My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 11 [Misconduct towards a superior officer]:
Page 6, line 12, leave out “or disrespectful”
The noble Lord said: My first task is to declare an interest as the recently appointed president of the Association of Military Advocates and to indicate that I am currently engaged in a court martial and therefore have some interest in this matter.
Clause 11(2) sets out an offence in these terms:
“A person subject to service law commits an offence if … his behaviour towards a superior officer (‘B’) is threatening or disrespectful”.
The amendment would remove “or disrespectful”.
The basis of my argument is that threatening a superior officer and being disrespectful to a superior officer are two entirely disparate situations. The huge distinction between making a threat and being disrespectful is recognised by subsection (4), which provides for a maximum of 10 years’ imprisonment for the former offence but only two years for the latter one. My objection to the word “disrespectful” is that it is so wide that it could cover anything that an officer believes to be disrespectful to him—dumb insolence, walking away, muttering under the breath and so on. It lacks clarity and could lead to differing decisions depending upon the make-up of the court martial court. Indeed, the Joint Committee on Human Rights was concerned to seek from the noble Lord, Lord Drayson, a definition of “disrespectful”.
Another problem is that there is no statutory defence. It is very interesting to compare this provision with Article 89 of the American Universal Code of Military Justice, which creates a similar offence, but separately from that of being threatening. The code defines the offence in this way:
“Any person subject to this chapter who behaves with disrespect towards his superior commissioned officer shall be punished as a court-martial may direct”.
But, unlike this proposed legislation, it contains a definition of “disrespect”:
“Disrespectful behavior is that which detracts from the respect due the authority and person of a superior commissioned officer. It may consist of acts or language, however expressed, and it is immaterial whether they refer to the superior as an officer or as a private individual. Disrespect by words may be conveyed by abusive epithets or other contemptuous or denunciatory language. Truth is no defense. Disrespect by acts includes neglecting the customary salute or showing a marked disdain, indifference, insolence, impertinence, undue familiarity or other rudeness in the presence of the superior officer”.
Your Lordships may appreciate my comment that “disrespectful” is an extremely broad idea. There is in the American code, however, a special defence:
“A superior commissioned officer whose conduct in relation to the accused under the circumstances departs substantially from the required standards appropriate to that officer’s rank or position under similar circumstances loses the protection of this article. That accused may not be convicted of being disrespectful to the officer who has so lost the entitlement to respect protected by Article 89”.
Your Lordships may feel that that is a very sensible, special statutory defence. Furthermore, unlike the two-year period of imprisonment that is the maximum for the offences suggested in the Bill, the maximum punishment in America is a bad-conduct discharge, forfeiture of all pay and allowances and confinement for one year.
Disrespect is a concept that ought not to be linked as a criminal offence with threatening behaviour, which of course is very serious. I cannot think of any instance of being disrespectful which would not be covered by the familiar offence repeated in Clause 19 of conduct,
“prejudicial to good order and discipline”,
which, incidentally, carries exactly the same penalty. But case law on conduct prejudicial to good order and discipline allows a defendant to argue that he spoke the truth or that his offending words or gestures were not prejudicial to good order and discipline.
I am indebted to Mr Gilbert Blades, a very experienced solicitor-advocate in this field, for his recollection of a case in which a sergeant called the regimental sergeant-major’s argument at a sergeants’ mess a load of “unparliamentary language”. I will not give your Lordships the precise terms. The sergeant was charged with conduct prejudicial to good order and discipline, and the tribunal found that the regimental sergeant-major’s argument had indeed been a load of unparliamentary language.
The purpose of the amendment is to separate the offence of being “disrespectful”; at the very least it should be clearly defined, and a special defence similar to that set out in the United States statute should be incorporated in it. But since that would take some drafting, I will leave it for a later stage of the Bill. I beg to move.
We have some sympathy with the proposal by the noble Lord, Lord Thomas of Gresford, but I want to be clear about its exact nature. The amendment seeks to remove the word “disrespectful” from the Bill altogether. We are not sympathetic to that; we believe that it has a place in military law. Respect for the commission, and everything that derives from that, is a key part of discipline in our Armed Forces.
The amendment severs “disrespectful” from “threatening”, but does not seek to replace the word in any part of the Bill. Having listened to the noble Lord, Lord Thomas of Gresford, I sense that his rather thorough exegesis of the American law suggests that he might be prepared to entertain the reintroduction of “disrespectful” in some other part of the Bill if it contained both a careful definition and a statutory defence. I see the noble Lord nodding, so that is clearly the direction in which he is going.
Perhaps I may respectfully suggest to the Minister that the proposal of the noble Lord, Lord Thomas, as he outlined it, is worthy of serious consideration by the Government. We would need to think carefully about it; but we would not be in favour of removing altogether the concept of disrespect.
Serving in the Armed Forces is unlike any other activity. The notion of respect for superior authority is absolutely vital to operational effectiveness in the field. The notion of disrespect is a component of it. However, the noble Lord, Lord Thomas of Gresford, has rightly raised an important point and we look forward to hearing the Minister’s reaction.
I felt a great deal of sympathy with the words of the noble Lord, Lord Thomas of Gresford, except on two matters. If my recollection is right, he said that “disrespectful” could include what a superior officer thought was disrespectful. Clause 11 is sufficiently objective, as it states that a person commits an offence if his behaviour “is” threatening or disrespectful. The mere subjective view of a superior officer would not be sufficient.
The second point on which I quarrel slightly with the noble Lord, Lord Thomas, is in his reference to Clause 19, which sets out the familiar offence of doing something which is prejudicial to good order and service discipline. I recollect that the phrase was “military discipline” in my day, but it is the same thing and the offence is enormously wide in scope. However, I notice that Clause 19 states that an offence is committed only if a person,
“does an act that is prejudicial”.
Therefore, some of the examples of disrespect given by the noble Lord under Clause 11, which included words which were disrespectful, would not be covered by the existing Clause 19.
However, the noble Lord’s nod in response to the noble Lord, Lord Kingsland, indicated that he does not want just to be negative and to delete “disrespectful”, but, ideally, would wish—perhaps it is more appropriate for the Minister to do it than him—to introduce a separate clause as an amendment so that there is a clear distinction between “threatening” and “disrespectful”. I entirely agree with the argument of the noble Lord, Lord Thomas, that it is not appropriate to include in the description of the same offence those two, very disparate matters.
I have listened carefully to the exchanges across the Committee on this matter. It goes to the heart of the ethos of the Armed Forces. An important part of that ethos is to make clear the need for respect towards a senior to support the command relationship. The lack of a definition of “disrespectful” is not a problem, because all members of the Armed Forces are given clear training in how to address their superiors and how to behave towards them. In this context, what amounts to “disrespectful” within the ethos of the Armed Forces is clear.
Therefore, the concern that the noble Lord, Lord Thomas of Gresford, has relating to the word being too broad and not defined is not in practice an issue that would cause us a problem. We recognise that there is a judgment to be made on the maximum sentence of 10 years, which is a reduction from an indeterminate period of imprisonment in these circumstances, and we think that 10 years is appropriate.
The Minister should look again at subsection (4), which says that 10 years is the maximum for—no, he is right, in fact. The Bill says that,
“in the case of an offence … under subsection (2) of behaviour that is threatening, ten years”.
It does not refer to behaviour that is disrespectful. In that eventuality, the Bill proposes two years.
I am very grateful for the support that I have had from noble Lords. I shall take the matter away and see whether I can agree with the Government on an appropriate way in which to split “threatening” from “disrespectful”, which might be more appropriate and of greater utility in the field of military offences. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 32 not moved.]
Clause 11 agreed to.
Clause 12 [Disobedience to lawful commands]:
[Amendment No. 33 not moved.]
Clause 12 agreed to.
Clauses 13 to 16 agreed to.
Clause 17 [Disclosure of information useful to an enemy]:
[Amendments Nos. 33A to 34B not moved.]
