Armed Forces Bill

HL Deb 10 May 2001 vol 625 cc1079-93

12.7 p.m.

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

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Symons of Vernham Dean.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

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

"CONTINUANCE OF THE 1955 AND 1957 ACTS

The power otherwise conferred in this Part to continue the 1955 Acts and the 1957 Act in force by Order shall cease to have effect on 31st December 2004 unless there has been brought before each House of Parliament before that date a measure to bring the discipline of all the armed services together into a single statute."

The noble Lord said: This is the first time that I have addressed a Committee of your Lordships' House during the rush for the doors. I do not think it worth while to try to make any serious points while that is going on, except to say that, The tumult and the shouting dies— The captains and the kings depart"— to which I was slightly startled to find that Father Ronnie Knox added the lines, And we are left with large supplies Of cold blancmange and rhubarb tart".

Amendment No. 1 raises a point about which we on these Benches have been making a fuss for some considerable time. To be quite fair, it has also caused concern on the now government side of the Chamber. On Second Reading my noble friend Lord Attlee and I stated in the strongest terms that it really is time that we had a unified discipline Bill for the three services.

In the debates on what is now the Armed Forces Discipline Act, my noble friends and I strongly made the point that we must have a single tri-service discipline Act. In 1966, in the debates on the Armed Forces Bill, the noble Lord, Lord Williams of Elvel, standing where I am now, raised the same point. He was supported by my noble and learned friend Lord Mayhew. In replying from the Dispatch Box, my noble friend Lord Howe said that a start had been made in 1991 after the introduction of the previous Armed Forces Act.

So attempts to introduce a single tri-service discipline Bill go back at least 10 years, and I suspect—I have not checked—as far as the original Acts in 1975 and 1977. That is too long. Not only this government but all governments are at fault for not kicking the legal people in the Ministry of Defence to get a move on.

Members of the Armed Forces spend so much time with one another—they work together and they play together—that we must have a unified discipline Act. It is with this in mind that I have tabled these two amendments. I hope that I will be able to persuade the Minister to give an assurance that we will get a move on and attempt to place such an Act on the statute book. I beg to move.

Lord Wallace of Saltaire

We strongly support the sentiments behind the amendment. We hope that the Government will give the strongest possible reassurance that it will not take another five years.

Lord Renton

We should bear in mind this further point. In my experience on active service during the Second World War, it was frequently the case that Army units, especially divisional and brigade headquarters, had attached to them officers of the RAF—perhaps only one officer—who might have a clerk attached with them. Then, as areas were occupied along the coast of Egypt and Libya, naval officers would come along from ships in the Mediterranean to co-operate with the Army. It is essential that we should bear in mind such occasions.

There has been an all-party tendency over the past 40 years to bring the Armed Forces closer together in their higher command in London. That they should have separate and different kinds of discipline, and different ways of enforcing it, really is quite absurd.

Baroness Symons of Vernham Dean

I am a little surprised by the wording of the amendments. Not only do the amendments seek to curtail the usual five years between Bills introduced to continue the service discipline Acts, they seek also to prevent those Acts being continued at all unless tri-service legislation has been introduced. I am sure that the noble Lord, Lord Burnham, has taken that point on board.

To include such a provision in the Bill would leave us with no leeway in the future; it would force us to bring forward new tri-service legislation regardless of its state of readiness and whether it was suitable to present to your Lordships and to another place. That would do a disservice to our Armed Forces. It would subordinate the overriding objective of preserving effective procedures for the maintenance of discipline to a completely arbitrary timetable.

When the noble Earl, Lord Howe, was addressing this issue, he was talking about consolidation of the three single service Acts, not about creating a unified Act, which is what we are talking about. Although I agree that consolidation would be a worthwhile goal in itself, it would not give us an opportunity to harmonise or in other ways change the body of service legislation, which is the kind of Bill that we wish to bring forward.

