate. Even if he does, the accused's legal adviser can cancel the certificate, provided he does so within six days. He could even do so by fax. That could be provided for in the rules of procedure. After taking legal advice, the accused may decide not to appeal, in which case he need do nothing other than allow the period in which to appeal to run its course.

Finally, in a very few cases there will be genuine difficulties either with the finding or the sentence. During previous stages, the Minister drew attention to the time required to launch an appeal. Because there will be so few cases falling into this category, we can be more generous with the time available to launch an appeal. The amendment therefore provides 21 days, as originally provided for in the Bill. These arrangements ensure that the Bill will still be compliant with the ECHR.

There may be some concern about the extra forms and administration that the new arrangements would entail. For the Army, the UNICOM computer system which already automatically generates the charge forms will be able to produce the certificate at the same time. No doubt the other services have similar facilities on their computer systems. There are often administration actions after summary dealings, providing a convenient opportunity to sign the certificate.

Some noble Lords may be concerned that a serviceman may be forced to sign his certificate. At Report stage I tabled an amendment to deal with the possibility of a serviceman being pressurised into withdrawing his election for court martial. My modest experience of service life has informed me of what actually happens in the real world. However, I was firmly put in my place by the Minister, who said: 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".—[Official Report, 18/1/2000; col. 1013.] The Minister was obviously very confident about fair dealing by the services.

Strongly to advise a serviceman not do something that would in fact severely disadvantage him is one thing. Unfairly to pressurise him to sign a certificate that would give up his right of appeal would be quite another. I do not believe that any officer would do so; nor, I am sure, does the Minister.

If these amendments were to be agreed, the Bill would be significantly improved. In practice, there would then be hardly any difference in the current summary dealing arrangements, but the Bill would still be compliant with the ECHR. I beg to move.

3.45 p.m.

Baroness Symons of Vernham Dean

My Lords, I appreciate that the amendments arise from a desire to ensure that the authority of the commanding officer and his ability to maintain discipline are not undermined. It is claimed that the undermining effect would result from the gap between the award of a sentence by the commanding officer and its commencement. I remind the House that there will be such a gap only where a sentence of detention is handed down. All other sentences will commence immediately.

I understand that the purpose of the amendments is benign. However, I cannot recommend that your Lordships agree to them, for two reasons. The first is that they are simply not necessary. We believe that most service personnel who have been dealt with summarily will accept their punishment and will want to get it over and done with, just as they do now. Because of that, we thought that it would he unacceptable to insist that an individual waited for the full 21, now 14, days before he or she was allowed to begin the sentence, if that is what the individual wished to do. We have therefore included a provision in Schedule 3 of the Bill which allows an individual to begin his or her sentence of detention straight away. It does not require him or her to sign and lodge any certificates. He or she can simply get on with it.

The second reason I cannot accept the amendments is that I am afraid they are flawed, in so far as they do not provide an adequate link with the current provisions in the Bill relating to commencement of sentences of detention, and will not necessarily work to achieve what we believe is the purpose behind the noble Earl's amendments.

The amendments as drafted do nothing more than allow an accused to submit a certificate to the commanding officer saying that he or she does not intend to appeal. But it is not mandatory for an individual who is accused to do that. The amendments do not in any way compel an individual to make a decision whether or not to appeal in seven days. An accused may still choose not to appeal but not mention that to anyone for a full 14-day period; or he or she may take the decision after nine, 10 or 11 days and seek to begin the sentence then.

Moreover, the amendment is flawed in so far as it does not require an individual who has certified that he or she does not intend to appeal to begin the sentence before the expiry of 14 days. Presumably, the lack of compulsion upon the accused then to begin the sentence defeats the very purpose of the amendments tabled by the noble Earl.

I have assumed that the purpose of the amendments—in many ways a very worthy purpose—is to help to accelerate the carrying out of justice. The noble Earl made that clear in introducing his amendments. However, we find ourselves again in a position of having to examine the terms of the amendments as drafted. I fear that they fail in their own terms. They are simply not drafted in a way that would ensure that matters were expedited in the way in which the noble Earl believes they would be. I suspect that the deficiency is in the drafting, and that defeats the purpose of the amendments.

