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Army, Air Force And Naval Discipline Acts (Continuation) Order 1993

Volume 547: debated on Friday 9 July 1993

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2.31 p.m.

The Parliamentary Under-Secretary of State, Ministry of Defence
(Viscount Cranborne)

rose to move, That the draft order laid before the House on 26th May be approved [32nd Report from the Joint Committee].

The noble Viscount said: My Lords, the purpose of the order is to continue in force for a further year the Army Act 1955 and Air Force Act 1955 and the Naval Discipline Act 1957, which together provide the basis for the disciplinary arrangements of the three services. The concept of annual parliamentary approval of the special legal position of the service personnel, subject as they are to the constraints of military discipline as well as to the rule of civil law, is a long-established one in British constitutional practice. As your Lordships also know, every five years the service disciplinary system is reviewed in depth, and an Armed Forces Act is passed making such amendments to those systems as are considered necessary. The last time such an Act was passed was in July 1991. As your Lordships will recall, the Select Committee in another place which considered the Armed Forces Bill made a number of recommendations in its report published in April 1991. With your Lordships' permission, I should like to refer to a couple of those recommendations and to report progress.

The Select Committee made two recommendations in particular about the employment of young people in the armed forces. The first recommendation was that the Ministry of Defence should examine the terms of enlistment for under 18 year-olds to make it easier for them to leave, if they wished to do so. There is no evidence to show that there is widespread dissatisfaction among under 18 year-olds either about their terms of service or the advice they receive on their rights to claim discharge. I should emphasise that any extension of a minor's rights to leave would cause unacceptable manning difficulties for the services. Nevertheless, in the light of the committee's views, the services have reviewed their position.

The Navy already had provision to allow discretion to discharge under-18 year-olds who find they are unable to settle to service life. The other two services have now adopted a similar provision. These arrangements are in addition to the statutory rights of discharge. I can assure your Lordships that the recruiting staff are meticulous in ensuring that recruits and their parents or guardians fully understand the

commitment being entered into; and, of course, recruits under the age of 18 require their parents' or guardians' written consent to enlist, and all receive a "Notice Paper" which states their terms of enlistment and the earliest date at which they can leave. In addition to this, there is a leaflet given to all new recruits, entitled Your Rights and Responsibilities, which has now been amended to include a note on the right to claim discharge; this leaflet was re-issued last autumn.

The second matter to which the Committee referred was ethnic monitoring. We announced in May 1992 in another place the decision to introduce in-service ethnic monitoring. I know that a number of your Lordships have, over the years, expressed an interest in the subject. That will involve the distribution of ethnic monitoring questionnaires to all serving personnel and the analysis of these questionnaires will follow.

We intend to begin the ethnic origin survey later this year. It is disappointing that, despite the efforts made to encourage their recruitment, the ethnic minorities still only represent about 1 per cent. of all recruits. I think it is important to emphasise that the services remain fully committed to the idea of increasing recruitment from the ethnic minorities. However, it is equally true that it is likely to take many years of sustained effort before we see any significant increase.

The services have a range of measures in place to achieve this aim, including: increased use of recruiters from ethnic minorities; better representation of ethnic minority service personnel in recruiting literature; special training for recruiters; procluction of bro-chures in ethnic minority languages to target parents; and development of contacts with the appropriate communities.

We can do a great deal in this area, but nevertheless there is probably no substitute for example. The best proof of the good intentions of the services that a full career with satisfying promotion opportunities is available will be when we see more and more senior officers coming from the ethnic minorities as a result of careers recruitment.

I remind your Lordships that the services are fully integrated organisations and that we do not tolerate: discrimination. In view of complaints from your Lordships in this area, I emphasise that all Ministers and all senior officers and officials are wholly committed to the idea that any complaint of racial abuse or discrimination will be thoroughly investigated. If it is substantiated, appropriate action will be taken against the perpetrators.

There is another matter to which I should address myself, although we discussed it at the same time last year during the debate on the order. That is homosexuality. Your Lordships will recall that the Select Committee acknowledged that the Armed Forces should not be required to accept homosexuals, but recommended that homosexual activity of a kind that is legal in civilian law should no longer constitute an offence under service law. I told your Lordships last year that that recommendation had been accepted. This change in the law means that a serviceman who engages in a homosexual act that is legal in civilian law will not be prosecuted under service law, but will nevertheless be administratively discharged, as the phrase goes. However, I should emphasise that that change will not prevent the prosecution under service law of a serviceman who has committed an otherwise legal homosexual act where the grounds for prosecution were, for example, that the act was to the prejudice of good order and discipline or military efficiency.