There is little difference between us on this issue; we all want to see tri-service legislation brought forward as soon as possible. The noble Lord, Lord Burnham, was frank enough to admit that previous Conservative governments had not taken this issue forward as quickly as they might have done. The Committee will recall that during the Second Reading debate I assured the House that we will examine the feasibility of introducing a. tri-service discipline Bill within the next three years. But, of course, I also pointed out that the key was to ensure that the legislation was appropriate for the services.

I ask the Committee to entrust to the Ministry of Defence—and, indeed, to the services themselves—the decision about when such fundamental legislation should be introduced. Given the assurance that I have noted very carefully the strength of the points made by the noble Lord, Lord Burnham, and the points made in support of the amendment by other Members of the Committee, I hope that the noble Lord will withdraw his amendment.

12.15 p.m.

Lord Burnham

I thank the Minister for those remarks. I freely admit that the amendment was tabled as a threat. Had we had more time to discuss the Bill—it has been very curtailed—we would have pursued this issue at length. I do not think it is good enough that it should be 10 years—with every prospect of another five years—before we get the legislation for which we are looking. It was a threat because the amendment was designed to introduce a specific date by which the Ministry of Defence would be compelled to come up with something.

I thank the noble Baroness for her concluding remarks. She made it quite clear that work will be done. The purpose of the amendment is that when the House comes, in 2006, to debate the Armed Forces Bill and finds that there is still no provision to introduce a consolidated or unified Bill, whoever is dealing with the matter, on both sides of the House, will be able to look hack and say that quite a fuss was made in 2001. We cannot make a longer fuss—we do not have the time—and therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 [continuance of service Acts]:

[Amendment No. 2 not moved.]

Clause 1 agreed to.

Clause 2 [Powers to stop and search persons, vehicles etc]:

On Question, Whether Clause 2 shall stand part of the Bill.

Lord Craig of Radley

I oppose the Question. I do so to draw attention to a real concern that the responsibility, and above all the authority, of a commanding officer is being eroded. I do not think that there is any division or any split between the Government and those with a long interest and long experience in these matters, but the authority of the commanding officer is of key importance to operational effectiveness.

Owing to the short notice that was given of this Committee stage and the tabling of amendments, I must explain that the thrust of the numerous proposals standing in my name and that of the noble and gallant Lord, Lord Inge, is to strike Part 2 from the Bill. I should also say that the noble and gallant Lords, Lord Inge and Lord Bramall are both with me in spirit but, regrettably, because notice of today's proceedings was so short they have been unable to alter other pressing commitments in order to attend. Indeed, I myself am forgoing a very enjoyable lunch at the Ritz today!

If the fistful of proposals in the name of the noble and gallant Lord, Lord Inge, and myself could have been tabled more elegantly, I hope that the Committee will forgive me. Shortage of time and our concern to give this topic a proper airing today in Committee are my excuse. So, with the leave of the Committee, I propose to speak to the generality of our opposition to Clauses 2 to 16 as a whole.

I greatly regret that a constitutional Bill such as this has become a victim of the procedures that apply at the end of a Parliament. The Bill must pass into law before the end of 2001. However, I consider it a great discourtesy to the Armed Forces, on whom we rely so heavily, that the significant changes to their disciplinary practices and procedures introduced in the Bill are being taken through virtually on the nod.

How do we explain such cavalier behaviour, when several months of parliamentary time will remain before the end of the new Session of Parliament after the election? The reasoning behind these amendments and those of other Members of the Committee are worthy of proper scrutiny. The views of Members in this place are being by-passed in an unconstitutional way.

However, that background alone is not enough to justify taking up the time of the Committee. There are key aspects of the content of Part 2 which concern me greatly. Because time is short, I shall confine myself to three issues. The first is the fundamental change that the authority of the commanding officer in matters of discipline should no longer rely on the inherent powers which for years, perhaps centuries, he or she has had. I suspect—but this is a matter more for lawyers than for me—that these inherent powers have been based on Crown prerogative. I believe, therefore, that the Bill, in raising concerns about long-standing reliance on the authority of the Crown prerogative in this area, may be laying open questions about prerogative authority in other areas of defence and national business.

