HL Deb 08 July 2003 vol 651 cc209-18

7.37 p.m.

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach) rose to move, That the draft order laid before the House on 28th April be approved [18th Report from the Joint Committee].

The noble Lord said: My Lords, the order is an essential part of the process by which Parliament continues in force the service discipline Acts. The main element of that process is the five-yearly Armed Forces Acts. The most recent of these, the Act that we passed in 2001, extended the lives of the Army and Air Force Acts 1955 and the Naval Discipline Act 1957 for a further five years. However, this is subject to both Houses approving an order such as this one in each intervening year. The service discipline Acts provide the statutory basis for discipline in the Armed Forces. Because of that they are of critical importance, and so therefore is this order, as the means of ensuring that the discipline Acts remain in force. The draft order was approved in another place on 1st July.

The Explanatory Memorandum accompanying the order addresses its compatibility with the rights provided under the European Convention on Human Rights. The order raises convention issues only in that it continues in force three Acts that have been developed over the years, by successive administrations, to reflect the rights set out in the convention. In last year's debate, I mentioned the European Court of Human Rights judgment in the case of Morris v the United Kingdom. That court had taken the view that the procedures for post-trial review provided for in the service discipline Acts were not compatible with Article 6 of the convention. That was on the basis that the involvement of non-judicial service authorities in the review of court martial findings and sentences impaired the independence of the court martial. They took that view even though the process is intended as a safeguard for the accused.

I advised the House last year that we had not yet decided how to react to that judgment. I did so because the same issues concerning post-trial review were also being addressed by your Lordships' House in its judicial capacity. We naturally wanted to await their Lordships' judgment before taking a decision on the future of the review procedure.

As it happens, that judgment, in the case of Boyd, Hastie and Spear, expressed a positive view of the procedure. It accepted that post-trial review served as a safeguard for the accused. The judgment also acknowledged that any changes made as a result of the review process were themselves appealable, so that the courts would be able to have the last word on the cases concerned. In formulating their own judgment, their Lordships were fully aware of the earlier Strasbourg judgment in the Morris case.

Because of the judgment by the Appellate Committee, we are able to say this year that the service discipline Acts are compatible with the convention rights and that so also is the present order continuing the Acts.

So where does that leave us? The issue of the compatibility of the review procedure has been raised again in the case of Grieves. Because of the conflicting judgments in the previous two cases, the Grieves case is going to be heard by the Grand Chamber of the European Court of Human Rights. The hearing will be later this year. It would, of course, be inappropriate to anticipate what this further judgment will say or to consider at this stage how we might react to it, although we are keen to have the issue settled.

One conclusion we can draw from their Lordships' judgment is that it illustrates how valuable it can be that our domestic courts are now more readily able to address convention points, following the Human Rights Act. The Grand Chamber of the European Court will now have the benefit of the arguments set out in the Appellate Committee's judgment. This has not been the case with previous cases concerning our military justice system that have gone to Strasbourg. We should see this as a positive advance.

I should now like to move on to our plans to replace the service discipline Acts with a single tri-service Act. This is in order to provide a framework of Armed Forces legislation that will better meet the future needs of the services.

We are continuing to develop policy for the proposed new legislation. The focus remains on establishing how best to harmonise the services' differing disciplinary powers and procedures. This is so that the tri-service Act will fulfil the objective of improving the administration of discipline where the services operate together. We are looking closely at the arrangements for summary discipline and for courts martial. In doing so, we are aiming to build on those aspects that are common between the services, while seeking to ensure that their requirements are appropriately reflected in the new procedures.

At the same time, we are looking at the other areas covered by the legislation, such as the system for members of the Armed Forces making complaints. This is at present essentially the same in all the services. However, the tri-service Act will be an opportunity to try to develop procedures that better meet the likely future expectations of our people.

