HL Deb 12 May 2004 vol 661 cc362-80

8.15 p.m.

Lord Bach rose to move, That the draft order laid before the House on 26 February be approved [11th Report from the Joint Committee].

The noble Lord said: My Lords, with the leave of the House, I shall speak also to the Naval Discipline Act 1957 (Remedial) Order 2004.

Your Lordships will be aware that Parliament is asked to consider an order of this nature in most years as 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 those, the 2001 Act, extended the lives of the Army and Air Force Acts 1955 and the Naval Discipline Act 1957 by a further five years. However, that is subject to both Houses approving an order such as this in each intervening year.

The service discipline Acts provide the statutory basis for discipline in the Armed Forces. They are of critical importance and so, therefore, is this order as the means of ensuring that the discipline Acts remain in force. It was considered in another place on 29 April.

Before I move on, I should make one observation about the order. The Government have given an undertaking that Ministers moving instruments which are subject to the affirmative resolution procedure will tell the House whether they are satisfied that it is compatible with the European Convention on Human Rights. The order is of course a brief document, and it raises Convention issues only in that it continues in force three Acts that have been developed over the years to reflect the Convention rights.

In last year's debate, I mentioned that the Government were awaiting a European Court of Human Rights judgment in the cases of Cooper v United Kingdom and Grieves v United Kingdom to determine whether the involvement of non-judicial authorities in the review of court martial findings and sentences impaired the independence of the court martial and thus potentially infringed Article 6 of the Convention. The court's judgment of 16 December 2003 ruled, in Cooper's case, that the review process did not breach Article 6. However, in Grieves' case, it ruled that, the position of naval Judge Advocates cannot be considered to constitute a strong guarantee of the independence of naval court martials". As a result, the Government laid the Human Rights Act (Remedial) Order in January, which your Lordships will be considering this evening. Thanks to the order, the service discipline Acts are compatible with the Convention rights and so is the present order that continues the Acts.

I move on to our plans to replace the service discipline Acts with a single tri-service Act. The triservice Act will replace the current and separate systems of naval, Army and Air Force law with a single system. It will better support the Armed Forces in the joint environment in which they increasingly carry out their training and operational tasks. The single system of service law will be underpinned by unified tri-service institutions dealing in particular with the administration and prosecution of courts martial.

I mentioned in last year's debate that work on policy development was taking longer than expected. I am pleased that agreement has now been reached on the harmonisation of summary and court martial disciplinary powers and processes across the three services. The harmonised system has evolved from the present powers and reflects the basic principles of fairness, consistency and efficiency, combined with the need to support operational effectiveness, particularly through the better and transparent alignment of discipline with command. As well as harmonising service discipline, the Act will provide an opportunity for a sensible modernisation and the statutory basis for service discipline for the next generation.

I undertook during last year's debate to assist the House by providing details of the main proposals for the tri-service Act once we had firmed these up. The main changes proposed include a range of harmonised summary offences and powers that would in essence involve a reduction of naval commanding officers' powers and some increases for army and RAF commanding officers. But there will be safeguards, applicable to all three services, to check the exercise of their current and proposed wider powers. This is not a revolutionary approach. Rather, it represents an evolution from present procedures, so that the fundamentals of summary discipline as the means of dealing with most offences, with trial by court martial for the more serious cases, are unaffected.

The other main proposals involve commanding officers having powers to deal with officers and warrant officers in addition to powers to deal with non-commissioned personnel; the removal of the current power of the reviewing authority to quash a commanding officer's finding in exceptional cases, with all such cases being referred to the summary appeal court; the creation of a joint prosecuting authority and courts administration system; the introduction of "one type of court martial, comprising a judge advocate and three or five lay members depending on the charge; the establishment of a standing court martial and a single appointing authority for judge advocates in all three services. Work is continuing on other areas covered by the legislation, such as the system for members of the Armed Forces making complaints and boards of inquiry.

The Government and the Armed Forces attach considerable importance to the tri-service Act project. Although the work on policy development is taking longer than originally envisaged, it is not affecting our overall timetable. In any case, as I am sure your Lordships will agree, it really is essential that we get the policy right.

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. That will obviously be subject to the availability of parliamentary time for what is expected to be a very large Bill. In the mean time, it is our intention to assist Parliament in its consideration of our proposals. We shall give further thought to how that might best be done. I am keen to draw particularly on the experience and knowledge of Members of this House in the scrutiny of service law.

As I have mentioned, the need for a tri-service Act derives from the importance of having a better disciplinary framework in the many situations in which the services work together. Operations in Iraq, Afghanistan and elsewhere have demonstrated the professional, disciplined approach of our Armed Forces, and it is that operational effectiveness that we must support through any changes to service discipline law.

I turn to the Naval Discipline Act 1957 (Remedial) Order 2004. This remedial order was made pursuant to the urgent procedure prescribed in paragraph 4 of Schedule 2 to the Human Rights Act 1998 and requires both Houses to approve the order by passing a resolution within 120 days of the order being made. Those special procedures allow for the speedy remedying of an incompatibility between domestic law and the convention's rights established under that Act.