I leave it to others far better qualified than Ito deal with the legal bones of this issue. My point is that the Government should be able to assure the Committee that they have given careful consideration to what might be called the law of unintended consequences. If there is a legal reason to doubt the authority of Crown prerogative in this area, have all other areas which may rely on it been considered? The danger of abandoning it in one key area but continuing to rely on it ill others seems a dangerous route to follow.

So if, as I assume, the so-called inherent powers of the commanding officer have relied up to now on Crown prerogative, the Committee needs to be aware of that, and to take into consideration the other areas where reliance continues to be placed on Crown prerogative before abandoning it in relation to the inherent powers of the commanding officer. I look forward to hearing the Minister's comment on this point.

My second concern relates to the statement in the helpful Explanatory Notes which the MoD issued with the Bill. In paragraph 15 on page 5 we are told that, the scope of these [inherent] powers is unclear. It is desirable that they should be clarified and put on a statutory footing". The notes state, in paragraph 17, that this would provide, that extra certainty and independent legal supervision of applications for permission to search, to avoid the risk of a successful challenge to searches being made under the European Convention on Human Rights". That seemed clear, and I drew attention to it in my Second Reading speech. In a letter commenting on my remarks—and I thank her for taking the trouble to respond so fully—the Minister said that the changes being introduced in Part 2 were not driven by the European Convention on Human Rights. She went on to say that Part 2 responds to the long-standing wish of the services to have a clear structure and definition for their powers in these areas. Well, that was news to me; and while I would not wish to challenge the Minister's information, I feel that there is something unsatisfactory about the way in which Members of this place have been given a variety of rationales for Part 2.

In her letter to me, the Minister also quoted extracts from the evidence given by the Chief of the Defence Staff to the Select Committee on the Armed Forces Bill in another place. In those remarks the CDS indicates his view that there is nothing in the Bill which would make discipline more difficult to maintain, and that some of the powers which are being given to our service police in terms of search will also help to smooth the way in which discipline will be conducted. I know that the Chief of the Defence Staff has been trying to reach me by telephone over the past 24 hours. I regret that we have not been able to speak; either he has missed me, or when I tried his number it was always engaged. He is now in Italy.

On the narrow issue of the Bill's impact on the authority of the commanding officer, I have little difficulty in accepting what the CDS said in his carefully worded evidence. He certainly could not be expected to tell the committee that it was all rubbish. My point, and that of the other noble and gallant Lords, is that this change should be seen alongside the other series of changes which have had an impact on the authority of the commanding officer in recent years. Apart from the Human Rights Act, we have seen changes in the procedures for summary punishments and for courts martial, worries about the impact of the International Criminal Court legislation, and so on.

It is the collective impact which concerns me; and it is only because I have been privileged to sit in this House for the past 10 years that I have been given a much broader canvas on which to judge these matters. Like the proverbial straws on the camel's back, little by little we are adding to the erosion of the inherent powers, and thus the perceived authority, of the commanding officer. Those Members of the Committee who were present for the Second Reading debate or who noted what the noble and gallant Lord, Lord Inge, and I said—he far more eloquently than I can aspire to—about the crucial importance of the commanding officer in all of the services' business, whether in terms of ethos, operations or leadership, as well as in matters of discipline, will appreciate the broad point.

The services rely greatly on self-discipline, and on the leadership and trust that is given by and to the commanding officer. The commanding officer has already proved himself as a potential commander and he has earned his place to take the overall charge that is placed upon him of his unit. COs have commented on the additional bureaucracy of the summary disciplinary arrangements. Part 2 of the Bill will add another large fistful of paperwork to ensure that its provisions are administered correctly. And so it goes on.

So the kernel of my concerns relates to the many specific reductions in the powers of the commanding officer in the disciplinary field, and to the fact that the authority of the CO must relate to his operational and other command responsibilities as well as to his responsibilities in the field of discipline.