The Government and the Armed Forces attach considerable importance to the tri-service Act project. This is reflected in the substantial resources that are being devoted to working out both the principles and the detail of the legislation. Although the work on policy development is taking a little longer than we had envisaged, this is not affecting our overall timetable. In any case, as I know the House will readily agree, it really is essential that we get the policy right. Nevertheless we hope that the next five-yearly Armed Forces Bill, due in the 2005–06 Session, can be the vehicle for the tri-service legislation. This will obviously be subject to the availability of parliamentary time for what is expected to be a very large Bill.

I know that the noble Lord, Lord Vivian, is concerned about consultation on the Bill before its formal introduction. I do not intend today to outline what form such consultation will take. It is, if I may say so, a little early to do so for a Bill which is most unlikely to be introduced in either of the next two Sessions. We shall keep the options under review, and I have little doubt that nearer the time we shall discuss these through the usual channels.

However, I can assure the noble Lord and the House that we fully appreciate the depth of experience and expertise on these matters in your Lordships' House. It will certainly be our intention to assist the House by providing details of the main proposals for the tri-service Act once we have firmed these up. As I suggested last year, I imagine that this alone will be sufficient to generate reactions of various sorts from noble Lords.

Discipline in the Armed Forces is not a goal in itself. It serves the vital function of underpinning operational effectiveness. I scarcely need to remind this House of how both the effectiveness of our forces and their discipline have recently been put to the most demanding of tests. They have come through with flying colours.

Our attention in the past few months has naturally been focused on the operations in the Gulf region. However, I know that the House would not want for one moment to overlook what the men and women of the three services do on our behalf, wherever they are serving at the time. They are among the nation's most priceless assets, and I am sure that the House will once again wish to join me in paying tribute to them. I beg to move.

Moved, That the draft order laid before the House on 28th April be approved [18th report from the Joint Committee].—(Lord Bach.)

Lord Vivian

My Lords, I am most grateful to the Minister for moving the order. I am grateful also for the order which will follow in due course. I wish to speak to both orders. The first concerns the annual continuation order for the Army, Air Force and Naval Discipline Acts and the second concerns the Armed Forces (Review of Search and Seizure) Order 2003. From these Benches we support these two orders and I am grateful to the Minister for his clear explanation of the first order. I have no doubt that he will also clearly explain the second order.

I am sure that I do not need to remind your Lordships of the critical importance of high morale for our Armed Forces, which consists of the fair application of military discipline, good sound training and high military ethos. The efficiency and state of morale of a regiment is the sole responsibility of a commanding officer and for that reason such military discipline powers are vested in him. If we undermine those powers or reduce them in any way, we shall destroy the ethos and morale of regiments and may be left with inefficient regiments that may not be successful in times of conflict. I sincerely hope that no further amendments will be made to the summary discipline powers of a commanding officer and no more changes made to the courts martial system.

Throughout the drafting process of the new tri-service Bill mentioned by the Minister, I can only hope that after every clause has been drafted the question is asked: "Have we undermined or reduced the powers of a commanding officer in any way"? Should the answer be in the affirmative, the clause really must be reexamined to prevent those powers being reduced. The new Bill will be of such importance that every attempt should be made to retain the effectiveness of the military discipline system, ensuring that commanding officers retain their full powers.

I have a number of questions to ask but I shall keep my remarks short. First, I shall deal with the continuation order 2003 and then with the search and seizure order. When we processed the 2002 continuation order about a year ago, I covered a number of points that do not yet appear to have been followed up, but I expect that in due course they will be resolved.

Could the Minister expand on what progress has been made in the drafting of the tri-service measure so far? The Minister will recall that he said that by this year the policy development stage should be complete and that he would consider whether it would be possible to publish information about the Government's proposals. Is the policy development stage now complete?

Last year I made the observation that due to the nature of the three services and their different roles there may he a need to introduce some parts of the Bill which will be applicable only to a specific service. Could the Minister say what progress has been made in relation to the possible need for that?