The remedial order amends sections of the Naval Discipline Act to provide that the Judge Advocate of Her Majesty's Fleet, rather than the Chief NavalJudge Advocate (as he then was), appoints judicial officers and judge advocates. The order also makes consequential amendments to the Courts Martial (Royal Navy) Rules 1997, the Naval Custody Rules 2000, the Summary Appeal Court (Navy) Rules 2000 and the Administration of Oaths (Summary Appeal Court) (Navy) Order 2000.

The reason for making the remedial order is that in its judgment of 16 December 2003 in the case of Grieves v United Kingdom, the European Court of Human Rights held that there had been a violation of Article 6(1) of the European Convention on Human Rights, in that the position of the judge advocate in the applicant's trial by court martial did not provide a sufficient guarantee of the independence of the court martial. One of the factors that put the judge advocate in that position was provided for in legislation whereby a judge advocate must be appointed by the Chief Naval Judge Advocate, who is a serving naval officer.

Although the court's judgment considered only naval courts martial, it applies equally to naval judge advocates appointed to the naval Summary Appeal Court and to naval judicial officers appointed for naval disciplinary purposes.

A remedial order has been used to make these legislative changes as it is essential for the administration of justice, as well as for the maintenance of discipline within the Royal Navy, that trials and hearings under the Naval Discipline Act continue without delay. The incompatibility with Article 6 of the convention had to be removed as soon as possible so that trials and hearings could continue.

Noble Lords will be aware from my Written Statement dated 19 April that no representations had been received concerning the order during the 60-day period following the date of 16 January when the order came into force. The Government therefore do not intend to amend or replace the order currently before the House.

Noble Lords will also be aware that the Joint Committee on Human Rights is required to report to each House on each instance of the use of these powers by a Minister and I am pleased to be able to say that the Committee has recommended that the order be approved. It did, however, make an observation concerning the undesirability of waiting for an adverse finding before introducing the changes necessary to bring the Royal Navy's courts martial system into line with those of the other two armed services in respect of this particular issue of compliance. It considered that a more dynamic approach to giving effect to previous observations by the European Court would have led to the conclusion that this latest finding of incompatibility was very likely. In response, I would say that the majority of measures introduced as a result of Findlay v United Kingdom (1997) applied to the three services equally and that the Court Martial Appeal Court, in the case of Skuse (2002) found in our favour with regard to uniformed judge advocates. We considered, therefore, that there were sufficient safeguards in place.

On a more general point, I want to take the opportunity to remind noble Lords that it was the European Court's judgment in Cooper v United Kingdom which was handed down on the same day as Grieves that confirmed that the Royal Air Force and, by implication, the Army procedures satisfied the requirements of Article 6. The Cooper judgment reaffirmed earlier decisions that there is nothing in the provisions of Article 6 that would, in principle, exclude the determination by service tribunals of criminal charges against service personnel. However, we fully accept the views of the Joint Committee on Human Rights and are grateful for its work.

The Naval Discipline Act 1957 (Remedial) Order 2004, made in accordance with the "urgent" procedure under Section 10 and Schedule 2 to the Human Rights Act 1998, has removed the incompatibility between the Naval Discipline Act and Article 6 of the convention.

I am sure that noble Lords would not expect me to conclude without paying a warm tribute to the fortitude, resolve and discipline that are in evidence in the personnel of all our Armed Forces. I know that these qualities are fully valued in all parts of your Lordships' House. I have already moved the continuation order.

Moved, That the draft order laid before the House on 26th February be approved. [11 th Report from the Joint Committee].—(Lord Bach.)

Lord Astor of Hever

My Lords, I am most grateful to the Minister for explaining these two orders. I should like to start by joining the Minister in paying tribute to the men and women, and the families, of our Armed Forces, not only members of the regular services but also our reservists. It is important for them to know that they will be treated fairly and effectively in matters of discipline. The fair application of military discipline, good and sound training, and military ethos, form the cornerstone of effective military operations. I look forward very much to the contribution of my noble friend Lord Attlee, who will bring first-hand experience to this short debate from his service in Iraq.

We support the continuation of the service discipline Acts which form the statutory basis for discipline in our Armed Forces. The Minister has promised the House a single tri-service Bill to be brought forward, it is hoped, during the 2005–06 parliamentary Session. I look forward very much to contributing to that Bill and its pre-legislative scrutiny.

Two years ago, my noble and very much missed kinsman Lord Vivian raised the issue that due to the differing nature of the three services and their different roles, there may be a need to introduce some parts of the Bill applicable to one specific service. Can the Minister say what progress has been made in relation to the possible need for that?

We understand the reason for the Naval Discipline Act 1957 (Remedial) Order and support it. The incompatibility with Article 6 of the European Convention on Human Rights has to be removed as soon as possible so that trials and hearings can continue without delay. I hope that the Minister will take this opportunity to pay tribute to the work carried out over many years by serving officers in that capacity in many courts martial.