I have little to add as to whether we ought to revert to an appeal period of 21 days. The services have agreed that we can live with the status quo; namely, the 14 days now on the face of the Bill. I see no reason to tinker with the Bill again unless it is entirely necessary.

I do not want to appear ungracious about the noble Earl's amendments. I know that he has tabled all of them with the best interests of the services in mind. I am grateful to him for that, and for the explanations that he has provided on the amendments. However, I assure the noble Earl and his noble friend Lord Burnham that the provisions have been carefully scrutinised by the services, and they are satisfied that no further changes are necessary. I hope that on that basis the noble Earl will feel able to withdraw his amendment.

Earl Attlee

My Lords, I am grateful to the Minister for that response. I was not so concerned about the gap between the imposition of the sentence and the summary dealing. The problem for all officers involved and for the unit is not knowing when the issue is over and whether or not the soldier will appeal. I deliberately designed the amendment so that it was not mandatory to decide. I knew that it was not mandatory. If an individual wanted to take the full 21 days to decide whether to appeal, that would be perfectly in order. If on the other hand he wanted to say, "Yes, I want to take it on the chin", he could then sign a certificate and life could return to normal.

The amendment was designed to be helpful in seeking another way to reduce the period of uncertainty. I am slightly disappointed that the Minister did not like the thrust of the amendment, although I can understand her dislike of the drafting. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 12 to 24 not moved.]

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

[Amendments Nos. 25 and 26 not moved.]

An amendment (privilege) made.

Baroness Symons of Vernham Dean

My Lords, I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Symons of Vernham Dean.)

Lord Burnham

My Lords, the Minister has claimed that the ECHR and the Human Rights Act are not the only reasons for the Bill. I hope that the belief that these are the reasons is correct, for if they are not this is an even worse Bill than we thought. The argument that one of the reasons for the Bill is to fall in line with modern thought is a poor one. It fails to recognise that the military ethos is different from the civilian. In signing on to join any of the Armed Forces, a man or woman voluntarily gives up a number of rights as a citizen in favour of military efficiency and the ability to do his or her job in the way that is expected. A serviceman is entitled to his rights under the Human Rights Act, but he must also be expected to give up some of his freedom of action.

That being the case, it is essential that the Bill fulfils its main function; namely, to ensure the military discipline comes into line with the terms of the Human Rights Act. It is clear that the Chiefs of Staff have been convinced that that is the case; the Minister has told us so. However, a number of officers with great experience of the Armed Forces and of military discipline are not so convinced; nor are some of my noble and honourable friends who are learned in the law. My noble friends would no doubt say so were they not exercising their legal expertise elsewhere. I seem to suffer from that.

The Government have made it clear that they are in a hurry: they want to have the Bill in place and enacted by the time the Human Rights Act comes into force in October. My honourable friends in another place, who have yet to have the opportunity to debate the Bill, recognise the timing problem, but are far from happy about the way in which the Bill has been framed. Irrespective of what is resolved today in this House, they are likely to argue against it in principle.

My noble friends and some noble and gallant Lords have at various stages during the passage of the Bill moved amendments which have attacked its worst features. But, having got to the end, we are still deeply worried, having failed to persuade the Government to make any substantial changes to the principles which govern it.

The Bill may damage the Armed Forces in a way that is irrecoverable. It introduces changes which will strike at the ethos of military discipline. When an individual is on a charge which renders him liable to face a court martial and a custodial sentence, it may well he that in some cases—it will not arise in every case, or possibly even in the majority of cases—he is a bad man. If such a man can taunt his commanding officer or defy the requirements of discipline without danger of immediate retribution, it must damage discipline and the morale of the whole unit.