I further informed your Lordships last year that action would be taken to amend that part of the Sexual Offences Act 1967 which relates to the armed forces. Unfortunately, a suitable legislative opportunity to make the appropriate amendment to the law has not yet presented itself. I stress that it is a situation that we intend to remedy as soon as the legislative programme allows. Such a lacuna is unsatisfactory. It is a piece of tidying up which I am sure your Lordships would encourage the Government to pursue as soon as possible. Nevertheless, any delay in amending the legislation does not affect agreement to the Select Committee's recommendations. Indeed, the services have taken action to follow the recommendations administratively until such time as the law is changed.

The Select Committee also recommended that service courts should ensure that sentencing is equitable between the sexes. That gives me an opportunity to tell your Lordships that sentencing guidance has indeed been amended in the wake of the Select Committee's recommendations and that other relevant regulations are being amended where appropriate.

There may be a number of other matters which noble Lords may wish to raise during the course of this short debate and, with your Lordships' permission, if given the opportunity to reply, I shall endeavour to address myself to them. In the first instance, that is all I want to say at this stage except for one matter. It is perhaps a truism in this House to pay tribute to the professionalism and dedication of the men and women who serve in our armed forces. Nevertheless, I believe it is important that all in this House should take the opportunity to do so.

It is all too easy to forget those people, particularly in Northern Ireland, and the risks that they run, for which they sometimes receive very little thanks or appreciation. I have no doubt that their very considerable professionalism and personal effectiveness is enhanced by the fair and equitable system of disciple that operates in the Navy, the Army and the Air Force. Morale is considerably heightened by that sense of equity and fairness in the administration of discipline. As your Lordships will know, that system is founded upon the three service discipline Acts. Therefore I feel that it is entirely appropriate that I should ask your Lordships' approval for the draft order laid before the House on 26th May. I beg to move.

Moved, That the draft order laid before the House on 26th May be approved [ 32nd Report from the Joint Committee].—( Viscount Cranborne.)

2.44 p.m.

My Lords, the subjects raised on these annual debates are extraordinarily unvarying and familiar. That is a reflection of the failure of the Government to respond quickly and adequately to the recommendations made in Parliament. There is, for example, the noble Viscount's statement that there has been no time for a very short, simple and popular measure to remove the disparity between civil and military law on the matter of homosexuality.

I cannot see why there has been no time for such a measure. I can think of other Bills presented to Parliament which have taken a lot longer and which have been much less desirable and far less popular. I recall the time we spent on the War Crimes Bill and the time that we are now spending on the Railways Bill.

It may be that the Government are not seeking popularity. There is much evidence for that. If they are not seeking popularity, they are being extraordinarily successful at the present time, so much so I gather that the vote of support for my party is now well in excess of the vote of support for the noble Viscount's party.

It is time we had a simple Bill on the question of homosexual law. It is a difficult subject. Though I have personal opinions I am tentative about them in that they are coloured by my active service both as a commissioned officer and in the ranks over 50 years ago. Nevertheless, it is my view that in relation to recruitment and keeping people in the Army, the test should be conduct and not orientation. Both homosexual and heterosexual conduct which is prejudicial to good order and discipline should be punished, even if it amounts to no more than fairly mild sexual harassment. If homosexuals and heterosexuals cannot observe that degree of self-discipline, they should not have joined the forces in the first place. Service life is unique in many respects and calls for unique standards of discipline, including self-discipline.

Another point arises where the Government's view has been quite unchanged, despite powerful arguments put on both sides. It concerns capital punishment. The Government's view is that the threat of capital punishment should remain. They make that statement acceptable by invariably adding that that threat never has been and never will be carried out. That is what we were told last year. When the noble Viscount replies he will probably say the same thing. It has always seemed to me that that attitude is both illogical and weak. If that threat is considered to be a useful and effective deterrent, then the Government must seriously uphold it. As they do not uphold the threat, there is more likelihood that it will be wholly ineffective.