[Amendment No. 35 had been withdrawn from the Marshalled List.]
[Amendment No. 36 not moved.]
Clause 17 agreed to.
Clause 18 [Making false records etc]:
Page 8, line 20, after “law” insert “, or a civilian subject to service discipline,”
The noble Lord said: I shall speak also to Amendments Nos. 40, 41 and 201A. Amendment No. 37 seeks a belated response from the Government. My honourable friend the Member for Aldershot in Committee in another place was promised a note clarifying when civil servants are accountable to the military justice system. I would be grateful if the Minister could respond now or in writing to me before Report, as this important issue seems to have slipped through the net.
Amendments Nos. 40 and 201A deal with the inaccurate certification of service material, which was constructively debated in Committee in another place. Amendments tabled by my honourable friend Robert Key raised important questions about the certification of military equipment. If ships and aircraft are included in the Bill as equipment but must have proper certification, equipment used by the Army should also be included. There is a safety issue here: tanks and artillery guns, along with other equipment, can be dangerous to operate. They must of course be certified correctly, and our amendments seek to achieve that by ensuring that “service material” as defined in Amendment No. 201A is included.
In Committee in another place the then Minister, Don Touhig, rightly found fault with our initial definition of service material. Therefore, we have provided a revised definition in Amendment No. 201A to the Supply Powers Act 1975 that is based on extant legislation that is sufficiently wide to meet the Minister’s concern. The amendment tabled by the noble Lord, Lord Garden, seeks a similar redefinition and we support his objectives, but the Liberal Democrat amendment limits the expansion of applicable equipment to combat vehicles, rather than service material. We have drafted the definition of “service material” to ensure that it is wide enough to cover all applicable equipment. In Committee in another place the Minister gave a clear assurance that the Government would consider this further and that he would write to Committee colleagues. We await with anticipation the Minister’s response.
Amendment No. 41 would insert a new clause entitled “Dangerous conduct”, which seeks to clarify how our Armed Forces are affected by health and safety legislation. This was also debated in Committee in another place. Again, my honourable friend the Member for Aldershot was promised a letter. The legislation will apply to our men and women serving on the front line so we must get it right. I beg to move.
I remind the Committee of my interest as a serving officer in the TA, subject to military law as I speak. I have tabled Amendment No. 38 in this group. Clearly, it is vital to our democracy that Ministers are honestly and accurately briefed by the military. Noble friends in this House have been led astray because of inaccurate briefing from the military and have had to apologise to the House at the Dispatch Box. My amendment would ensure that a specific offence is committed if Ministers are inaccurately briefed in the way that it describes.
I have tabled one amendment in this group but I shall speak first to the other amendments. We are generally supportive of those amendments, particularly Amendment No. 37, which proposes that the offence should apply to civilians. However, I have a problem with the aspect of the offence proposed by the noble Earl, Lord Attlee, that connects parliamentary business and the supply of false information. It seems to me that supplying false information to a Minister will probably be a reasonable offence under military law without having to attach additional burdens of proof regarding the parliamentary business aspect.
Several parts of the Bill deal with what is required of official records. Amendments Nos. 40 and 41, which stand in the name of the noble Lord, Lord Astor of Hever, and which concern records and dangerous conduct, are entirely sensible. My Amendment No. 59 in this group relates to what is covered by inaccurate reporting. Clause 36 is entitled “Inaccurate certification”, but it might be much better if we ordered the Bill in such a way as to have all these matters in one place. In any event, we need to realise that the technology is moving on. I accept the comment of the noble Lord, Lord Astor, that even with the inclusion of land combat vehicles the wording may still be too narrow, but we certainly do not want to restrict the provision to aircraft and ships. The technology that is associated with all forms of military activities is becoming highly complex and an audit trail of servicing will be needed to record who has done what to equipment to ensure that everything is all right.
Amendment No. 201A concerns the definition of “service material”. I have a slight worry that it is too narrow; it focuses too much on material used for defence and does not include things that are enabling.
I am sympathetic to the amendments. I believe that these provisions could be redrafted to make them clearer and to ensure that we have them all in one place, and I hope that the Government will want to do that. That would cover us in future rather than simply repeating what was in the service discipline Acts.
Clause 36 creates an offence relating to the signing of false certificates. The certificates are produced as part of the formal maintenance procedures for ships, aircraft and aircraft materials. Amendment No. 59 would extend the offence to cover certificates for all combat vehicles, as the noble Lord has said. We have considered this for land vehicles and equipment. Taking into account the fact that other systems are already in place for land vehicles, we have concluded that it would be excessively bureaucratic to extend such a system of certification to every combat vehicle. We are satisfied that existing systems are adequate. The noble Lord made the point that, as technology changes and vehicles become more complex, this is something that we need to review, but as we stand today we are correct. A failure by service personnel to carry out those checks and inspections effectively can amount to neglect of duty or other offences.
Amendment No. 37 would apply the offence of making false records to civilians subject to service discipline. We believe that civilians accompanying the Armed Forces should be subject to service discipline only so far as is essential for operational effectiveness and fairness. It would be wrong to make them essentially the same as service personnel when it comes to disciplinary offences.
Nevertheless, I was slightly tempted by Amendment No. 38, which would provide for up to two years’ imprisonment for giving me incomplete information about these amendments. More seriously, it would extend the offence of making false records far beyond the legitimate disciplinary purpose of ensuring that members of the Armed Forces do not make false official records or suppress them. It would cover the giving of “insufficient” or “incomplete” information, perhaps at a meeting or where a service man or woman knows that the Minister needs only a summary of the main facts, rather than complete information. It would hamstring the Armed Forces in their ability to make judgments about what information to provide to Ministers. There is clear MoD guidance on the provision of information to Ministers, which stresses the requirement for meticulous accuracy and highlights the fact that the consequences of misleading Parliament are severe and that those who do so may be held to account. But Amendment No. 38 is too wide and should be rejected.
Amendment No. 39 is unnecessary. It specifies that in Clause 18 the definition of a document should include any “electronic or computer document”. This is already covered by the definition in subsection (5); a document includes,
“anything in which information is recorded”.
Amendment No. 40 concerns inaccurate records. It would replace and extend Clause 36. Its scope would be greater than the current Clause 36 because it would relate not only to ships and aircraft but to any service material, and service material, as I will explain, would cover anything needed for defence purposes. As I said on Amendment No. 59, Clause 36 is restricted to the formal certification procedures for aircraft, aircraft material and any matter relating to the seagoing or fighting efficiency of Her Majesty’s ships. It is not appropriate to extend such formal procedures to a huge range of other service materials. Other offences apply to any inadequacy and record keeping—for example, disobedience to orders or neglect of duty. The amendment is therefore unnecessary. The amendment would also extend the offence to civilians, and I have already explained why I do not think that that would be right.
Amendment No. 41 concerns dangerous conduct. The proposed new clause in Amendment No. 41 would create a new offence of using service ships, aircraft and materials in a way that is likely to injure someone. It would apply both to service personnel and to civilians subject to service discipline. We believe that this is unnecessary in disciplinary terms, because dangerous conduct is already covered in the Bill by disciplinary offences such as neglect of duty, hazarding a ship and so on. The worst cases might also come within criminal offences such as manslaughter, but the proposed offence is far too wide. It does not require negligence and it does not require risk of serious harm, yet it seems to cover accidentally dropping some equipment on someone’s foot.
The amendment is also new in that it would apply to civilians subject to service discipline. It would effectively make criminal the careless handling of service material by a contractor or, for that matter, by a member of a service family in such a way that someone is likely to be injured. It is often tempting and sometimes seems attractive to add or create new offences, but this would be the wrong way to deal with dangerous conduct by contractors—even more so by other civilians subject to service discipline.