Finally, debating these service discipline orders gives me the chance to touch briefly on the situation in Iraq in the context of a possible breakdown of discipline. We on this side of the House soundly condemn any abuse of Iraqi prisoners of war, whoever has committed it. I praise the continued superb conduct of the vast majority of our Armed Forces. The British Army, far from being a bunch of thugs, as the Mirror has claimed recently, is, apart from a very few exceptions, made up of decent, disciplined people doing a difficult job in very dangerous circumstances.

When we debated these orders in July last year, my kinsman Lord Vivian raised the specific issue of accusations of mistreatment of Iraqi prisoners of war by British forces. My kinsman was assured by the Minister that the Government knew of the accusations. Moreover, the Minister affirmed that the Government took the allegations very seriously and that full investigations were taking place. According to the Observer on 9 May the MoD confirmed that three British military personnel were stationed at Abu Ghraib prison. To whom did those British servicemen report? Were they aware of the mistreatment and abuses that were going on? Did they at any point complain to their superiors? Did those superiors report to Ministers? Bearing in mind that we were, and still are, officially co-occupiers of Iraq, with the United States, and therefore are jointly responsible, were any representations made to the United States?

8.30 p.m.

Lord Redesdale

My Lords, I support the two orders and I support the introduction of the tri-service Bill which has been mooted on many occasions in the House. We look forward to debating it on the Floor of the House, whenever government time allows.

My noble friend Lord Lester will raise a number of issues, but I have two brief questions to ask the Minister. First, the evidence coming from Iraq at the moment, through the International Committee of the Red Cross, indicates that certain operating procedures undertaken by the British Army could have been in contravention of the Geneva Convention. If that is the case, the soldiers who undertook actions using the standard operating procedures may well have broken the code, but who is ultimately responsible in the chain of command for those standard operating procedures? Is the responsibility within the Army or is it within the MoD and do Ministers have a responsibility?

Secondly, considering the court case yesterday, that has just been reviewed—I have raised this matter three times in the past week—can the Minister say, on the basis of the judicial review that will probably be undertaken, whether the European Convention on Human Rights is now to be viewed by the MoD and the Army as applicable to those serving in Iraq?

Lord Judd

My Lords, we all want to take this opportunity to state our admiration for what the armed services do on our behalf. Some years ago, as a Minister for defence, I had responsibility for speaking from the Front Bench on defence affairs, so I know how fortunate we are to have the calibre of services that we have.

As a member of the Joint Committee on Human Rights, I can say that everyone on the committee was impressed by the commendable speed with which the Government moved on the issue of the Naval Discipline Act when difficulties arose. There is an argument about why action was not taken before but, when the issue arose, it has to be recognised that the Government could not have moved more rapidly. What has been done and the way in which it has been done deserves commendation.

I should like to make a couple of points. One cannot look at the discipline Acts in isolation from the defence task and the issues with which our armed services are asked to grapple. We all know that the challenge to the services has changed dramatically in the recent decade. The task which we have set our armed services now is usually that of peace-keeping, peace-making and supporting the international community when it decides to grapple with a particular issue somewhere in the world. This is putting new and, in many ways, unimagined demands upon the armed services.

Personnel within the armed services, not only at the most senior level but at junior officer level, NCO level and the level of the ordinary soldier, rating and airman, are frequently asked to be ambassadors, diplomats, social workers and so on. The strategy upon which they are embarked is often not simply a technical military strategy but the strategy of winning hearts and minds. I think that many in the House believe that the British armed services have built-up some enviable standards in this respect. In my view, we should not be reticent in bringing home those standards to others in the world, even to those with whom we are co-operating most closely—for example, in Iraq. I am proud of what has been learnt and what is being applied in that context.

But, of course, it is not a lesson that has yet been accepted, fully appreciated and understood by everyone to the same degree. It is there to a commendable level of commitment but we know that there are backslidings and allegations of backslidings, to which reference has already been made in the debate. The point I wish to make is that we shall not get discipline right if we look upon it as a constraint.

We would not get very far with the effectiveness of the armed services—I have often heard this point made by those with responsibility for leadership in the armed services—if everyone with responsibility for leadership was going around with a copy of the Queen's regulations under their arms, looking up the appropriate regulation and saying, "You must do this because of this regulation". We would not get very far with fulfilling the spirit of the Geneva Convention, let alone abiding by its principles, if all our officers and senior NCOs were expected to carry around in their pockets a copy of the Geneva Convention, to which they could make reference at any particular moment.

Leadership in this context depends upon a culture. That culture means that these matters are absorbed, understood and felt by all those concerned. So while we need the discipline Acts, just as we need the law in society as a whole, they are most effective when they are there to reinforce and underline the culture and the set of values which apply.