I invite the noble Viscount, when he replies, to give us an example of a situation where the threat of capital punishment may be effective. Let him paint a scenario in which, in conditions of extreme stress, a serviceman's conduct might be changed by the prospect—which has been made utterly remote and improbable by official statements and regulations—of him facing a firing squad. I challenge him to paint that scenario. In my view the time is long past when the disparity between military and civil law on that point should be removed.

I wish to raise one further point concerning ethnic minorities and the need for their greater representation in the forces. I do not question the goodwill of the Government on that point. They have made genuine efforts. But how disappointing are the results. Why do we have to wait for a questionnaire which we were promised three years ago? We are told that the process will not start until the autumn. I do not understand the delay. Perhaps the Minister can explain that.

It is profoundly disappointing that only around 1 per cent. of our forces are recruited from ethnic minorities. Perhaps the noble Viscount can tell us what is the most senior level a person of ethnic background has reached in the Armed Forces. How many commissioned and non-commissioned officers are there? Of course, conscription would solve the problem. Nevertheless, when we see in the United States of America that the most powerful and senior military figure in the world is a black man, it makes one despair of the situation in this country. We need to continue to make the most enormous efforts in this field.

Those are the only points I wish to put to the noble Viscount. But the fact is that another 12 months have passed with very little improvement on any of the subjects that I have raised. The admiration of the British public for the forces has probably never been higher—and never better deserved—than it is now. We must support the order but we hope that the Government will have much better things to report next year when we come to consider it again.

2.50 p.m.

My Lords, I am grateful to the noble Viscount for introducing the order, and I am also happy to join him in the tribute he rightly paid, as indeed we both paid the other day, to the performance of our Armed Forces. It is without doubt due to them that we are living in this country in a comparatively safe environment, although there are dangers on all sides. Nevertheless, we all appreciate, as the noble Lord, Lord Mayhew, said, the efforts of the Armed Forces and the way they conduct their business.

We have no intention of opposing the order because if we were to do so the Armed Forces might, under the Bill of Rights, cease to exist. Therefore, what we are doing is exploring certain areas which, as the noble Lord, Lord Mayhew, said, have been explored in the past and on which there has been relatively little action. I would number four areas. The first, as the noble Lord, Lord Mayhew, pointed out, is the question of capital punishment. It is extraordinary that we still have in the Armed Forces discipline five matters which are apparently subject to the death penalty. They are: serious misconduct in action; obstructing operations; mutiny or incitement to mutiny; failure to suppress mutiny; and assisting the enemy. The noble Lord, Lord Mayhew, invited the noble Viscount to describe a scenario where one of these matters could be applied. I shall help the noble Viscount by describing one such scenario.

Let us suppose, as the noble Viscount has mentioned Northern Ireland, that an IRA sniper aims his rifle at a British soldier. If he hits the British soldier and the British soldier is killed, the IRA sniper, if he or she is apprehended and convicted by due process of law, will not suffer the death penalty. If, on the other hand, the British soldier, appreciating that a sniper has aimed his or her rifle at him, runs away, then that soldier under our present disciplinary procedures is liable for capital punishment. That cannot be in any conceivable logic right. It is about time that the Government took a grip and lined up the disciplinary procedures, particularly in terms of capital punishment, in our Armed Forces with civilian procedures. In other words, treason is the only crime which should carry capital punishment. That should be the case for the Armed Forces as well as for civilians.

The noble Lord, Lord Mayhew, also brought up the question of homosexual activity in the Armed Forces. The noble Viscount was kind enough to say that the Government had paid attention to the report of the Select Committee in another place. The problem that I have, apart from the legislation problem to which I shall come in a moment, is that when I read what Mr. Hanley said in introducing the order in another place I find myself in something of a difficulty. Mr. Hanley said:
"The services continue to believe strongly that the special conditions of service life preclude acceptance of homosexuals and homosexual behaviour".—[Official Report,Commons, 21/6/93; col. 124.]
For the life of me I cannot see why, just because somebody is a homosexual—leaving aside whatever practices he or she may engage in—that is in any sense a question of military discipline and discharge. It is for the Government to say what they think about homosexual behaviour, but homosexuality in itself seems to me to be something which many people have. They may not engage in homosexual activity. While decriminalising homosexual activity and keeping it as a criminal offence from the point of view of the Armed Forces, that is a very odd proposition. That is what I understand the Minister said in another place. I very much hope that the noble Viscount will correct what the Minister said or enlighten me by saying that I am wrong in the matter.