The new clause refers also to “service material”, a definition of which is provided in AmendmentNo. 201A. That definition of “service materials” would cover anything required for defence anywhere in “the Commonwealth”. I have already explained why I think that the proposed amendments using that term are too wide and would further complicate the already excessive requirements of the proposed offence. I wrote to the noble Lord after our debate on 24 July and the matters were dealt with in a memorandum to the Select Committee on the Bill.
I ask noble Lords not to press their amendments.
The Minister reads from his brief without responding to our debate. Regarding my amendment, which aims to widen the remit of incorrect certification of equipment, perhaps I may give him an example. He stated that it would be unduly bureaucratic for land systems to be included in addition to naval and air systems. However, in modern warfare, we increasingly need to ensure that there are proper devices for the identification of friend and foe. Such devices are and have been fitted to aircraft but, as we discovered in Gulf War 1, they are key pieces of equipment for the land forces, too, if they are not to suffer friendly fire incidents. I assume that the servicing and certification of such equipment, whether it is for the air or ground element, is equally important and that people should be held equally responsible for discharging their duties. Therefore, there must be a supervisory system of oversight to make that happen. This is not a question of there being a bureaucratic process; it is a question of life-and-death systems that depend on people correctly filling out records. Before I decide whether to press my amendment, I would like to hear a response that is not just about bureaucratic systems.
The noble Lord makes a fair point relating to the complexity of the military equipment in some cases and how that can be fundamental to its purpose and to issues such as those which he has described, including combat friend-or-foe identification. The question is how we produce a definition of the type of equipment—not relating to aircraft or ships but operating within the land environment—that would be covered by this clause. A definition that related to all service material or to all combat land equipment would be too broad.
I have listened to the noble Lord’s arguments and I will go away and think about this matter. The important point is that we produce a definition for service equipment used outside the air and maritime environment that enables us to discriminate between those service materials for which this clause would not be appropriate and those materials that we felt were sufficiently important and fundamental either to operations or to the safety of our Armed Forces. I have taken on board the noble Lord’s points and will see whether it is possible to do that in the Bill.
I apologise to the Minister for interrupting him. I misheard him and thought that he was speaking to Amendment No. 36.
I am grateful to the noble Lord, Lord Garden, for supporting our amendments. The Minister has given a full answer to them and there is much to digest. He said that he would go away and think about some of these issues. The noble Lord, Lord Garden, said that there could be some redrafting. We will read Hansard carefully and, in the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 38 and 39 not moved.]
Clause 18 agreed to.
[Amendment No. 40 not moved.]
Clause 19 agreed to.
[Amendment No. 41 not moved.]
Clause 20 [Unfitness or misconduct through alcohol or drugs]:
Page 9, line 26, after “orders” insert “or advice”
The noble Lord said: Clause 20, under which I have tabled Amendments Nos. 42 and 43, deals with unfitness or misconduct through alcohol or drugs. Although my amendment seems a fairly minor typographical one, it is important that subsection (2)(c) and (d) should provide a way out of being found guilty if a drug is taken or administered on the orders of a superior officer.
The clause does not quite meet the situation in which service men and women find that they need to take protective drugs—for example, in theatres of operations where they may be exposed to biological agents or whatever. Often, they are given advice rather than an order and are left to make a decision one way or the other. In the past, that advice has occasionally been quite strong but it has been short of an order, and one needs to take that into account.
Under this clause I also want to raise the question of performance-enhancing drugs, into which a great deal of research is being carried out. Again, I am looking to the future of warfare. In the United States, such drugs appear to have had an operational status. I should like the Minister to assure us that the clause does not give a superior officer the authority to order the use of a performance-enhancing drug. I think of a case in April 2002 in which two American pilots killed four Canadians on the ground and injured eight others. The subsequent inquiry into that friendly fire incident revealed that the pilots had been taking amphetamines—legally from the American perspective—supplied by the US Air Force. We certainly did not ever do that when I was in the Air Force. I trust that that is the case today and that we are not in any way legitimising that sort of event. Does the Minister believe that the clause addresses the problem or should we insert an amendment that would ensure that we did not administer to our service people drugs designed for performance enhancement?
So I have two questions: one concerns the advisory use of drugs; the other relates to whether there is an absence in the clause of a prohibition of the use of drugs for reasons other than protection. I beg to move.
I agree with the noble Earl, Lord Attlee—the noble Lord does talk a lot of sense on these points. He is right that a development is taking place in defence research on the whole area of performance-enhancing drugs. I shall go away and reflect on whether we need to be clearer about those drugs, but our central point of concern is that the amendment is broad: it would be a defence to take advice from a superior officer, whatever the reason for that advice, even if the officer was not medically qualified.
The central point is that the advice needs to come from an officer who is medically qualified. The noble Lord mentioned his own past experience within the military of the way in which these things were done. It is very important that the advice originates from medical advisers and is then passed on through the chain of command. That situation will be covered by subsection (2)(a), which provides a defence where a drug is taken or administered on medical advice. Under those circumstances, the serviceman would not be guilty of an offence.
Therefore, there are two important points. First, it is important that the advice originates from someone who is medically qualified and, secondly, it is important that the advice comes down through the chain of command in a way that validates that the advice, once given by the personnel's chain of command or commanding officer, has come from someone who is medically qualified.
I will take on board the point he makes about performance-enhancing drugs because there are developments on this issue. Having said that, I hope that the noble Lord will feel able to withdraw his amendment.
Before the noble Lord sits down, may I say that the word “enhancement” mentioned by the noble Lord, Lord Garden, worries me slightly? There are times when great fatigue sets in. Let us say, for instance, that a soldier has 30 miles to go to a friendly border, or such like, and that there is a pill or two that will help him to get there if he is greatly fatigued or stressed. It is a helpful thing; it is not a poisonous drug, or anything like that. I am a little worried about the word “enhancement”. On operations I have carried a pill in my pocket in times of dire trouble, which is taken mostly for fatigue. You take and it keeps you going for 24 hours. You had better get there or you crash out.
I am grateful to my noble friend and for the points made by the noble Viscount, Lord Slim. A considerable amount of research is taking place in this area of defence. Modern developments in the pharmaceutical and biotech industry have led to the possibility of a great broadening of the potential use and misuse of pharmaceuticals to both enhance performance and to change mood. I will consider whether the clause as drafted is sufficiently clear to take that important point into account.
I rise briefly to support what the noble Lord, Lord Garden, said, and to ask the Minister to clarify the question of advice. It seems to me possible that strong advice could be given by a superior officer that did not emanate from a doctor, but which none the less would greatly influencethe conduct of a subordinate. I do not think that the advice should be quite so narrowly construed as the Minister seems to have in mind. If you get advice from a superior officer, that should be sufficient.
I absolutely understand the noble and learned Lord’s concerns. This is an important point because we need to ensure that we have sufficiently defined the issue so that it is clear that if a soldier receives advice from his chain of command, it has gone through a validated procedure and originated from someone who is medically qualified. It would be wrong for people who are not medically qualified, and who have not been authorised to do so by the chain of command, to give advice to our personnel on the use of pharmaceutical agents in that way. Making it absolutely clear in the Bill is a positive step.
I am not absolutely happy about this. The medical advice is about the safety or otherwise of the drug. The use of the drug in order to enhance performance, or whatever it happens to be, may be an operational view. I am not too happy that the advice which emanates from the medical side is necessarily sufficient defence if the subordinate has been ordered by his superior to take a particular drug in order to enhance his performance. That enhancement of performance may be operationally essential. I understand that the Minister will take this away and think about it, which I accept, but I wonder whether he will bear in mind that distinction as well.
I do not know a great deal about this subject, but there are at least three categories: medical, operational and ethical. Some of these performance-enhancing drugs will have the character, as the noble Viscount so clearly pointed out, of being a lesser evil. Better to take it than just fall over where you are. As I understand it, however, some of the things under consideration are designed to give an extra edge of one kind or another to frail humans. All three dimensions are involved in those: operational considerations are best left in the hands of the military; medical considerations are best left in the hands of informed people; and, ultimately, there are ethical questions about which drugs are used and which are not. I therefore welcome the Minister’s recognition that it would be good to sharpen the definitions in this part of the Bill.