Part 2 of the Bill erodes the commanding officer's authority. I shall not trouble Members of the Committee by drawing attention to the many words and phrases in Part 2 which spell that out. The clauses are all, by and large, of a restrictive nature. Given more time, I would accept that there may well be parts of the Police and Criminal Evidence Act 1984 that should be incorporated into service law. But one has to ask why it has taken over 15 years to get round to bringing such provisions forward. I surmise that it is because, at that time, it was argued successfully that Crown prerogative gave a proper defence in law and more was not needed.

My third and final point follows the discussions that we have had over the introduction of a combined Bill to cover the three services. It would seem sensible, if such a provision is to see the light of day, that the issues that are being raised in relation to Part 2 today should be held over and given the thorough consideration and debate that they so richly deserve. At the end of the day my concern—and it is a very real one—is that the erosion in disciplinary authority cannot but read across eventually to operational authority. We shall not have successful Armed Forces of the calibre that we now enjoy if we have eventually eroded the status and trust that have traditionally formed part and parcel of the role of command. I oppose the Question that Clause 2 shall stand part of the Bill.

12.30 p.m.

Lord Campbell of Croy

My Lords, I support the noble and gallant Lord, Lord Craig, in his remarks and what the noble and gallant Lord, Lord Inge, said at Second Reading on the position of commanding officers. They have pointed out that the authority and effectiveness of commanding officers could be undermined by Clauses 2 to 16.

I shall, of course, be brief in what I have to say. The considerable powers and discretion that have been granted to that level of rank—the rank, in the Army, being lieutenant-colonel commanding a battalion, or its equivalent—have been an important element in our armed services. I shall not repeat what they have said, but I should like to add the following element. The position of the commanding officer in the British Army counted for a great deal on active service and on operations in the Second World War, in which I served as a regular officer throughout; that is, from 1939 to 1945.

I could not remain in the Army because I was severely wounded and partially disabled at the end of the war. However, before then, I commanded a field battery in a Scottish infantry division for three years. I was not the commanding officer—he was the lieutenant-colonel commanding the field regiment—but I was very close to him during those three years and to the commanding officers of the infantry battalions with whom we were operating in our division. Of course, I am now out of date on military matters, having had to leave the Army in 1946 following my discharge from hospital. However, my remarks today are intended to reinforce the concern that has been expressed by very eminent former senior officers from their experience. I should like to add to that from my limited war experience during the whole of Second World War.

Lord Chalfont

My Lords, perhaps I may offer a few brief remarks in support of the noble and gallant Lord's opposition to the Question that Clause 2 stand part of the Bill. When one considers the comments that I have made in recent days in this House, it may seem strange that I should be supporting him on an issue of the sanctity of the chain of command. However, I can assure noble Lords that there is no inconsistency here. To some extent, my worry is the same as that of the noble and gallant Lord; namely, that this is a constitutional matter.

I am not speaking of constitutional law, or even of military law; I am speaking of the constitution in the sense of the broad scheme of things under which a constitutional democracy is run and governed. It seems to me that the effect of this Bill might be to bring about—in however small a way—a further erosion of what we understand as the constitution in this country. I point no finger at any government when I say this, but it appears that respect and support for the constitution in that broader sense have been, and are being, eroded very considerably. As I say, that is no fault of any specific government because it has been happening over a long period of time. However, I believe that we ought perhaps to do something to halt that erosion. As the noble and gallant Lord said, that might at some time be the straw that actually breaks the camel's back.

Therefore, my first point is that this is a matter of constitutional importance, not just of importance to the Armed Forces. However, there is also the point about the position of the Armed Forces within the over-arching constitution and the civil law. As I have said in another context in this House, military law must always be subordinate—and this is generally accepted in this country—to civil law. However, within that broad framework, we are also in danger of forgetting something else; namely, that the Armed Forces, consisting of the Army, the Navy and the Air Force, have a very special role to play. Again, I believe that we are tending to forget that and allowing the special nature of the Armed Forces, and respect for them, to be eroded.