If (as he said) the noble Viscount is worried that there is no legislative time for implementing the recommendations of the Select Committee on homosexuality', perhaps I may offer a suggestion. I am perfectly prepared to introduce in this House a Private Member's Bill or to encourage one of my noble friends to do so and at any time. If the Government were to say that they would support it, the Bill would go through the normal processes in your Lordships' House and then go to another place. Then the Government will decide there whether they wish to give it time. I make that offer in all sincerity and with the greatest degree of good will. It is a bit odd that we are told time and again as regards many recommendations that there is no legislative time. There is always legislative time available. I make that offer to the noble Viscount.

As regards ethnic monitoring, which the noble Lord, Lord Mayhew, mentioned, it is very disappointing that we have made so little progress. When the noble Viscount comes to reply, I hope very much that he will be able to tell us not just that we are sending out a questionnaire 18 months late, but that we are stepping up the recruitment of ethnic minorities into our Armed Forces. After all, traditionally, and in the loosest secular sense, in times of high unemployment there is high recruitment for the Armed Forces. That has always been the case. It is also the case that we are in a period of high unemployment and we are likely to continue to be so. Indeed, unemployment falls hardest on the ethnic minorities.

Therefore, it would be sensible and logical if the ethnic minorities were encouraged, in one way or another—it is for the Government to decide which way they do it—to join the Armed Forces. That would redress the imbalance which all noble Lords regret.

My last point concerns the role of women in the Armed Forces. I understand that they are now allowed and indeed encouraged to drive armoured personnel carriers in the front line, particularly in Northern Ireland. Are there to be any further changes in the role of women in the Armed Forces? If so, can the noble Viscount say what they are to be and how are those decisions arrived at? When the noble Viscount replies, I hope that he will be able to give us some information on that subject.

I join with the noble Lord, Lord Mayhew, in saying that the Government have many questions to answer. There are difficulties and there have been difficulties. We seem to be debating the same questions over and over again, year after year. Nonetheless, that does not discourage me from giving a welcome to the Motion because I believe that our Armed Forces should be encouraged. If I have asked what I hope are some rather pertinent questions, that does not mean in any way that we not not appreciate the role that our Armed Forces play.

2.59 p.m.

My Lords, I am extremely grateful to the noble Lord, Lord Mayhew, and the noble Lord, Lord Williams of Elvel, for the tributes that they paid to our Armed Forces. The last thing that I would ever impute to the noble Lord, Lord Williams, is the capacity not to ask pertinent questions. He has already proved that he is well able to do that.

Both noble Lords made a number of points which, with your Lordships' permission, I would like to address. I start with the question of legislation on homosexuality. Both noble Lords expressed a degree of disappointment on that point, which I share. There is no doubt at all that time can be found for legislation, but there is never enough time, as I am sure that both noble Lords know, for introducing all the legislation that is necessary for the Government's programme.

I ask the noble Lord, Lord Mayhew, to ponder what seems to me to be a fact—that what he was advocating is a bit of a will o'the wisp. He seemed to be advocating the idea that Her Majesty's Government should pursue instant popularity. That is something which we eschew most sternly, being convinced that over the lifetime of a Parliament there is no doubt that the longer-term view will commend itself to the electorate rather more perhaps than the short-term objectives of the noble Lord's party. I am content to await the verdict of the electorate at the next general election to see whether the electorate agrees with the noble Lord or with me.

I can advise both noble Lords, however, that we should very much like to find the time for the necessary legislation long before the next quinquennial Act is due. I take seriously the suggestion of the noble Lord, Lord Williams, of using a Private Member's Bill in your Lordships' House. If he will allow me to do so, I should like to take that idea away and think about it. If it seems an expedient method of proceeding, perhaps I may take the liberty of advising him.

On the question of ethnic minorities, again I must confess to a very high degree of sympathy for the views expressed by both noble Lords. It has taken a great deal longer than I should have liked to introduce the new procedures. Nevertheless, I think that I can reassure both noble Lords that those procedures will be introduced and working before the end of this year. I am delighted to be able to say that that is finally happening. I regret the delay, but the fact that it is now happening at least gives something of the lie to the suggestion of the noble Lord, Lord Williams, that no progress is made from year to year. Progress is sometimes a little like the mills of God. Nevertheless, we grind slowly on and progress is made.