From that standpoint it seems to me that, when discussing the issues that we are discussing this evening, we need to give some thought to the training, the education and the preparation of our servicemen for the task in which they are involved. Human rights should not be something that people have to remember just because they have to give account of their conduct in terms of human rights. The purpose and culture of preserving human rights should be central to the task.

If we have moved into this new phase of recognising new forms of challenge in international strategy, as I have said already, the issue of hearts and minds is central. Hearts and minds can only be won if at all times conduct is exemplary—and conduct is exemplary not just technically but because those undertaking the task can be seen to represent those values in action. That is a tremendous challenge to leadership, to training, to education and preparation.

I would find it very reassuring if my noble friend in responding to this brief exchange could say something about the positive things being done within the services to make these issues central to their culture for every serving man and woman.

Having said all that, I conclude by saying that I am delighted to hear of the work being done on a common approach to discipline across the three services. As the whole task of security and defence becomes much more integrated and a co-operative task between the services, this is a logical development which recognises the new realities and is altogether sensible. I am sure the House will want to give it all possible support when it is put before us.

Lord Lester of Herne Hill

My Lords, as a member of the Joint Committee on Human Rights, I join the noble Lord, Lord Judd, in greatly welcoming not only the remedial order but also what the Minister said in his response to the recommendations of the Joint Committee, which I am sure will be welcomed by all noble Lords.

On 17 May 2001, on the eve of the invasion of Iraq, there was a remarkable and memorable debate in this House at the instigation of my party, introduced by my noble friend Lord Goodhart, calling attention to the UK's obligations under international law concerning the use of armed force. My own speech concentrated on the limits imposed by international humanitarian law.

The noble Baroness, Lady Symons of Vernham Dean, in her reply assured the House, as one would expect, that the Government would give the Armed Forces and civil servants clear guidance about their obligations under humanitarian law. I hope and believe that the Minister will be able to confirm that such clear guidance was given before the conflict. I share the Minister's view and that of the whole House about the courage, fortitude and good discipline of the overwhelming majority of members of the Armed Forces.

Unfortunately, last Sunday the Prime Minister had to give—as he properly did—a public apology to anyone who has been mistreated by British soldiers. And he gave an assurance that: Those who are responsible for this—if they behaved in this appalling way—they will be punished according to army discipline and rules". The order we are asked to approve this evening properly ensures continuity so far as the service discipline Acts are concerned. They are really the frameworks to which the Prime Minister was referring when he talked of discipline and punishment. What the order does not do is to provide any means of redress for any Iraqi victims of the abuse of power by members of the Armed Forces, and that is the issue on which I should like to focus.

On 4 May, the noble Lord, Lord Bach told the House that UK personnel in Iraq, are subject to UK law, as they would be in the United Kingdom".—[Official Report, 4/5/04; col. 1030.] In the United Kingdom, the victim of a violation of human rights is able to claim legal redress under the Human Rights Act, including compensation. He or she also has rights under the general law. It is important at this time for the House to be fully informed this evening as to the precise position about the accountability of UK personnel in Iraq—to the Iraqi victims of any abuse of human rights, and their entitlement to any compensation.

In the debate in the other place on Monday, the right honourable Geoff Hoon, the Secretary of State for Defence, revealed that British troops had used unlawful interrogation techniques in the aftermath of the conflict—notably by hooding prisoners. That practice was apparently stopped in September. It is more than 30 years since I had the privilege of acting as co-counsel with Brian Hutton QC as he then was, led by the Attorney-General, Sam Silkin QC, defending the United Kingdom before the European Court of Human Rights in the case brought by the Irish Republic complaining of the use of inhuman and degrading interrogation techniques in Northern Ireland. We undertook to the court that the five interrogation techniques condemned by the court as involving serious breaches of Article 3 of the European Convention—including covering a detainee's head with a hood—would no longer be used. Instructions were therefore given to the Armed Forces to ensure compliance with that undertaking.

I am sure that the Minister will agree that it is therefore quite deplorable that instructions that have been in place for some 30 years should have been breached in the aftermath of the Iraqi conflict. The report of the International Committee of the Red Cross of February described hooding as: used to prevent people from seeing and to disorient them, and also to prevent them from breathing freely. One or sometimes two bags, sometimes with an elastic blindfold over the eyes which, when slipped down, further impeded proper breathing. Hooding was sometimes used in conjunction with beatings thus increasing anxiety as to when blows would come. The practice of hooding also allowed the interrogators to remain anonymous and thus to act with impunity. Hooding could last for periods from a few hours to up to two-to-four consecutive days, during which hoods were lifted only for drinking, eating or going to the toilet". The report describes some of what occurred—only some—as "tantamount to torture".

That is the practice that was described by the report in paragraph 25, together with what is called other unacceptable techniques of physical and psychological coercion, as having been, used by the military intelligence in a systematic way to gain confessions and extract information or other forms of cooperation from persons who had been arrested in connection with suspected security offences or deemed to have an 'intelligence value". I have written to the Minister asking him to inform the House in this debate, first, when and in what circumstances this practice—in serious breach of international human rights law—came to the attention of Ministers. Secondly, how systematic was this unlawful practice and by whom was it carried out? How was the practice brought to an end? What disciplinary action was taken to punish the perpetrators? What redress had been given to the victims of the practice? What legal redress is available to them—whether in Iraq or in this country—by way of compensation?