That is especially true of the role of the commanding officer. It does not matter whether he is a CO in the Army, the Navy or the Air Force—or, indeed, whether he is commanding a battalion, a squadron of aircraft, a frigate, or whether he is the lieutenant-colonel, as the noble Lord, Lord Campbell, mentioned. The commanding officer is probably the most important person involved. Whichever service he is in, the CO is the most significant link in a very important chain of command. Therefore, anything that tends to diminish or erode the commanding officer's power and responsibility, and the respect in which he is held, is undesirable and should be resisted.

However, my real reason for contributing to this brief debate this morning is to stress something that I believe has already been said by the noble and gallant Lord. It is a great shame that a Bill of such importance should be taken during the last two days before the dissolution of Parliament. The Bill has enormous implications, not only as regards the commanding officer and his role but also as regards the whole role of the Armed Forces. Moreover, as the noble Lord, Lord Burnham, said, there is the possibility that sooner or later we might—at last—have a tri-service discipline Act. I believe that we should be discussing a Bill of this importance in that context.

I must, therefore, support the noble and gallant Lord in this respect. It seems very sad to me that we are deciding this morning within just a few minutes, in a thin House, matters that will affect not only the role of the Armed Forces and that of the commanding officer but also, possibly, the constitution of this country.

Lord Wallace of Saltaire

My Lords, the noble Lord, Lord Chalfont, raised some broad issues. I have to say from these Benches that we are in favour of reform of the constitution. As I have been occasionally involved, I note that we are spending a considerable amount of time with our NATO allies, hoping to reorganise the armed forces of the former Warsaw Pact and to insist that armed forces recognise that, in a democracy, they should as far as possible stem from civil society and be subject to some of the disciplines of civil society. That also seems to be entirely appropriate in this country.

We are advised that serving officers in the Armed Forces are not, at present, unduly concerned about these clauses but that they assume that the essential principles of the Armed Forces disciplinary procedures are not fundamentally affected. Of course, there will have to be some differences in military discipline from civilian life. However, the burden of proof is on those who would argue that the differences should continue for their own sake. We do not believe that the authority of the commanding officer is being eroded by these necessary modernisations. They are partly designed to bring such procedures into line with the terms of the Police and Criminal Evidence Act 1984 and partly relate to the European Convention on Human Rights, which we on these Benches do not see as a fundamental threat to the British constitution. We shall, therefore, oppose the various proposals for these clauses to be removed, and support their retention in the Bill.

Lord Burnham

My Lords, the erosion of power of the commanding officer is extremely worrying. I do not believe that it is right that it should be contained in a Bill of this nature, at this time. It is not right that we should be unable to discuss it in full. The noble and gallant Lord has not tabled any amendments: he has gone for the blanket policy of moving that this clause should not stand part of the Bill. He has given a perfectly good reason for doing so; indeed, it is a good method by which to discuss the problem.

Before the commencement of the debate this morning, I joined the noble Lord, Lord Wallace, in taking a cup of coffee. He asked me about the time when I was in the Army. I had to confess to him that it was 50 years ago. However, the principles of discipline have not changed in that time. I do not believe that the powers or the constitutional position of a commanding officer should be changed in the way envisaged in Part 2 of the Bill. To that extent I have immense sympathy with, and agree with, what has been said by those two great experts, the noble and gallant Lord and the noble Lord, Lord Chalfont.

However, we have had discussions with the Government through the usual channels and, with exceptions which we shall come to, we have given an undertaking that we shall support the Government in getting the Bill through at this time even though its provisions are not needed until the end of December.

I say to the noble and gallant Lord that I have total sympathy with, and totally agree with, all that he said. However, if he divides the Committee on this matter I regret that I shall be unable to recommend to my noble friends that they should support him.

12.45 p.m.

Baroness Symons of Vernham Dean

Like the noble and gallant Lord, Lord Craig of Radley, I shall address all the clauses that he opposes—Clauses 2 to 16 inclusive—as I believe that he has made generic points which apply equally to all those clauses.