I am most grateful. It has been a useful short debate on an important and developing subject.
I am not sure that I totally follow the Minister’s lead on the question of “orders or advice” from a senior officer. I understand that in practice advice should come from the medical side. However, we are talking about an offence of unfitness or misconduct through alcohol or drugs. If a serviceman is strongly advised by a superior officer to take a drug which causes him to be unfit or to be guilty of misconduct, that should be a defence. It is irrelevant that the practice ought to be through a medical adviser. I hope the Minister will take that away and look at it again, so that we have that sorted by Report stage.
The debate on performance-enhancing drugs is the more important point. I totally take the thoughts of the noble Viscount, Lord Slim, that you can have a performance-enhancing drug that may keep you going on the ground, but which may cause you not to be able to fly as accurately as you otherwise might when in the air. It is a difficult judgment, and there is also the ethical question that has just been raised.
This is an opportunity to lay down some ground rules about the use of such drugs: who is responsible and what happens if the operational decision is made to give a performance-enhancing drug which leads to a problem, such as the American pilots had with their friendly fire incident. Does that become a defence against unfitness or misconduct through alcohol or drugs—or, indeed, other offences such as careless or dangerous flying, or whatever?
I am most grateful that the Minister has offered to look at this paragraph. I am sure we will all be content to work together to try to get something on Report. Until then, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 43 not moved.]
Clause 20 agreed to.
Clause 21 [Fighting or threatening behaviour etc]:
Page 10, line 1, after “abusive,” insert “harassing,”
The noble Lord said: I shall speak also to Amendments Nos. 45 to 48.
The purpose of these amendments is to make harassment of one member of the Armed Forces by another a specific and recognised offence. It follows from both the Deepcut report and the agreement recently made and published, with extensive supporting evidence, between the Armed Forces and the Equal Opportunities Commission.
Harassment is easier to recognise than define, and is often more evident from the point of view of the victim than that of the perpetrator. AmendmentNo. 46 therefore includes a perception dimension:
“may be thought to be”.
It also provides for the minor sentence of a service corrective order to address repetition. The whole thrust of the outcome of the EOC report is the need to stop the offence and to prevent repetition.
Amendment No. 45, to substitute “or” for “and”, makes it clear that this offence can be committed without it being likely to cause a disturbance. I beg to move.
The offence as drafted, like the offence which it replaces in the existing service discipline Acts, is designed to prevent specified types of misbehaviour when they are likely to result in a disturbance. It recognises that there is a low level at which such misbehaviour between service personnel should not automatically be an offence. The clause therefore limits the offence to where it is serious enough that a disturbance is likely. I understand the arguments that the noble Lord made as a result of what we learnt from the reports on Deepcut and so forth, but Amendments Nos. 44 to 48 would make any insult, for example, an offence, even if there was no risk of a disturbance.
They would also make any harassment an offence. Harassment is already covered by the comparatively new criminal offence of harassment under Section 2 of the Protection from Harassment Act 1997. The inclusion of harassment in this clause is therefore unnecessary. Moreover, it would create an offence which, because it could be committed by a single incident, would be inconsistent with the 1997 Act, under which harassment depends on a course of conduct.
Finally, these amendments provide that thecourt martial can impose a restraining order under Clause 228. We believe this is unnecessary as a restraining order is not a punishment and so is not precluded by the restrictions in the clause on punishments. Clause 228 would already allow the court to make such an order. Clause 22 highlights the importance of trust and respect in the relationship between commanders and those under command. The offence is about the seriousness of mistreatment by superiors of their subordinates.
Amendment No. 49 would extend the offence to ill-treatment by a person who is not the victim’s superior officer, but is pretending to be. This is clearly outside what this offence is really about, which is the abuse of authority. There are other service disciplinary or criminal offences that would be more appropriately used where the offender only pretends to be a superior.
I thank the noble Lord, Lord Garden, for his support. I am grateful that the Minister understands our arguments. From what he said, it appears that our amendments are superfluous. He said that harassment is already covered by another Act. We will need to look into this carefully, and we may come back to it on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 45 to 48 not moved.]
Clause 21 agreed to.
Clause 22 [Ill-treatment of subordinates]:
[Amendment No. 49 not moved.]
Clause 22 agreed to.
Clause 23 agreed to.
Clause 24 [Damage to or loss of public or service property]:
Page 10, line 35, leave out subsections (1) to (3) and insert-
“(1) A person subject to service law commits an offence if-
(a) he does an act that causes damage to or the loss of any public or service property or any property belonging to another person subject to service law; and (b) either- (i) he intends to cause damage to or the loss of the property, and there is no lawful excuse for his act; or (ii) he is reckless as to whether he causes damage to or the loss of the property. (2) A person subject to service law commits an offence if-
(a) negligently, he does an act that causes damage to or the loss of any public or service property; or (b) he does an act that is likely to cause damage to or the loss of any public or service property and- (i) he is reckless as to whether he causes damage to or the loss of the property; or (ii) he is negligent.”
Page 11, line 20, leave out paragraphs (a) and (b) and insert-
“(a) in the case of an offence under subsection (1), ten years; (b) in the case of an offence under subsection (2), two years.”
On Question, amendments agreed to.
Clause 24, as amended, agreed to.
Clause 25 [Misapplying or wasting public or service property]:
Page 11, line 26, after “he” insert “knowingly”
The noble Lord said: I rise to speak to Amendments Nos. 52 and 53, which are amendments to Clause 25. I assume that the Minister is very much in favour of this clause as we have seen, by virtue of the National Audit Office, that his own department is sometimes negligent in this respect.
My amendment attempts to try to ensure that this clause is not applied too rigorously. Given NAO reports over the years, that would mean that the military justice system would grind to a halt since waste appears to be endemic. It involves a more serious point about who we are we trying to catch with this approach. Let me take a concrete example. We keep discussing the eight Chinook HC3s, which must presumably fall within the category of having been authorised to be modified in such a way as to cause a waste of service property—to the tune of £150 million, or whatever it is.
Who does this clause catch? There is a chain of people, some of whom knowingly do it—presumably because they have the expertise—and some perhaps unknowingly. Or is it really aimed at very junior personal doing minor wastage on units? If so, that would be unfortunate. My amendments are probing in nature to show exactly where the buck will stop because it could be an important clause if correctly targeted. I beg to move.
Although I accept that these amendments are probing, we support their thrust. We feel that service personnel should be guilty of a Clause 25 offence only if they knowingly waste or misapply service property. If they are ordered to do so, they should not be charged under this clause. If a serviceman or servicewoman is found guilty of this offence, it will stay on their record and may seriously affect their career.
Perhaps I may illustrate a situation from my experience which shows why this amendment is necessary. A senior NCO condemned a winch on a heavy recovery vehicle. He misdiagnosed the failure of the winch, but he did not realise he had misdiagnosed it. The winch was worth £15,000 and we did not have one in stock. So, if one wanted to investigate what went wrong, one might decide to prosecute the serviceman for making a technical error. The noble Lord's amendment would stop that unnecessary and inappropriate prosecution taking place. Therefore, I support the amendment.
I am not too clear on this point. What happens if on operations—say there is an ambush or something—a vehicle convoy is going along and everyone has to take to their feet to get into the hills, but before doing so they destroy the vehicles so that the enemy cannot have them? Does that involve “knowingly” wasting? I am not sure how this firms up operationally. A lot of people destroy things on operations so that the enemy cannot have them.
I agree with noble Lords focusing on this very important area. The noble Lord, Lord Garden, raised the point on the Mark 3 Chinook helicopters. He knows very well the importance of making sure that we do not misapply or waste public money. This is a difficult area because we have to ensure that we are defining the offence in this clause, such that it takes into account a reckless or negligent misuse or waste where such negligence or misuse could have serious consequences for the unit. Therefore, we believe that it is important for us to maintain that wider definition, not to have it limited by the wording, “so knowingly to do”. The important point concerns recklessness or negligence. It is important for me to point out that an offence under the clause is not so serious as ever to justify imprisonment. That penalty is not available under the clause.