This is an opportunity to comment on some disciplinary matters that have occurred in Iraq over recent months. It has been reported that two soldiers were returned from Iraq because they questioned the legality of the war and yet it would appear that no disciplinary charges will be brought against them. Could the Minister say if there is any truth in this allegation and, if there is, what are the reasons for not bringing military charges against them? A second point for concern is the allegations against a number of British soldiers who may have committed serious crimes against Iraqi prisoners of war. Will the Minister assure the House that if, as a result of investigations, the case is substantiated, the strongest possible action will be taken against them if they are found to blame?

I move to a matter that I raised last year concerning the International Criminal Court. The Minister informed me that the complementary provisions of the statute whereby we have primacy of jurisdiction in cases where our nationals are accused provide the protection that our service personnel require. He went on to say that, in other words, if the UK decided that there was no case to answer, then the International Criminal Court would not have jurisdiction unless it could claim that the United Kingdom was deliberately shielding war criminals or that the justice system had broken down. It would appear that the International Criminal Court could misinterpret or misunderstand the UK position of "no case to answer", with the understanding that the UK was unwilling or unable to proceed with a prosecution. If that happened, it could give rise to the International Criminal Court claiming jurisdiction over such an incidence. Will the Minister kindly give the House further reassurance on this issue?

I turn briefly to the second order, the Armed Forces (Review of Search and Seizure) Order 2003. I understand that the order has been laid as Part 2 of the 2001 Act, providing for the first time a statutory regime for powers of entry, search and seizure in connection with the investigations of offences under the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957, and that this draft order will be part of that regime. The powers of a commanding officer for entry, search and seizure of property has been discussed in great detail previously and I understand that the proposed order will continue to allow commanding officers to have those limited powers, subject to judicial review. if I am correct in my assertions, will the Minister assure the House that the Armed Forces legal directorates are content with the order?

In conclusion, I should like to take this opportunity to pay tribute to the men and women, and to the families, of our Armed Forces. They have been over-committed and many of their families have faced extra-long periods of separation. They have performed their tasks highly successfully, with great skill, bravery and determination, and I am sure that all of your Lordships, on all sides of the House, are immensely proud of all their many achievements.

In the recent defence debate, I stressed the importance of ensuring that the Armed Forces are given a fair deal. I should like to take this occasion to remind the Minister to examine now how pay, conditions of service and allowances can be increased and improved; as, otherwise, we may lose many trained and experienced servicemen. The tri-service Armed Forces disciplinary Bill is yet another part of this fair deal. It is essential that this new legislation is right and easy for commanding officers to interpret and administrate. As I have said, military discipline, in combination with the military ethos and sound training, ensures high morale and operational effectiveness.

Lord Redesdale

My Lords, I shall speak to both orders. The Minister mentioned the case of Grieves— confirming the court martial and the fact that the case will be heard by the European Court of European Rights. We shall have to await the outcome; but if the outcome goes against the Government, what action will be taken, and under what time-scale?

We support the move to a tri-service Act, which is seen to be in 2005–06—although the Minister said in his introduction that this will be down to the availability of time. That is a form of words often used by Ministers, but I hope that he will confirm that it will be seen as an essential piece of legislation. Its importance is such that, in another place, Dr Lewis Moonie mentioned the fact that it was raised by the noble Lord, Lord Vivian, last year. It is only fair—

Lord Bach

My Lords, for the record, I think that the honourable Member to whom the noble Lord refers was my colleague the Minister, Mr Ivor Caplin.

Lord Redesdale

My Lords, that was last year obviously, but Dr Moonie raised this point in the House of Commons Standing Committee on Delegated Legislation this year. I apologise to the House for not making that clear.

The only reason I raise the point is that it is rare for this House to receive a mention in another place and the noble Lord, Lord Vivian, should be aware of the compliment paid to him by Dr Moonie. He said: Lord Vivian was a brigadier in the Army. He has vast experience of the armed forces, as have so many Members of the upper House. Many have served in the highest positions in each of the armed forces. The contribution that they can make to the process cannot be overestimated". I mention that because, obviously, we like to believe that the debates in this House are taken note of in another place. In talking about the provisions for court martial and the changes that will be made, the noble Lord, Lord Vivian, mentioned the powers of commanding officers. We take on board the importance of the views of commanding officers.