It is important to explain to the Committee that Part 2 has a very clear purpose. It is to strengthen and clarify the powers of the services in relation to aspects of the investigation of offences under the service discipline Acts. The intention behind the changes is to set out those powers in detail to avoid the doubt that currently prevails. I say to the noble and gallant Lord that the Explanatory Notes do not state that the clauses are driven by the ECHR. They make clear that the change is wanted and would result in a reduction in the risk of successful challenge under the ECHR.

As regards the point that the noble and gallant Lord made on the prerogative issue, we do not consider that the changes raise wider issues about the prerogative generally. They are focused on a narrow area; that is, the powers of search of persons and personal accommodation in investigating offences. Commanding officers need greater clarity as regards where they stand. It is undeniable that for some time there has been concern among the services that the powers of search of commanding officers and of service police are not clear enough. The wish for clearer powers predates concerns about compatibility with the European Convention on Human Rights. However, in setting out the powers in legislation it makes sense to take account of the powers of the ECHR, to make them clear and to enable us to have a measure which is sufficiently robust to withstand legal challenge.

Therefore, concerns about the convention are not the reason for, or the trigger behind, Part 2 as the service police have wanted clear powers of search for some time. Indeed, the Police and Criminal Evidence Act 1984 already contains powers for most of its provisions on powers of search to be applied to the service police.

However, to have used the powers of the 1984 Act to apply these provisions by secondary legislation would not have protected the position of the Armed Forces and the position of the commanding officer in the way that we considered necessary. A key element of Part 2 is that it reserves certain powers for use by the commanding officer in, for example, enabling him or her to authorise searches of accommodation without a warrant. It would not have been possible to achieve this essential safeguard using the powers in the Police and Criminal Evidence Act as they are simply not wide enough. The Committee must consider that it would be unfortunate if we had no alternative other than invoking the powers of the 1984 Act. I am afraid that the effect of that would be the exact opposite of what is sought by the noble and gallant Lord in that commanding officers would have no reserve powers in these matters. That is not what the noble and gallant Lord would wish to see.

One of the main concerns of the services, in particular the service police, in seeking the introduction of provisions such as these is that the current absence of clear powers and procedures increases the risk of successful challenge against the admissibility in a subsequent trial of evidence seized. Evidence may be excluded from a court martial at the discretion of a judge advocate if he or she believes that it is in the interests of fairness. That power does not derive from the European Convention on Human Rights. It has always existed under the common law and under the service discipline Acts. The introduction in Part 2 of search warrants, for example, will leave evidence obtained as a result of searches less vulnerable to successful legal challenge.

I know that the noble and gallant Lord, Lord Craig of Radley, is concerned in particular about Clause 8, which provides for a judicial officer to review any evidence obtained during a search conducted without a warrant but on the authorisation of a commanding officer. The reason for that is to ensure that such evidence should be less vulnerable to a successful challenge at a subsequent court martial because it has already been examined by a judicial officer.

It is worth emphasising that the provisions in Part 2 have nothing to do with any searches other than ones carried out as part of the investigation of an offence. They do not, therefore, apply to searches and inspections undertaken as part of normal barracks discipline or for health and safety reasons. Moreover, the restrictions in Part 2 on searching premises apply only to the personal accommodation of persons subject to service law. Any searches of other parts of service property remain entirely a matter for the commanding officer. It is important to understand that the scope of Part 2 is limited in that respect.

I should also restate the Government's position in relation to the applicability of the European Convention on Human Rights to the Armed Forces, as this is clearly an issue which troubles the noble and gallant Lord and some of his noble and gallant colleagues. The remarks made by my noble and learned friend the Lord Chancellor during the passage of the Human Rights Act that, the Convention poses no threat to the effectiveness of the armed forces were mentioned at Second Reading by the noble and gallant Lord, Lord Craig of Radley. The noble and gallant Lord went on to assert that this Bill, in its present form, makes a travesty of that assurance". I have to say that I disagree fundamentally with that remark of the noble and gallant Lord. Even if these changes were being made primarily because of the European Convention on Human Rights or the Human Rights Act, it would be quite wrong to suggest that they threaten the effectiveness of the Armed Forces, any more than the Armed Forces Discipline Act has done.