Amendment No. 53, providing that a serviceman who misapplies or wastes public or service money commits no offence if his actions were on the orders of a superior officer, is unnecessary, because if a serviceman acted on the basis of an order, he would not have the necessary intent, negligence or recklessness to commit an offence. On the question of the noble Lord, Lord Garden, of who this is intended to catch, we intend to be able to take action where someone has acted in a reckless or negligent way and, as a result, has led to the misuse or waste of public money.
The Minister seems attached to the use of the word “reckless” in the clause, rather than the word proposed by the noble Lord, Lord Garden—“knowingly”. In fact, I would prefer “reckless” to “knowingly”, but the Minister may take this away and consider inserting that word.
I support the noble and gallant Lord and the noble Lord, Lord Garden, in asking the Minister to take this away. If I may respectfully say so, the fact that the Minister refers to intent, negligence and recklessness as either being or not being essential parts of the clause—albeit that they are not written into it—indicates that a good deal of careful thought needs to be given to its drafting before we go much further. Obviously, we cannot do all that in Committee, but I urge the Minister to say that he will take it away and think about it very carefully.
It seems to me that several noble Lords have made vital points. Whether or not one agrees with the sentiments of the noble Lord, Lord Garden, clarification is needed. In the Minister's first answer, which I presume was according to his brief, the words “recklessly or negligently” appeared several times. Surely it would be better if the clause itself contained those words. The noble Viscount, Lord Slim, made a point that was excellently responded to by the noble and learned Lord, Lord Mayhew, whereby some additional phrase—we are not drafting in Committee but the Minister can consider this—such as “without lawful excuse” could be added. It seems abundantly clear that under the facts outlined by the noble Viscount, if something is destroyed to withhold it from the enemy who is advancing upon it, that is not misapplication, nor is it a waste; it is a perfectly proper act.
I am most grateful to the Minister for undertaking to look at the matter again. The debate has been useful because it has elucidated what he is trying to achieve through Clause 25. From all the contributions by noble Lords, it does not seem that the current wording will achieve that. I have no particular attachment to my first suggestion and those that we have heard from numerous noble Lords could be incorporated to make the provision much clearer than it is. I look forward to seeing it in a different form when it returns on Report. Until then, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 53 not moved.]
Clause 25 agreed to.
Clauses 26 to 30 agreed to.
Clause 31 [Hazarding of ship]:
Page 13, line 38, leave out subsections (1) and (2) and insert-
“(1) A person subject to service law commits an offence if he does an act that causes the hazarding of any of Her Majesty's ships and-
(a) he intends to cause damage to or the stranding or loss of the ship, and there is no lawful excuse for his act; or (b) he is reckless as to whether he causes damage to or the stranding or loss of the ship.”
Page 14, line 16, leave out “or (2)”
On Question, amendments agreed to.
Clause 31, as amended, agreed to.
Clause 32 agreed to.
Clause 33 [Dangerous flying etc]:
Page 14, line 36, leave out paragraph (b) and insert-
“(b) either- (i) he intends to cause loss of life or injury to any person, and there is no lawful excuse for his act; or (ii) he is reckless as to whether he causes loss of life or injury to any person. (1A) A person subject to service law commits an offence if, negligently, he does an act-
(a) when flying or using an aircraft, or (b) in relation to an aircraft or aircraft material, that causes or is likely to cause loss of life or injury to any person.”
Page 15, line 10, leave out paragraphs (a) and (b) and insert-
“(a) in the case of an offence under subsection (1), may be for life; (b) in the case of an offence under subsection (1A), must not exceed two years.”
On Question, amendments agreed to.
Clause 33, as amended, agreed to.
Clause 34 [Low flying]:
Page 15, line 25, at end insert “and authorised for the specific flight”
The noble Lord said: My amendment deals with Clause 34 on low flying, and in particular with the definition of “minimum height”, below which an offence is committed. In subsection (3), the minimum height is the height prescribed by regulations made by the Defence Council. In practice, when authorising each flight, the minimum height for the operation will be written in by the officer authorising the flight. That minimum height may well be higher than the minimum height prescribed by regulations, taking into account the conditions, the need for the operational or training requirement, the weather, and a whole range of other factors. If we are trying to have an offence that wraps up low flying, it might be worth considering ensuring—I shall be interested to hear the Minister’s thinking about this—that it embraces whatever the authorised height is, which may often be higher than the minimum height. I beg to move.
I am grateful to the noble Lord, Lord Garden, for making a point about the authorised height, because it occurs to me that from time to time on separate operations, individual flights, individual days and individual periods of flying that the regulations or the limit—if I may call it that—on height may well be altered not every day but with the full authority of those who are on the ground and know what they are doing. One might need a degree of flexibility in this, and I hope that the noble Lord’s amendment, let alone what the Minister proposes in the clause, might allow this degree of flexibility.
My mind goes back to the tragic events at the Mull of Kintyre, which will be familiar to my noble and learned friend Lord Mayhew, and to the report on those events that referred to various aspects of a particular helicopter flying at a particular height. There might well have been, and probably were, specific height restrictions for that particular operation on that particular day, but I hope that the amendment proposed by the noble Lords, Lord Garden and Lord Thomas of Gresford, and any reply given by the Minister, allows such flexibility for a particular height restriction. I am advised that there is a general height restriction of 500 feet for aircraft flying low over my home in Scotland. It might be 250 feet at certain times. I hope that there is flexibility in the noble Lord’s amendment, let alone in the Bill.
I, too, support the amendment. I just want to make it clear that the clause, as I read it, refers to peacetime flying and training flying. I am not absolutely clear whether there is any likelihood of such an offence being brought against someone who is flying not only in wartime situations but in quasi-wartime situations, whether over this country or anywhere else. Perhaps the Minister will assure me that it would not.
I recognise the concern raised by the noble Lord, Lord Garden. He is right. In addition to the low-flying restrictions in place under Defence Council regulations, further restrictions are sometimes imposed. Nevertheless, although we are mindful of the situation, we believe that this amendment is unnecessary. Specific flight restrictions through local arrangements will be imposed by specific commands or standing orders. In either case, disobedience to that command or standing order will be an offence. Therefore, there is no requirement to bring conduct of that type within this clause. On the basis of that clarification, I hope that the noble Lord will feel able to withdraw his amendment.
I am able to provide the confirmation that the noble and gallant Lord seeks. This does not relate to a combat situation as he describes.
I am of course aware that a number of orders and regulations will be locally provided. My point is beyond that. A specific height will be written into the authorisation sheet for every flight operating below normal operating heights, and it cannot go below that height. It is slightly curious that we have a clause on low flying. This will be done because the authorising officer perhaps thinks that the pilot is not yet experienced enough to go down to the minimum height or that on a particular day the weather or other conditions are not appropriate to allow him to do so. If a person disobeys the order written in the authorisation sheet, there will be the possibility of charging him or of other disciplinary action. It just seems curious that it would not be done under this provision, because we have not made it an offence to fly below the authorised height for the flight, rather than under, as the Bill currently states, the minima defined by the Defence Council, which will be different. The Minister may find it worth while to have another look to see whether there is substance in my proposal.
Page 18, line 26, at end insert-
“(1A) A person shall not be charged with an offence against this section committed in the United Kingdom if the corresponding offence under the law of England and Wales is treason, murder, manslaughter or rape.
(1B) Where the corresponding civil offence is murder or manslaughter, an offence under this section shall be deemed, for the purposes of subsection (1A), to have been committed at the place of the commission of the act or occurrence of the neglect which caused the death, irrespective of the place of the death.”