I should also like to know whether the other examples of physical and psychological coercion described by the report have been abandoned, and whether the United Kingdom has complied with the request made by the International Committee of the Red Cross to take corrective action. The committee asked the authorities of the coalition forces, to respect at all times the human dignity, physical integrity and cultural sensitivity of the persons deprived of their liberty held under their control; to set up a system of notifications of arrest to ensure quick and accurate transmission of information to the families of persons deprived of their liberty; to prevent all forms of ill-treatment … to set up an internment regime which ensures the respect of the psychological integrity and human dignity of the persons deprived of their liberty". The authorities are asked, to define and apply regulations and sanctions compatible with International Humanitarian Law and to ensure that persons deprived of their liberty are fully informed". They are also asked to investigate thoroughly the violations alleged. The next request will particularly appeal to the noble Lord, Lord Judd, as it is, to ensure that battle group units arresting individuals and staff in charge of internment facilities receive adequate training enabling them to operate in a proper manner", and so on. It would be welcome to know that the Government are complying with those sensible recommendations.

I have also written to the Minister asking him to clarify the legal status of troops and their detainees in Iraq now and after the 30 June transfer of sovereignty. I am afraid that I have tabled lots of Questions for Written Answer on that important subject, but am still unclear about the position. In an Answer given on Monday by the noble Baroness, Lady Symons of Vernham Dean, she explained that: If an investigation concludes that there was wrongdoing on the part of UK personnel, appropriate disciplinary measures will be taken, including criminal proceedings where necessary". — [Official Report, 10/5/04; col. WA 10.] But my Question asked also what recourse was available to the people of Iraq for breaches of their human rights. I have asked the Minister kindly to clarify that.

At a time when it is vital to win the peace and to restore democracy under the rule of law in Iraq—an aim that we all share—and at a time when public trust and confidence in the Government has been regrettably undermined, it is essential for full and complete information to be given to the House before we approve the necessary orders.

Earl Attlee

My Lords, I remind the House that I have an interest, as I am a serving TA officer and subject to military discipline as we speak. The noble Lord, Lord Judd, talked about carrying a copy of the Queen's Regulations under his arm. I assure him that it is impossible; they are far too heavy and bulky.

The Minister mentioned a proposed new power for the commanding officer to discipline an officer. In principle, that is welcome, particularly for minor offences such as a road traffic offence, which currently have to be dealt with by the brigadier. However, we will need to look very carefully at the range of offences that can be dealt with by the commanding officer.

On Tuesday, the Minister was insistent that everyone deployed on Operation TELIC was properly trained on the law of armed conflict. Prior to deployment on Operation TELIC, I received such training: I saw the same video that I had watched for the past 20 years. I received no training on the rules of engagement. There is a very simple reason for that; namely, that the rules had not been agreed by Ministers at that point.They were agreed very much later.

The Army has very interesting courses for equal opportunities, food hygiene and many other subjects. However, I ask the Minister—he may prefer to write to me—whether there is a requirement for instructors on law of armed conflict to attend a course. Indeed, is there a course available for those instructing on the subject? I have to say that the quality of instruction that I have seen from regular warrant officers is not very high.

During the passage of the Armed Forces Discipline Act, I mentioned some difficulties that arise with disciplining a TA soldier who commits an offence while technically off duty. Is it correct that, in a recent case where a TA soldier impersonated an officer—a very serious military offence—no disciplinary action was possible because the soldier was not on duty? Unfortunately, I was not able to pursue the issue at the quinquennial review, because the general election truncated our deliberations on the Armed Forces Bill.

I am aware of changing standards, particularly in the Army; in other words, slackness. A few examples may be helpful. About two years ago, I reported to the Royal Military Police a REME recovery vehicle being driven recklessly. It was on the A303 and it was travelling at about 65 to 70 miles an hour. I know because he passed me when I was driving my Discovery. Furthermore, it was towing a heavy eight-wheel vehicle.

I reported this incident to the Royal Military Police, but they did not bother to take a statement. They said that they would contact the unit. This really means that no disciplinary action will be taken—and that is despite having evidence from an expert witness. I suspect that nowadays it is too difficult to deal with. No wonder the Army has a horrendous road traffic accident record.

I believe that the ECHR severely damages military discipline. We have moved away from a system of military discipline to a system attempting to be one of perfect military justice.

Lord Lester of Herne Hill

My Lords, I am grateful to the noble Earl for giving way. I speak as a former national service officer during the Suez War. Is he aware that in the 1950s the standards on human rights law and humanitarian law were all incorporated into our manual of military law and that those basic standards of human dignity and decency have not altered?