The Chief of the Defence Staff, Admiral Sir Michael Boyce, spoke about this issue to the Select Committee examining the Bill in another place. Of the changes in the Armed Forces Discipline Act, he said that, there is nothing to indicate that they are affecting operational effectiveness". As an aside I was interested to read the comments of Mr Robert Key—I am sure that the noble Lord, Lord Burnham, will be interested in the comments of the honourable Member for Salisbury in another place—on his visit to the Military Corrective Training Centre at Colchester as a member of the Select Committee on the present Bill. I am sure that we all remember that Mr Key was a formidable opponent of the Armed Forces Discipline Act when it was going through Parliament last year. But he found, according to his article in Defence Review, that, the curtailment of summary discipline and the introduction of a right of appeal in last year's Armed Forces Discipline Act has led to a fall in the number of inmates consumed with poisonous simmering resentment following pedantic, harsh or unreasonable summary sentences". Those comments are worth noting given the vociferousness of the honourable member on that point. The comments offer an interesting insight. A corollary of fairer procedures is not necessarily a weakening of the system of discipline. Fairer procedures strengthen the system by increasing respect for it.

However, I must return to Sir Michael Royce's evidence to the Select Committee on the Bill. Asked about the changes proposed in Part 2, he commented, some of the powers which are being given to our Service police in terms of search will also be helpful to smooth the way in which discipline is conducted. On the whole, I think if it will have any impact at all, it should be a beneficial impact". So it was not just that he was denying that there was anything negative: he was saying that there may indeed be something positive.

I find it difficult to reconcile these informed observations with concerns that Part 2 of the Bill represents a threat to operational effectiveness. The Government's commitment to the maintenance of operational effectiveness is an unqualified commitment. I gave that commitment at Second Reading and I have done so on a number of occasions from this Dispatch Box. We do not merely pay lip service to the importance of the special circumstances of service life—those special circumstances that noble Lords who have served in the service often draw rightly to our attention. In developing our proposals for legislation, we are guided by those who have current hands-on experience of those circumstances. This is reflected in Part 2 of the Bill. It provides a clear structure for powers of search, as the services wish. At the same time, it fully recognises the realities of service life by. reserving very important powers to the commanding officer.

Perhaps I may refer again to Sir Michael Boyce's evidence to the Select Committee. He said: As I have said in other committees and in other places as well, operational effectiveness is my benchmark and my line in the sand, and I can assure you that if operational effectiveness were being affected by anything, I would make that perfectly clear". That is an unequivocal statement on which I am sure all your Lordships would place considerable emphasis.

Part 2 of the Bill is of considerable importance to the services in contributing to the establishment of a proper regime for the investigation of offences. It represents a balanced and responsible approach to the issue. On the other hand, the removal of Part 2 would just leave the services in an arguably worse position than they are in today. By means of the Bill, we shall have highlighted the deficiencies and uncertainties of the present procedures but the loss of Clauses 2 to 16 would remove the remedy that we propose. I do not consider that that is a responsible line of action, least of all if it were to be on the basis of some misconceptions which I am afraid have been advanced against Part 2 standing part of the Bill.

Lord Craig of Radley

First, I thank all noble Lords who have spoken in this short debate. The Minister has advanced a number of cogent points. If one had more time one would like to consider them; but one cannot do that.

I was happy with much of what the noble Baroness said. However, I was unhappy about the Royal prerogative issue. I think that your Lordships may want to return to that discussion at another time and in another place. I do not oppose that Clause 2 stand part.

Clause 2 agreed to.

Clauses 3 to 16 agreed to.

Clause 17 agreed to.

Schedule 1 agreed to.

Clauses 18 and 19 agreed to.

Schedule 2 agreed to.

Clauses 20 to 22 agreed to.

Schedule 3 agreed to.

Clauses 23 to 29 agreed to.

Schedule 4 agreed to.

Clause 30 agreed to.