The noble Lord said: This amendment would retain the present position under the Army Act 1955 whereby a person may not be charged with an offence of treason, murder, manslaughter or rape if that offence was committed in the United Kingdom. I have followed almost exactly the wording of the existing provision and the historic provision in the Army Act.
Perhaps I may say a few words broadly. The justification for courts martial for serious offences committed abroad is entirely accepted. It is in the interests of a serviceman or a civilian who is subject to service jurisdiction that, if he is charged with serious offences abroad, he should have available to him a tribunal where the law of England and Wales is applied, the proceedings are conducted in the English language and the procedures are appropriate. I have no quarrel with the present situation, and the continuing situation under the Bill, that there should be court martial hearings abroad for serious offences. However, no proper justification appears to have been put forward for extending the jurisdiction of courts martial to the serious offences of treason, murder, manslaughter or rape when a serviceman commits those offences in the United Kingdom itself and is therefore subject to ordinary criminal procedures. He will be tried before a jury in the Crown Court, and that is something that frequently happens.
In the letter which he has helpfully sent to us on this topic, the Minister said that we have to recognise that the court martial system is compliant with the European Convention on Human Rights. Although that may be so—and I do not necessarily say that it is—it has been a long struggle to reach that position. It is a long struggle which has been carried out not by the Government but by defence advocates who on numerous occasions have taken the Government to the European Court of Human Rights to obtain judgments in their favour. Here I recognise the sterling work of Mr John Mackenzie, Mr Gilbert Blades and others who have brought these cases forward. For example, in 1997, in the case of Findlay, the European court held that the system of courts martial was not compliant because the convening officer prosecuted the case, appointed the panel which tried it, and then reviewed the conviction and sentence imposed by the panel. He could have, if he had so desired, reversed it. As a result of that judgment in 1997—when of course the Government were arguing to maintain the system as it then was—the Armed Forces Act 2001 was passed.
However, that was not the end of the story. In 2002, in Morris v the United Kingdom, the European court again held that the court martial system was not compliant on a number of grounds: first, that the junior officers who formed part of the panel were subject to reports on how they had carried out their duties; and, secondly, the court was unhappy with the reviewing authority. The court thought it inappropriate that an extrajudicial body should decide on the conviction and sentence subsequent to the original hearing. The Judicial Committee of this House actually disagreed with that decision in the case of Boyd, but the Armed Forces Act 2001 and the Naval Discipline Act 1957 (Remedial) Order 2004 altered the system. All sorts of things have been pressed not by the prosecution but by the defence, and as a consequence, by pushing and shoving, the court martial system has come closer to the sort of system that we are familiar with in the civil jurisdiction in this country. However, it certainly has not arrived there yet. This Bill is another step on the way, but there are further steps to be taken. If the Government were to accept our later amendments to the Bill, we might reach a satisfactory situation, but the Government’s present approach appears to be, as it always has been, to reject with scorn any attempt to try to amend the system.
For example, it is still the case that instead of a unanimous verdict by a jury of 12 people, or at the very least a majority verdict of not less than 10 to two, a court martial is decided by a simple majority. If five sit, three to two is enough for conviction; if seven sit, four to three is enough. Then, sentencing is by the panel itself. Officers are brought together for a court martial—and will continue to be so under the Bill—and upon them, without any training or background at all, is put the responsibility of sentencing. Of course they can take the advice of the judge advocate who sits with them but, except in the case of a tie when I think he has a casting vote, he has only one vote. That is unsatisfactory. It is also unsatisfactory that panels do not include a cross-section of service personnel. As a result of pressure from defence advocates, warrant officers were introduced to panels, which now frequently include a warrant officer; civilians were introduced to sit where civilian defendants were before a court martial, and so on.
I recall that one of the last procedures to go went as a result of a Question that I asked in this House about whether it was right that a defendant in a naval court martial should be marched in at the point of a cutlass. Between my tabling of the Question and the Minister of the day, the noble Lord, Lord Bach, replying to it, that hallowed custom—which of course the Navy loved—had suddenly disappeared. In the time I have been involved in courts martial the swords have gone and the stripping the defendant of his belt and cap, the marching and the saluting have all disappeared. Indeed, today—again as a result of pushing by the defence—the panel sits separately from the judge advocate.
His honour Judge Blackett, who is the Judge Advocate General, gave evidence to the Select Committee on this Bill in another place. His memorandum stated:
“The military system should be the equivalent of the civilian system in all respects except where the requirements of operational effectiveness make the differences impossible”.
We have an enlightened Judge Advocate General who has said that he believes the court martial system should reflect the Crown Court in all respects except where there are good operational reasons for differences. He is trying to ensure that a court martial is regarded as on an equivalent footing to a Crown Court. But we are not there. Unless the amendments that we have put down—which I believe were suggested by the Judge Advocate General in his evidence to the Select Committee on the composition of the panel, on the question of sentencing by a board which has no experience and on the question of majority verdicts—are agreed, we will not have a system for trying servicemen in this country which is the equivalent of a Crown Court.
Why, therefore, should we have this change to allow courts martial to deal with treason, murder, manslaughter and rape committed in this country? Who is to decide? Nowhere in the Bill is it set out who decides whether a serviceman should be tried by court martial for murder or for rape as opposed to sending him to the Crown Court to be tried in the ordinary way by a jury. We have a system proposed which is, in my view, unacceptable.
I notice that Major-General Howell, the head of the prosecuting authority, in his evidence to the Select Committee, justified the change for the following reason:
“I can see a situation where if you had a soldier committing murders in a lot of different countries, one of which is the UK, it may be easiest for a Court Martial to try the case because the Court Martial can move around countries and listen to witnesses locally and has that other advantage. I do think it is something that is going to be very rare, to be frank, but I can imagine the situation might exist”.
It has never happened. There has never been a serial murderer who has been murdering all round the world who has been tried by court martial. Yet that is the only justification that the head of the prosecuting service, Major-General Howell, could put forward for grasping this additional jurisdiction to the courts martial in this country.
Supposing someone were to say to a policeman, “You are part of a discipline service and there are certain things about policemen which are peculiar. Therefore, it is only right that if you are charged with murder or with committing a serious offence, you should be tried not by a jury but by a panel of senior policemen”. Can you imagine the reaction of the people of this country if such a situation arose? Let us take, for example, the de Menezes case, where that unfortunate man was shot on a Tube train, and suppose that a police officer involved in that situation were to be dealt with by a panel of policemen. What is the difference?
There are practical reasons for courts martial dealing with serious matters abroad; I have outlined those and accepted them. But there are no practical reasons, apart from the far-fetched situation imagined by Major-General Howell, for that jurisdiction to be exercised in this country.
I am sorry to have wearied your Lordships for so long on this topic, but it is of considerable importance. A principle of trial by jury—a principle that has always been accepted in relation to servicemen—is being broken for no adequate reason. We cannot allow this to go through without hearing justification and examining it. Let us have some transparency. We may then accept it but I suspect that your Lordships will ultimately reject this claim for additional jurisdiction. I beg to move.
I disagreed with quite a lot of the background to what the noble Lord, Lord Thomas of Gresford, said, but it seems most peculiar to extend the jurisdiction in the way that the Bill proposes. I shall be very interested to hear the Minister’s explanation about why it is desirable to make these changes.
This issue goes to the heart of the Bill. There are two key principles underpinning the Bill with which I hope no one in this place disagrees. The first is that our Armed Forces require a separate system of military justice. The second is that the system of justice must underpin service discipline at all times, wherever, geographically, an offence may have taken place and whether it has been in an operational or non-operational environment.
The noble Lord has described his concerns at length and I have responded in a letter to him, setting out our arguments in some detail. I will not go through those arguments in detail this afternoon in the interests of brevity. However, I stress that the fundamental principle that we are aiming to achieve in the Bill is to ensure that we have a separate system of military justice which can be recognised by our Armed Forces as fair, effective and appropriate. We believe that this aspect is important. Perhaps I can give some background to why the current service discipline Acts restrict the powers of courts martial to try certain criminal offences.