Earl Attlee

My Lords, in some ways I agree with the noble Lord and I shall move on to subjects about which he has spoken.

A good example is the difficulty of dealing with disorderly soldiers. It used not to be a problem—they were just put into the guardroom until they calmed down. Now, I am told, they cannot be detained because the conditions of the Bail Act apply. In order to detain a soldier, there needs to be evidence that he will interfere with witnesses or abscond. The danger is further disorder and I have been told of cases in which innocent soldiers have been seriously assaulted by a soldier who is disorderly. In days of old, he would have been put into the guardroom until he had calmed down. I feel that that is unfair and unjust to the soldiers assaulted.

But even worse, instead of the disorderly soldier being disciplined by the commanding officer for a relatively minor offence that will not damage his career, he is now facing serious disciplinary offences and probably a court martial and severe punishment. The noble Lord, Lord Lester of Herne Hill, rightly covered some of the difficulties we are experiencing in Iraq. Obviously, I am extremely concerned about the claims made in the Mirror. It is generally accepted that the photographs are fake—the noble Lord, Lord Redesdale, the other day identified difficulties with them. We are still anxious that these photographs may depict real events.

The question arises: are these allegations well-founded? Much thought has been given to this by experts and I have been thinking about it. The allegations referred to a traditional beating with the butt of a rifle, among other claims. I do not find that claim at all convincing. The SA80 rifle is a very short weapon, unlike the 303 Lee Enfield or the SLR. It is not very good for a prodding assault—not even very good as a club because it could break and certainly be damaged. I suspect that other weaknesses have been identified.

But I have several concerns. The first is the time that is taken to investigate these alleged offences. It goes back to my point about military discipline or perfect justice. Secondly, it may be that junior soldiers have behaved badly, but we place incredible demands on these soldiers, as mentioned by the noble Lord, Lord Judd. They represent a very ordinary cross-section of society—they are not carefully selected, as are officers.

It appears that the Americans are falling into the trap of subjecting junior soldiers to courts martial, but what about the officers? It is their duty to keep their soldiers under control and that is where I support the noble Lord, Lord Lester of Herne Hill. We do not always agree, but I believe that the officers have an onerous duty to keep their soldiers under control. It is not easy, especially in the heat of the moment and with increased bureaucracy and difficulty in applying military discipline.

9 p.m.

Lord Bach

My Lords, I am very grateful to the noble Lords who have spoken in this debate. I think that, without exception, all noble Lords have supported the orders. Some important speeches have been made and important questions have been asked. I shall do my best briefly to answer them.

I am particularly grateful to the noble Lord, Lord Astor, for mentioning his kinsman Lord Vivian. He played an important part in these debates and he is still missed.

In consideration of a tri-service Bill, the noble Lord, Lord Astor, asked what had happened in relation to the points raised by Lord Vivian last year concerning the different needs of each service. Thus far, agreement has been reached on harmonised provisions for all the services on all disciplinary matters, but I do not think that the noble Lord will be surprised to hear that there may still be differences on minor details.

The noble Lord said that I had promised that there would be legislation, although he was careful enough not to say that that would be in 2005–06. I cannot promise legislation—would that I could—but I can say that the Government very much hope that there will be legislation. It is certainly needed in this field.

The noble Lord asked about the UK presence at Abu Ghraib—the United States detention centre. It is right that three UK military personnel worked in that prison from January until April this year. Those three personnel were from the Army Intelligence Corps. One was a captain interrogator; two were debriefers. The team was made up of specially trained personnel. As the noble Lord will know, interrogators are specially trained in questioning a non-co-operative witness. The interrogator left on 26 March. The debriefers, on the other hand, are specially trained in questioning a cooperative witness. They were present at the request of the United States authorities in order to speed up the process of questioning the detainees. They questioned about 20 in all. They did not leave because of allegations. The team went to the prison at the request of US Central Command. In March/April, it was concluded that their presence was no longer essential.

I was asked whether those personnel had any contact with personnel currently under investigation. The answer is: no. By January 2004, the US unit and the individuals under investigation left the prison. Did they witness any abuse? The answer is: no. They were not aware of any allegations or actual incidences of abuse during their time at the prison. The incidents under investigation took place prior to their arrival. A lieutenant witnessed one incident of what he considered to be rough handling by US personnel. That was immediately reported to the US authorities. The leader of the team was asked whether he or any of his team had seen or heard of any abuse. I have dealt with that matter in some detail. It is an important question and the noble Lord is entitled to a decent answer.

I turn to the points raised by the noble Lord, Lord Redesdale. He asked about the judicial review. As I understand it, a full hearing has now been given. I cannot tell the noble Lord that the Ministry of Defence will not argue that the European Convention on Human Rights does not apply. He will understand that we accept absolutely that international law, the Geneva Conventions and UK law apply. However, there is an issue about whether the Convention applies, which may well have to be argued.