Clause 31 [Extension of jurisdiction]:

Lord Burnham moved Amendment No. 3: Page 29, line 30, leave out "is amended" and insert "may be amended by Order in Council approved by both Houses of Parliament to confer extended jurisdiction as an emergency measure for limited jurisdiction

The noble Lord said: When times were different—that is to say, before Wandsworth—we tabled a raft of amendments on Part 4 of the Bill. It has some good things in it but we were generally unhappy. However, I understand that the Government will agree to withdraw Part 4 of the Bill—Clauses 31 and 32 and Schedule 5—and will not press that they stand part of the Bill. If the Minister can give me that assurance, I shall be happy to withdraw the amendment and all the other amendments which relate to Part 4. I am sure that she will give that assurance—but if not, après nous le déluge.

Baroness Symons of Vernham Dean

It may be for the convenience of the Committee to know that the Government will not seek to insist on the retention of Clauses 31 and 32, and Schedule 5. We remain of the view that this is a lost opportunity to make a number of beneficial changes concerning the Ministry of Defence Police. I understand that some members of the Conservative Party in another place took a similar view. However, now is neither the time nor the place to detain the Committee on detailed arguments on this. As the noble Lord indicated, I have given my agreement to the wish that he expressed: that Clauses 31 and 32 and Schedule 5 do not stand part of the Bill.

Lord Wallace of Saltaire

In those circumstances, I shall not move the amendments standing in my name on Part 4 and Schedule 5.

Lord Burnham

I thank the Minister for those remarks. I agree with the noble Baroness that this is neither the time nor the place to discuss the merits or demerits of Part 4. As she is a marvel, I simply say: Had we but world enough, and time, This coyness, lady, were no crime". I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 to 11 not moved.]

Clause 31 negatived.

Clause 32 negatived.

[Amendments Nos. 12 and 13 not moved.]

Schedule 5 [Amendments relating to Ministry of Defence Police]:

[Amendments Nos. 14 to 22 not moved.]

Schedule 5 negatived.

Clauses 33 and 34 agreed to.

Schedule 6 agreed to.

Clauses 35 and 36 agreed to.

Schedule 7 agreed to.

Clause 37 [Orders and regulations]:

Baroness Symons of Vernham Dean moved Amendment No. 23: Page 36, line 31, leave out from "Act" to "exercisable" in line 32 and insert "is

The noble Baroness said: In moving the amendment, I speak also to Amendments Nos. 27 and 29 to 33. As a result of Part 4 not standing part of the Bill, all provisions in other clauses and schedules consequential on Part 4 need to be removed. These are straightforward amendments designed to achieve just that. I beg to move.

On Question, amendment agreed to.

[Amendment No. 24 not moved.]

Baroness Symons of Vernham Dean moved Amendment No. 25: Page 36, line 33, at end insert— () an order under section 8(2),".

On Question, amendment agreed to.

[Amendment No. 26 not moved.]

Clause 37, as amended, agreed to.

Clauses 38 to 40 agreed to.

Clause 41 [Short title and commencement]:

Baroness Symons of Vernham Dean moved Amendment No. 27: Page 37, line 41, leave out "to (s)" and insert "and (4)".

On Question, amendment agreed to.

[Amendment No. 28 not moved.]

Baroness Symons of Vernham Dean moved Amendments Nos. 29 to 32: Page 38, line 13, leave out subsection (5). Page 38, line 25, leave out "or (5)". Page 38. line 27, leave out "or (5)". Page 38, line 28, leave out from "State" to "to" in line 29.

On Question, amendments agreed to.

Clause 41, as amended, agreed to.

Schedule 8 [Repeals]:

Baroness Symons of Vernham Dean moved Amendment No. 33: Page 92. lease out lines 24 and 25.

On Question, amendment agreed to.

Schedule 8, as amended, agreed to.

House resumed: Bill reported with amendments; Report received.

Then, Standing Order 46 having been suspended (pursuant to Resolution of 9th May), Bill read a third time, and passed, and returned to the Commons with amendments.