My understanding is that the reasons for these exclusions are historical and go back to the 17th and 18th centuries. Those reasons in the modern context have gone. It would be seen as strange for a member of the Armed Forces to be able to elect not to be tried by his peers within a court martial and to go through a civilian system. Nowadays, protocols exist between the civilian and service police and the prosecuting authorities. Our aim is to have the same flexible approach apply to murder or manslaughter as already applies to offences such as grievous bodily harm and the most serious sexual offences. The amendment, like the existing restriction, would cause practical difficulties.
I shall give one example of where the restriction would lead to unfairness. If a soldier were suspected of raping another soldier twice, once in the United Kingdom and once in Germany, the services could deal with the offence in Germany, but not in the United Kingdom—they would have to be tried separately. Other examples could be given, and I would be happy to provide further details to your Lordships, but this is a fundamental principle of the Bill. It ensures that the Bill provides a separate system of military justice for our Armed Forces.
The noble Lord, Lord Thomas, raised numerous ECHR judgments. Apart from the case of Findlay, which he mentioned, the essentials of the court martial process have been consistently upheld. The decision in Morris was overturned in Cooper by Strasbourg, and no legislative change followed Morris. The only change since Findlay has been the decision in Greaves against naval uniformed judge advocates.
We have carried out a careful examination of ECHR compliance and I have described it in some detail in the letters that I have sent to noble Lords.
Does the Minister accept that reporting on the conduct of junior officers at courts martial is now absolutely forbidden? Does he further accept that the Bill abolishes the reviewing authority? Those were two points in Morris where the European court said that the court-martial system was not compliant.
Your Lordships now know that, from the 16th and 17th century, exceptions for the serious offences of treason, murder, manslaughter and rape have been made, and that courts martial for those offences committed in this country have never taken place. Have your Lordships heard this afternoon any justification for changing the system? I would respectfully suggest, with the greatest deference to the Minister, that absolutely no justification has been put forward. Why do we overturn 300 or 400 years of history without any point to it? This is a matter on which I do not seek your Lordships’ opinion today, but I shall certainly come back to it on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 18, line 28, at end insert-
“( ) No civilian subject to service discipline under the age of 18 years may be prosecuted before the Court Martial for an offence under this section.”
The noble Lord said: The amendment deals with juveniles subject to appearances before courts martial. As the Committee knows, we are extremely careful and cautious in dealing with juvenile offenders, in how the case is handled in court, how it is prosecuted and decided, and what forms of punishment or treatment are involved as a result of appearance in a juvenile court. However, this Bill permits juveniles who are civilians to be brought before a court martial, when they have not themselves joined the services but happen to be under the jurisdiction of that court because, for example, their parents are service people, or for some other reason—they are serving abroad with the British forces. I respectfully say that that is contrary to our whole approach to juvenile justice.
I add, for your Lordships’ further consideration, that unlike the juvenile courts of this country, the panel that hears these cases by way of court martial has nil experience of the various ways of dealing with juveniles. Although they can be advised by the judge advocate sitting with them, they do not have to take his advice. As I have already pointed out in the previous amendment, they can decide sentencing by way of a majority.
I had the unfortunate experience of representing a young man of 17 who was charged with murder. He was dealt with by court martial in Germany, notwithstanding that he awaited his trial in prison in this country and was taken back to Germany, where his father had left the services, to be tried under a court martial. The matter went to the Appellate Committee of this House, which upheld the conviction, but it has lived with me—we should not be dealing with youngsters in that way.
That is the motivation behind Amendment No. 60. Grouped with it is the objection to the whole concept of the court martial dealing with civilian offences. This broad subject has been addressed on many occasions, not least before the Appellate Committee. We have given and continue to give courts martial the right to deal with civilian offences; that is to say, they are dealing not with disciplinary matters but with people who have committed ordinary crimes on the statute book. I know that I will not persuade your Lordships that this system, which has operated for a long time, should be changed, but what I am saying is perhaps one step further along the road to confining military courts martial to what they should be confined to: disciplining the service men under their control. They should not deal with civilians, particularly not with youthful civilians and civil offences.
I put my focus on Amendment No. 60, because the Bill does not give proper consideration to how juveniles subject to service discipline should be dealt with. The Bill sets up service civilian courts, and the rules proposed and promoted for those courts should encompass the sort of things that we have in a juvenile court in this country. There must be enough people of sufficient experience to sit on the equivalent of a juvenile panel. I would like to see under-18s dealt with by that service civil court sitting as the equivalent of a juvenile panel in this country. That panel should have experience of the way in which we deal with juveniles. I beg to move.
Since the 18th century our law has given courts martial jurisdiction over civilian dependants and employees but, until the Army Act 1955, this applied only if our troops were on active service. Military law was extended in 1955 to cover civilians in peace time accompanying soldiers in other countries, to bring it into line with what was supposed to be the position in the United States. But in 1960 the United States Supreme Court ruled that it was unconstitutional for United States civilian employees and dependants to be subject to courts martial in peace time. One of the reasons given by the Supreme Court in 1960 was that court martial procedure does not allow for trial by jury.
I have immediate sympathy for AmendmentNo. 60, proposed by the noble Lord, Lord Thomas, which concerns under-18s being exempt from the jurisdiction of a court martial. He has referred to the case in which he appeared as defence counsel. I am not sure that he gave the name of that case, R v Martin in 1997, in which a 17 year-old, the son of a British corporal serving in Germany, was tried by court martial for murder in Germany. As the noble Lord said, that case came before the Appellate Committee of this House. It is worth pointing out that the noble and learned Lord, Lord Slynn of Hadley, who is not present, expressed concern at depriving the young man of trial by jury, although he accepted that there would have been “great difficulty” in having the evidence of some—at any rate, the German witnesses—brought before a civilian court in England.
It so happens that in 1966, in another case, the wife of a British soldier stationed in Germany was tried by court martial for the murder of her husband and sentenced to life imprisonment—later it was reduced twice to five years’ imprisonment. The defendant was just over 18 years old. The concerns expressed by the noble and learned Lord, Lord Slynn, in R v Martin were as relevant in the case of Mrs Clark as they were in that of the under 18-year-old, particularly the absence of a trial by jury and allowing a simple majority verdict, which is all that is necessary to establish guilt in a court martial.
When the United States condemned on constitutional grounds the court martial trial of civilians in peace time, Justice Black in Washington said that when a Government reach out to punish a citizen abroad,
“the shield which the Bill of Rights and other parts of the constitution provide to protect his life and liberty should not be stripped away because he happens to be in another land. This is not a novel concept. To the contrary it is as old as government. It was recognised long before Paul invoked the right as a Roman citizen to be tried in strict accordance with Roman law”.
It is evident that I support the amendment proposed by the noble Lord, Lord Thomas, but I would really like it to go further. Like the noble Lord, I question the clauses that immediately follow in this debate. I question the jurisdiction of courts martial over all civilians, whether under or over 18, except when accompanying troops in wartime on active service. Of course I accept that when troops and accompanying civilians are based in peacetime in another country they are prima facie subject to the jurisdiction of the local courts of the country in which they are serving or living. The foreign country may be willing, under an agreement with this country, to give up some of its sovereign rights and, as in the NATO status of forces agreement, grant some measure of jurisdiction to the military authorities of the sending state. In principle, the foreign country should equally be willing to grant jurisdiction to the sending state’s civil authorities, sitting as appropriate in the state where witnesses may be more easily and readily available. In such a situation, a civilian court could be adjusted in its composition on the lines that the noble Lord has suggested, so that if the defendant is under 18 it would have an appropriate panel, as with juvenile courts in this country. I support the noble Lord.
The case made by the noble Lord, Lord Thomas of Gresford, as reinforced just now by the noble Lord, Lord Borrie, is enormously powerful. I look at this primarily from the point of view of sharing what the Minister has just said about the importance of providing and maintaining a comprehensive military justice system. That is important, but it is equally important not to overload that system or unnecessarily to present it with difficulties that can be avoided.