As to the noble Lord's point about where the buck stops—I think that is a fair way of putting it—the Chief of Joint Operations is responsible for standard operating procedures. Is he potentially liable for breaches? The answer is that he promulgates the procedures in his name but the political responsibility for the conduct and operations of the Armed Forces lies ultimately with the Secretary of State. The service discipline Acts provide mechanisms to ensure that the political responsibility is met by the punishment of offenders.

I am grateful for the speech of my noble friend Lord Judd, who was a distinguished defence Minister. He made some important points, in particular in relation to the job that our Armed Forces at all levels now have to do, not just in Iraq but around the world. He asked whether they are trained to do that job. I do not have a full answer except to say that great efforts are made to ensure that soldiers and other members of the Armed Forces are properly trained for the tasks that they now meet, which in many ways are somewhat different from those they may have met in the past. It may be that there is more we can do in that regard. The defence training review proposed a coherent set of interlinked measures to deliver a training and education system that is more integrated between the services and between service and civilian training; more aligned to operational and business needs, more responsive to change and more cost effective. We are always seeking to do better.

Lord Judd

My Lords, I am grateful to my noble friend for giving way and for what he said in response to my point. However, can he specifically tell the House how far there is training throughout the armed services in the importance of human rights, their observation and our commitment to them in the undertaking of all the work that is done?

Lord Bach

My Lords, as I understand it, before any of the Armed Forces went to Iraq, as part of their training they would be informed of and taught the importance of their obligations under the law: the Geneva Convention, international law and English—British—law. At present I cannot say more than that.

Lord Lester of Herne Hill

My Lords, I wonder whether the Minister would allow me to mention one matter for him to reflect on. During the debates on the International Criminal Court Bill I raised the point about the manual of military law and the parts written by Sir Hersch Lauterpact and Colonel Gerald Draper. I asked whether that manual might be reissued because it proved so valuable to us during the Suez period. As I recall, the Minister indicated that that was an interesting idea. I wonder whether that kind of idea of published guidance that the public can see and that the Armed Forces may have available provides benchmarks on which we can all rely in future.

Lord Bach

My Lords, I am grateful. Again, if the noble Lord will allow me, I will take back that idea. However, I do not want to mislead the House by saying more is done than is done, nor the other way round. Clearly, there is some training in this field. I suspect the issue will be whether that is sufficient given the kind of jobs they now have to do.

The noble Lord, Lord Lester, was kind enough to write to me and inform me of the issues that he was to raise. I think there may be a misunderstanding between us. I have looked carefully at Monday's Hansard for another place and I do not believe my right honourable friend the Secretary of State said—even though it was put to him that he said—that hooding was used not on detainees but for interrogation purposes. It was put to him in a question: The Secretary of State has just confirmed that hoods were used on detainees in Iraq between April and September last year". I do not believe that my right honourable friend had ever said that. Clearly, there had been allegations. My right honourable friend replied: The policy did not change, and it was stopped".—[Official Report, Commons, 10/5/04; cols. 34–35.] I appreciate very much the important role that the noble Lord, Lord Lester of Herne Hill, has played over the years in establishing the rule that was announced in this House on 2 March 1972. It applied, as he said, to the interrogation of prisoners.

I shall now answer the noble Lord's questions. Hooding may be justifiably used in very limited circumstances; for example, on arrest, in order to maintain the anonymity of a suspect. We all know of examples where that happens, and it may be in the arrested person's best interests, particularly if he is seen being arrested and it is suspected that he may later turn out to assist us.

All UK interrogators are highly trained. Their training includes specific instruction that hooding must not be used as an interrogation technique. In Iraq during operation TELIC we are confident that interrogators have not used hooding as a technique. If allegations are made that suggest that they have, of course we will consider them very seriously.

Lord Lester of Herne Hill

My Lords, I fully understand what has been said. My puzzlement is that the Red Cross report deals, at paragraph 25, with hooding among other things as methods of ill treatment most frequently alleged during interrogation. Paragraph 26 states: These methods of physical and psychological coercion were used by military intelligence in a systematic way to gain confessions and extract information". It is very careful to acquit the coalition forces of other forms of systematic ill treatment. But, as I read the report, it seems to say that this is one example—and only in the early aftermath of the war—where a practice of hooding was used coercively in that way. On reading the report, I was concerned that the position as outlined by the Minister had not been followed—that the practice of unacceptable use of hooding had been discontinued. Perhaps that can be cleared up, because obviously it is very important. Why was it discontinued? How did it come to our notice, and how was it discontinued?

Lord Bach

My Lords, my only challenge to the noble Lord would be to suggest that the Secretary of State was not conceding that there had been proven examples of hooding being used in interrogation, as the noble Lord suggested. All hooding was stopped on 26 September 2003. Ministers were made aware on that date that the permanent joint headquarters had issued direction that the practice should cease forthwith. That means hooding on arrest as much as any other hooding of detainees, whether or not they were being interrogated. I hope that that makes the position slightly clearer.