One has in mind the old adage: act in haste, repent at leisure. The deadline of 1st October is clear, but if, as we believe, much of the Bill is unnecessary it is better to withdraw it and re-examine it fully. I am not so naive as to believe that the Government will agree to that just because I suggest it, but they may do so before the Bill reaches another place. There are many flaws in the Bill as we have pointed out during its passage through your Lordships' House. The Opposition's case is that it is only common sense to withdraw the Bill for further examination. If that happens and the aims of the Bill can be shown to be fulfilled, I believe that it will be given a speedy passage through both this House and another place. The Bill has too many flaws, which I shall not reiterate because they have been debated at every stage.

As a general point, it has been made clear that the various service discipline Acts are a hotchpotch which even the Manual of Military Law (in the case of the Army) cannot disentangle. At Report stage I moved an amendment which sought to reconcile the Acts. I did so deliberately, knowing that it would not be accepted, nor with any intention that it should be, but in the hope that the Minister would give us comfort by agreeing that this would be done in the quinquennial Act next year. This she sadly failed to do, saying only that her department would get down to what was an undoubted problem after that legislation had been introduced. Clearly, the Government need time.

A number of my noble friends, including my noble friends Lord Kingsland and Lord Campbell of Alloway, have drawn attention to the words of the noble and learned Lord the Lord Chancellor during Third Reading of the Human Rights Bill. His assurances that the ECHR posed no threat to the effectiveness of the Armed Forces have clearly been ignored in this Bill. It would have been agreeable to hear from the noble and learned Lord what he had to say on the subject, but we have not heard from him. Clearly, the Government need time to consider what he said then.

All these points combine to cast doubt upon the effectiveness of the Bill and reinforce the suggestion that the Government would be well advised to wait and look at it again. As I began by saying at Second Reading and have said ever since, this is a bad Bill and I hope that the Government will put a wet towel round their head and think again. In the mean time, reluctantly I am content that this Bill should be passed to another place.

4 p.m.

Lord Campbell of Alloway

My Lords, as this Bill passes I acknowledge with gratitude the constructive and courteous manner in which the noble Baroness has dealt with it. I also respectfully ask that the Government reconsider the amendment moved at Report stage to set up an Armed Forces human rights court when the services Acts are amended by primary legislation for consolidation. That amendment had the support of my noble friend Lord Kingsland, who pointed out that it was wholly consistent with the proposals of the noble and learned Lord the Lord Chancellor at the Third Reading of the Human Rights Bill. It also had the support of the noble and gallant Lord, Lord Bramall, my noble friend Lord Renton and my noble friend Lord Burnham on the Opposition Front Bench. The object of the amendment was not, as stated rather ungenerously by my noble friend Lord Burnham, to get in first and to generate a full-blooded debate".—[Official Report, 18/1/00; col. 991.] The true object was to test whether the MoD's solution was the best one as expounded and accepted by the noble and gallant Lord, Lord Craig of Radley. At all events, is it not evident from the shape of the Marshalled List today and the short conduct of this debate that that amendment served to clarify the issues and the purpose for which it was designed?

Baroness Thomas of Walliswood

My Lords, I am sure that my noble friend Lord Wallace would wish me to thank the Minister on his behalf for the courtesy that she has extended to everyone who has taken part in the Bill, both in this Chamber and outside. The House will be aware that we have supported the passage of this Bill in general and in particular. For my part, the time that I have spent on the Bill has been extremely educational. I have learnt things that I never thought I would learn under any circumstances, and I am sure that I am the better for it. We wish the Bill well.

Lord Burnham

My Lords, with the leave of House perhaps I may rise to speak again. I have been more than ungenerous to the noble Baroness—I make no political point of any kind—in failing to mention the immense help that she has given during the passage of this Bill, for the letters that she has written on various points and her assistance throughout. I hope that the whole House will join with me in thanking her for all that she has done.