The noble Lord, Lord Vivian, also raised the question of the two service personnel who questioned the legality of war in Iraq. Before the vote in the House of Commons, we on these Benches questioned the legality of war in Iraq. We question at what stage those prosecutions will be taken, if they are to be taken at all. However, I was interested to note from newspaper articles—I merely give this the weight that it was given in the press—the stated position of Robin Cook in regard to the legality of the war in Iraq.

We support all the work that is being done by our troops in Iraq at the present time and do not question their professionalism. We support both orders. I very much hope that the tri-service Act proposed for 2005–06 will be brought forward.

Earl Attlee

My Lords, I am grateful to the Minister for his explanation of the order. I remind the House that I have a peripheral interest. I say "peripheral" because I no longer serve in the Regular Army and I am not likely to called up again for some time, I hope. I serve for only a few days a year with the TA.

I have no difficulty with the orders themselves. The Minister mentioned the complaints procedure, otherwise known as the grievance procedure. I can assure him that there is much scope for improvement in the grievance procedure, particularly in respect of the time-scales to draw such matters to a conclusion.

Prior to going to the Gulf, I had to consider whether I was prepared to take the anthrax vaccination. I did. On mobilisation, it was very clearly a free, informed choice as to whether or not one was going to take the vaccination. Great efforts were made in that regard.

Interestingly, and despite trying quite hard myself, I was unable to obtain a booster vaccination in theatre. Consequently, the cost of the original vaccination, which I understand is quite expensive, was wasted, and now I have no protection against anthrax.

But during the operation in Iraq Ministers authorised the taking of the NAPS tablets—the nerve agent pre-treatment sets. NAPS is a prophylactic treatment to mitigate the effects of nerve agent poisoning. However, service personnel were compelled under military law to take the NAPS tablets. I had no difficulty with that; I wanted to take them in order to be fully protected. But can the Minister explain why military law was used to compel the taking of NAPS but not the anthrax vaccination?

8 p.m.

Lord Burnham

My Lords, the Minister will be in no doubt whatever why I have risen to my feet on this subject. I have done so every year since 1997 in regard to the renewal of the tri-service Act. When the noble Lord says that a tri-service discipline Act is taking a little longer than we envisaged, that is an understatement. That is clearly the case of Jarndyce and Jarndyce. I have no doubt whatever that it will be many years before we have a tri-service discipline Act. There is no reason why that should be so. There was talk about the next two Sessions.

My noble friend Lord Vivian and the noble Lord, Lord Redesdale, were far too gentle with the Minister and with his civil servants on the delay in getting a tri-service Act together. The civil servants, the people who should be producing it, need a very serious kicking so that we can have a draft Bill by this time next year, when we next discuss the renewal of this order. I hope and believe that the noble Lord, Lord Gilbert, will support me on those points.

Lord Bach

My Lords, I am grateful to all noble Lords who have spoken on this order. Some important points have been made. I thank noble Lords for their support for the continuation order. It is very important. I agree with what the noble Lord, Lord Vivian, said about the critical importance of high morale. That is at the centre of everything that we are trying to do in this area.

I have been asked a number of questions. One concerned why the tri-service Bill is taking so long. The noble Lord, Lord Burnham, in his inimitable way, suggested that there had been undue delay up to now. I do not believe that that is fair. It is likely to be a very long Bill, if it comes before Parliament at all. The House will know that after five years we must have a discipline Bill before Parliament, as we did in 2001. We very much want the next one to be the tri-service Bill. It must be understood that that will be a long piece of legislation because of the changes that it will mean to the three Acts that presently apply. Such matters take a very long time. I shall bear in mind what the noble Lord, Lord Burnham, said. If I am in this place this time next year I shall come here fearful and I dare say that my civil servants will come even more fearful.