Both noble Lords raised other pertinent points. I shall not weary the House with an account of the way in which we are trying to step up recruitment from the ethnic minorities. I hope that the noble Lord, Lord Williams, will accept that a very great deal is being done to enable people from the ethnic minorities to gain access to the Armed Forces. I gave some examples earlier. If the noble Lord, Lord Williams, would like at any time to see for himself some of the efforts that we are making, he will always be extremely welcome.

The question of the death penalty exercised both noble Lords. Superficially at least, I see that the services' view may seem a little antiquated. After all, the legislation governing the matter of high treason goes back as far as 1795. I have a copy of the relevant parts of the Act in front of me, but it would be unwise if I were to weary your Lordships too much with a trip down memory lane.

The noble Lord was right when he said that the last Armed Forces Bill passed in 1991 made no change to the powers of courts martial to pass a death sentence. I have to emphasise—from what he said, the noble Lord, Lord Mayhew, is well aware of this—that while the death penalty is retained it is a non-mandatory sentence. The policy is that such sentences should never be carried out in peacetime. The noble Lord, Lord Mayhew, was correct to suggest that that would be part of my answer. The fact that he predicted it does not make it any the less true.

The noble Lord, Lord Williams, was right to say that if the death penalty were applied it would apply only to five of the most serious offences which he enumerated. In wartime, such acts are likely not just to jeopardise national security but to put at risk the lives of other servicemen. There are a considerable number of safeguards governing the use of the death penalty. Your Lordships may like to reflect upon the fact that the nearest civil criminal offence of that nature—I suggest that it is entirely comparable with the five offences enumerated by the noble Lord, Lord Williams—is an act of high treason for which the death penalty is still mandatory in this country.

It is fair to say that in wartime, with all the unpredictable strains that apply, it is reasonable that the death penalty should remain in service law. Despite the pleas of both noble Lords, we have no plans to change that position.

My Lords, I am sorry to interrupt the Minister, but so far as I know, unless anything has happened while I have been in the Chamber, we are not at war. We are at peace. The Minister said that the intention was that the death penalty should not be exercised for any of the offences I enumerated during peacetime. Would it not be sensible, therefore, to eliminate the death penalty? If we do get into a war, I should be the first to join with the Minister in saying disciplinary measures of that form might well be required.

My Lords, I am grateful to the noble Lord, Lord Williams, for his acknowledgment that different circumstances apply in wartime. However, I am sorry that he feels that the assurance I have given him, that the policy in peacetime as it is, is insufficient. It would he inconceivable for such a sentence to he carried out in peacetime. I should have thought that it was an entirely reasonable provision for military legislation which, by its very nature, anticipates states of war being possible. Defence, after all, is an insurance against war, and, sadly, when war breaks out, it is up to the Ministry of Defence to ensure that the country is defended. It is consistent with the nature of the Ministry of Defence for the situation to be as it is. I am sorry that the noble Lord, Lord Williams, and I find ourselves disagreeing over the matter.

The noble Lord asked me to comment about the position of women in the Armed Forces. A great deal has happened on that front, despite the suspicions of both noble Lords that that is not so. The mills may have been grinding rather faster there than in other areas. Combat roles in service ships and aircraft have been opened to women in the Navy. The exception, of course, is submarines, where the lack of privacy for men and women makes the introduction of women a little difficult. Nevertheless, there are now over 700 women in the Navy serving at sea.

As regards the Army, the Women's Royal Army Corps was disbanded on 1st April 1992. Women are now integrated with their employing corps. The Army is developing proposals for the introduction of gender-free physical testing. I am pleased to see that the noble Baroness, Lady Seear, is not in the Charnbeir to pull me up on military expressions, which is her wont in your Lordships' House. Physical capacity rather than the sex of the applicant will determine suitability for a particular specialisation.

As regards the Royal Air Force, women are now employed in almost all branches and on virtually all tasks without significant restriction. Your Lordships will be aware of the recent publicity attendant upon the qualification of fast jet pilots, who are women, for the first time in the history of the Royal Air Force.

That is all I wish to say in response to the points made by both noble Lords. I express my gratitude to them for the commendable comments which they made about the Armed Forces and for the support that they have given to the order. I associate myself emphatically with those sentiments. I hope that your Lordships will feel able to give the order the fair wind which I believe it deserves.

On Question, Motion agreed to.