Lord Renton

My Lords, I too endorse the way in which the Minister has handled this Bill on behalf of the Government. We have not agreed with the noble Baroness, but we have found her open-minded and, within her limitations—I refer to the Minister's political limitations, not her ability—helpful. During Committee stage the noble Baroness said: I can assure the noble Lord [Lord Renton] that there is nothing in either the Act or the Bill to prevent proceedings against good order and discipline. It would clearly be of great concern to the services and to the Ministry of Defence if that were to be the case".—[Official Report, 16/12/99; col. 383.] Having studied this matter and listened to all else that has been said in your Lordships' House during various stages of the Bill, I remain worried. I am concerned that the conflict between the Service discipline Acts and the Bill on the one hand and the Human Rights Act 1998 on the other does not appear to have been resolved. If it is the hope and expectation of the Government that somehow a finding by a commanding officer, court martial or appeal committee clearly shows that there has been a breach of military discipline and the accused person points to the relevant provisions of the Human Rights Act 1998, confusion will result.

I agree that these provisions would give rise to conflict and confusion only occasionally, and perhaps I may identify them. They are Article 10, Freedom of expression; Article 11, Freedom of assembly and association; and, if one considers it carefully, Article 14, Prohibition of discrimination. Article 14 states: The enjoyment of the rights and freedom set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status". That is very wide. All kinds of circumstances could arise in which people would maintain that that is contrary to the attitude they had as members of the Armed Forces.

Despite all the Minister has done, I hope that the noble Baroness will listen to my noble friends' remarks about the need for further thought on the Bill. It would be terrible for us to risk giving rise to a conflict. When two Acts of Parliament are abundantly plain but in conflict, they must be reconciled with each other. It has happened in the past time and again. It will happen from time to time always. When national security is at stake, the conflict must be dealt with.

Baroness Symons of Vernham Dean

My Lords, I thank noble Lords for their kind words. The passage of the Bill through your Lordships' House has been an example of how the process of debate and scrutiny can illuminate the inner details of a piece of draft legislation. If I can dare to admit this—I think that I can; the noble Baroness, Lady Thomas, has done so already—my understanding of the Bill has increased enormously as a result of participating in the debates.

I had the impression, in particular when listening to some of the contributions at Report stage, that others, too, had cause to examine even more closely than previously the fine detail of the Bill. It would probably be difficult to claim that we have achieved a true meeting of minds as regards some parts of the Bill. I thank your Lordships for the hard work on the amendments tabled and the well argued contributions which have helped to elucidate so much of the Bill.

I thank the noble Lord, Lord Burnham, and the noble Earl, Lord Attlee, who have travailed so hard in the quest of the elusive grail of the opt-out clause. They have rarely appeared to be as convinced by my arguments as I would have hoped. I thank too the noble Lords, Lord Campbell of Alloway and Lord Renton. They have constituted an occasional autonomous but highly independent faction on the Opposition Benches. Some admirable probing amendments have shed light on the inner recesses of the Bill.

I thank, too, the noble and gallant Lords, Lord Bramall, Lord Carver, Lord Craig of Radley and Lord Inge, for the insights they have contributed based on the accumulation of a substantial number of years of experience. I hope that they now have greater confidence that what they value so much in Armed Forces discipline will not be lost.

I thank the noble Lord, Lord Wallace of Saltaire, the noble Baroness, Lady Thomas, and their colleagues on the Liberal Democrat Benches for their welcome support. I thank warmly, of course, my noble friends whose presence was initially perhaps somewhat spasmodic but who have rallied to the cause as the Bill progressed. In particular I thank my Bill team: the combination of officials, lawyers, administrative people and military people who have helped so much in the passage of the Bill. I thank them for their patience with me, for looking again and again—and, I assure noble Lords, again—at whether we could meet some of the well expressed fears and criticisms of the Bill. They have worked extraordinarily hard. The noble Lord, Lord Burnham, urged them to work very hard over the Christmas period. They did, and have continued to do so since. I thank them for everything they have done towards the progress of the Bill. We can now send the Bill on its way. I, for one, shall be very interested indeed to see what another place makes of it.

On Question, Bill passed, and sent to the Commons.