Lord Redesdale

My Lords, I apologise for interrupting at this late hour, but obviously we will return to this issue many times in future. My understanding was that the British Army stopped using hooding in 1971. Perhaps the Minister can clarify that it was not a new procedure being used in Iraq.

Lord Bach

My Lords, that is not the position as I understand it. The Parker report and a Statement made to both Houses on 2 March 1972, which I have taken the trouble to read before coming into the Chamber, made clear that what was being talked about were a number of methods of interrogation, including hooding. As I have said, it has always been accepted that on rare occasions—perhaps on arrest—hooding may be acceptable. There is certainly nothing in the Statement of the noble and learned Lord the Lord Chancellor in this House to suggest that that was not true.

9.15 p.m.

Lord Lester of Herne Hill

My Lords, I entirely agree with that. What I still do not understand is that if there was nothing wrong with hooding, and if it was not being used in interrogation techniques, what was it that caused the practice to be abandoned? Did it in any way relate to what the Red Cross had been saying, not in the February report, but in earlier conversations with the authorities?

Lord Bach

My Lords, I think that the noble Lord will have to do with the fact that hooding was stopped. It was stopped at that time. I am not in a position to give the actual reason why that order was given, but it was given, and since that time, there has been no hooding of any kind.

The noble Lord asked what disciplinary actions were taken to punish the perpetrators. Any allegations will be taken seriously and thoroughly investigated, and if British forces are found to have acted unlawfully, appropriate action will be taken. As far as redress is concerned, there is a standard procedure for making claims against the UK authorities. I am advised that the redress that is available is that an Iraqi civilian may bring a claim against the UK authorities under UK national law. That procedure was established under the auspices of the Coalition Provisional Authority. I hope that that more or less goes some way to answering the questions asked by the noble Lord, but I suspect that it is not entirely satisfactory, given the look on his face.

Lord Lester of Herne Hill

My Lords, on that last point—

Lord Judd

My Lords, before we leave this point, will my noble friend the Minister write to the noble Lord, Lord Lester, and place a copy of the letter in the Library? There is a difficulty here. When the Minister says that he is not in a position to say why the order was given, is he suggesting that he is not in a position on security grounds, or that he does not know? I have been a Minister, and you cannot possibly know everything. Points are raised in debate that sometimes need to be looked into and answered afterwards. There is some anxiety as to how far the Ministers are in the driving seat. Therefore, it would be helpful if we could have some more information about the rationale for that very appropriate and right decision having been made when it was.

Lord Bach

My Lords, the reason why—

Lord Lester of Herne Hill

My Lords, I have such a sad life that I have read the law of administration for the state of Iraq for the transitional period. It is terribly important, and I am grateful to the Minister. Contrary to my reading of the law, what the Minister has just said is that victims of any abuses in Iraq have a remedy in Iraq under the administrative law in Iraq, or have a remedy in this country. That is very important, if that is the case. And if that is the case, it greatly reassures me, because it means that we are properly accountable in those very rare cases where there have been abuses.

I have read this 8 March 2004 law obtaining in Iraq, and although it protects the human rights of Iraqis against Iraqi institutions, I did not read it as giving any remedy against the coalition forces under that law. I could not find any other law under which there would be compensatory remedies—civil redress, as distinct from English criminal sanctions and so on. I wrote to the Minister to try to clarify that.

I agree with the noble Lord, Lord Judd, that we should not extract information like pulling teeth at this time of night. It is a messy way of doing it. I am not suggesting that the Minister is not being entirely coherent, but if a coherent, comprehensive, statement could be placed in the Library, that would certainly meet all my legitimate needs.

Earl Attlee

My Lords, I would like to support—

Lord Bach

My Lords, let me deal with these points first if I may.

The noble Lord, Lord Lester, should be careful in quoting me. I will read again what I said: any Iraqi civilian may bring a claim against UK authorities under UK national law. That procedure was established under the auspices of the Coalition Provisional Authority. It made no comment as to in which country or how that should be done. I have to stand by that.

It is a sensible idea that I write in due course to the noble Lords dealing with these difficult and complicated matters and put a copy of the letter in the House Library. The noble Lord having been gracious enough to let me know what his questions were, my purpose today was to try to answer him as frankly as I could. I want to make it absolutely crystal clear that it is not accepted that hooding has been used in the course of interrogation in Iraq.

If allegations are made to that effect, they will be taken extremely seriously.

Earl Attlee

My Lords, I am grateful that the Minister accepted the suggestion of the noble Lord, Lord Judd.

Can his response include the difference between war fighting operations, peace support operations and counter-terrorism operations?

Lord Bach

My Lords, I will consider the noble Earl's suggestion. I come to his speech now, and I will be brief. He suggests that I write to him about those separate questions, and that is exactly what I will do.

It is always good to hear from the noble Earl because of his experience in the field as a serving officer of the Territorial Army. I thank him for what he has said and I will write to him in due course.

We have had a good debate on an important subject at an important time. I hope that the House will feel that it has been treated fairly this evening.

On Question, Motion agreed to.