Why the delay? What is holding up matters? I want to be frank with the House. I said that we hoped that the policy development would be complete and it is not. I have to concede that. In principle, the services have agreed that the tri-service Bill, as it is called, should provide for a single system of service law, which would replace the separate systems that we are used to. If achieved it would mean that for the first time personnel in all three services will have the same rights and be subject to the same disciplinary powers. In many of those areas—for example, in the courts martial system—the services have largely agreed on common future procedures that will make the service system of law a reality.

There are some significant issues of detail that remain to be decided. notably in the key area of summary discipline. The three services are proud of their traditions and the noble Lord, Lord Burnham, knows them as well as anyone in the House. It has not yet been possible to settle on a harmonised level of powers to be exercisable by commanding officers. The main difficulty is the extent of the present differences between the Royal Navy and the other services.

At present the Royal Navy is able to deal summarily with a much wider range of offences and is able to award greater punishment than either the Army or the RAF. The Royal Navy has a maximum period in detention of 90 days, for example, rather than the 60 days available to the other two services. Work continues on finding a suitable harmonised level of powers. That is a key issue for a tri-service Act and one that we shall have to solve. Perhaps for once it is not fair to blame the Civil Service, but we should perhaps ask the services themselves to come to an accommodation on that. I am confident that in the normal way they will.

I was asked about discipline in two different forms by the noble Lord, Lord Vivian. One was in relation to the two soldiers who were mentioned in the newspapers. The point was taken at length by his honourable friend in another place, but that is not a good point. The two soldiers returned home for different and separate reasons. One soldier wanted to go home because of a serious domestic problem which I do not intend to go into. Through discussion with the soldier, the real reasons for him wanting to get out of Iraq were identified. The soldier was compassionately returned to the UK; he is still serving with his regiment and has no desire to leave the Army. It would have been inappropriate for disciplinary action to have been considered in his case.

The second soldier was a young man who suffered psychiatric problems during his time in the Gulf. He was returned home for medical reasons and assessed as being temperamentally unsuited to military service and has been discharged. I hope that the noble Lord will agree that both those cases—I shall not go into any more detail—were suitably dealt with, as is often the case.

We know that there are a number of allegations against British soldiers of mistreatment of Iraqis. As the noble Lord would expect, we take such allegations extremely seriously and full investigations are taking place. I shall not comment on any individual case today.

On a tri-service Act and on undermining commanding officers, it is key that any changes should underpin operational effectiveness. That, of course, means the commanding officer's role still being very important.

I was asked about the International Criminal Court. I do not believe that the noble Lord, Lord Vivian, need worry. As he knows, the purpose of the International Criminal Court is to ensure that those who commit the gravest crimes do not do so with impunity. Those crimes are crimes against humanity, war crimes and genocide. There is no question of the ICC investigating any allegations of breaches of international law other than the ones in statute.

UK service personnel are not at risk from malicious or politically motivated investigation or prosecution by the ICC. Under the statute, the UK has complementary jurisdiction to the ICC, so it is for the UK, and not the International Criminal Court, to investigate and if necessary prosecute any allegations against UK personnel.

The ICC could intervene against our wishes only if it could claim that the UK was unwilling or unable to proceed; in effect, that means that our system of justice needs to have broken down or that we were deliberately shielding something. In my view, that is inconceivable.

The noble Lord, Lord Redesdale, tempts me to say what we would do about the Grieves case. In the words of a very famous former Liberal Prime Minister, he will have to wait and see. Of course we are not going to commit ourselves at this stage, nor would he expect us to. As far as a tri-service Act is concerned, we shall do our best, as he requests.

I was particularly pleased to hear from the noble Earl, Lord Attlee. We know that he served in the Gulf. He was too modest about his role. As noble Lords from all sides of the House have said, we are very proud indeed to have him as one of our number. I am flattering him to some extent because I do not have the faintest idea what the answer is to the question with which he finished his speech. I promise to write to the noble Earl as soon as I possibly can with the answer.

The noble Earl referred to grievance procedures being too long. We recognise the need to speed up decisions. That is part of the work we are effecting on the tri-service legislation.

I hope that I have covered the questions asked by noble Lords.

On Question, Motion agreed to.