Parliament has recognised the need for special safeguards when conducting trials of juveniles. It would be unnecessarily difficult for a court martial to apply those safeguards. The matter could be dealt with much more simply if the amendment, or words to its effect, were to be carried in due course. I recognise that the noble Lord, Lord Borrie, said that the precedents for all this go back to the 18th century, but there were not too many safeguards in our domestic law in the18th century for the trial of children under the age of 18. I very much look forward to the Minister’s reply, which I hope will be favourable.
I support the noble Lords who have spoken on this matter. I hope that the Minister will at least say that he will think very carefully and reflect on what has been said both about this matter and about the previous amendment. I hope that I can say that without being out of order. We are dealing with matters that are deeper than perhaps at first we realised. It may be that we should be debating this whole clause and that it needs more careful thought than it perhaps has yet had an opportunity of receiving. I say this with some modesty, because I am afraid that I was not able to be here when the matter was debated in July, as I was in hospital. I did not receive the Minister’s letter, but I am trying hard to catch up. There are very serious issues here.
In the 1950s, it may have been impractical to send all the players to a Crown Court trial in the United Kingdom from, say, Hong Kong, but in this day and age it is relatively easy to go to a different country. I strongly support AmendmentNo. 60, but I am not so happy about the amendments to Clause 42 and onwards.
The Minister was referring to a military law separate and distinct from the civil system. That was spoken to by noble and gallant Lords at Second Reading and lies, as the noble Lord has said, behind the basis of much of this Bill. I shall say no more now, because I shall refer to the matter when we consider Amendment No. 61, but I do not imagine that at Second Reading noble and gallant Lords had for one moment the position of juveniles in their minds.
Regarding Amendment No. 60, I need do no more than respectfully adopt the interventions made by my noble and learned friends Lord Mayhew of Twysden and Lord Lyell of Markyate.
I was struck by the uncharacteristically sheepish way—I use an appropriate Welsh image—in which the noble Lord, Lord Thomas of Gresford, spoke in opposing Clauses 42 to 49 standing part of the Bill. I am not sure why he did that. Was it because we had already heard from him at some length on the previous amendment and modesty overcame him? Or was it because he was not sure of his ground? I would like to think that it was the latter, because expunging those clauses from the Bill would tear the heart out of our traditional approach to the relationship between civilian and military law. If Clauses 42 to 49 were removed, you would be left with a statutory disciplinary system for the forces. That would fly in the face of the fundamental constitutional principle that has always lain at the heart of our approach to the Armed Forces—that a soldier, sailor or airman in the services is a civilian who is undertaking such tasks. He is a citizen in arms, if you like. If we stray from that, we unravel the approach that we have traditionally taken to these matters.
I wonder how this amendment might apply. Perhaps a way of testing the attempt to remove Clauses 42 to 49 is to look at what would happen when our servicemen are abroad. That was touched on by the noble Lord, Lord Borrie. What happens in relation to the commission of criminal offences when servicemen are abroad? Currently, the civilian courts have extra-territorial jurisdiction only for a few serious offences. If you remove criminal conduct from the scope of the military justice system, there would be no means of prosecuting a soldier for an offence committed abroad that fell outside that limited extra-territorial jurisdiction. The only alternative, as the noble Lord, Lord Borrie, stated, would be to subject the soldier to a foreign local jurisdiction. In some cases, that would be impossible; in other cases, it would be highly undesirable, especially now, given the jurisdiction of the International Criminal Court. With great respect to the noble Lord, Lord Thomas, I suggest that removing the clauses would be wholly counterproductive. On this matter, the Government can rely on support from the Opposition.
I have listened carefully to the points made on the Floor of this House and my comments on Amendments Nos. 62 and 63 will be brief, in the interests of making progress. I was taken by a number of the points made by the noble Lord, Lord Thomas, in respect of juveniles, and those points were emphasised by the noble Lord, Lord Borrie. I shall go away and reflect on these matters, in so far as they apply to juveniles, and come back to the noble Lord.
I believe that I have to be more robust on Amendment No. 63 because, as we have heard, it goes to the heart of the Bill. I have already spoken to the two key principles that we believe underpin what we are trying to achieve in this very important Bill for our Armed Forces in having a separate and comprehensive system of military justice. As I understand it, this amendment seeks to permit service personnel and civilians who are subject to service discipline to elect trial before civilian courts in the United Kingdom where those civilian courts have extra-territorial jurisdiction. I believe that that would significantly undermine those key principles; it would rip the heart out of the Bill and have a significantly detrimental effect on its standing. I therefore ask the noble Lord not to press that amendment.
I should also like to make a point relating to personnel, whether they are civilians acting in arms, as the noble Lord opposite has just said, or whether they are taking part in operational or non-operational activities. In our modern environment, the types of operations that our forces undergo change very rapidly in a short space of time and can therefore be hard to define as active service in a warlike situation. We are seeing so-called “three-block” operations, where the situation can change extremely rapidly. Therefore, we do not believe that it would be helpful to make this distinction, as it would be impractical in defining active service or operational or non-operational theatre. I would have real difficulty with such a distinction.
I am most grateful to noble Lords who have spoken in support of Amendment No. 60—in particular, the noble Lord, Lord Borrie, the noble and learned Lords, Lord Lyell and Lord Mayhew, and the noble Earl, Lord Attlee. I also include the noble Lord, Lord Kingsland. If I was perhaps sheepish on my side, he was not exactly bullish about supporting Amendment No. 60, but I think that he does. Indeed, he says that he completely supports it. I am grateful that the Minister is going to think about the problem in relation to civilian juveniles who have not signed up to the Army, the Navy or whatever but find themselves subject to courts martial.
As to the objection to dealing with civil offences, the noble Lord, Lord Kingsland, is right. In my view, until the court martial system is completely consonant with the Crown Court—an aim announced by the Judge Advocate General, Judge Blackett—it is wrong that a serviceman should face a different tribunal for an offence committed in this country. I refer not to the more serious offences but to the ordinary, run-of-the-mill ones. It is wrong that he should face a completely different tribunal with procedures that are not as acceptable as those faced by the ordinary member of the public, who will be before the magistrates’ court or the Crown Court for the same offence committed in this country.
The noble Lord, Lord Kingsland, was right to point out the difficulties that apply to offences committed abroad. I agree with him that it is necessary to have a service disciplinary system that deals with criminal acts abroad. But it is a different matter when one asks whether it is right in this country to have a competing jurisdiction for a person just because he has signed up to the services and whether it is right that he should be at greater peril if he is charged with offences under one system than he would be under the other.
I am grateful for the support in relation to juveniles, and I shall pursue that matter. My opposition to the wider picture is, as I said, part of a long-running campaign, which I cannot pursue further at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 agreed to.
Clauses 43 to 49 agreed to.
moved Amendment No. 61:
After Clause 49, insert the following new clause-
“RULES OF ENGAGEMENT
(1) Where Her Majesty's forces are to be engaged in an operation the Secretary of State shall draw up a document to be known as the Rules of Engagement (“the Rules”).
(2) The Secretary of State shall cause appropriate extracts from the Rules dealing with particular aspects of the Rules to be made and set out on cards (“Cards”).
(3) When approved by the Defence Council the Rules and any Cards shall have the force of law under this Act.
(4) The Rules and the Cards may be revised by the Defence Council at any time in the course of the operation.
(5) A copy of the Rules shall be distributed to the commanding officer of every unit engaged in the operation and to the service prosecuting authorities.
(6) Cards shall be distributed as appropriate by commanding officers to all members of Her Majesty's forces engaged in the operation and to any attached civilians.
(7) It shall be an absolute defence to any charge alleging misconduct to show that the conduct concerned fell within the Rules.
(8) The Secretary of State may direct that the Rules be classified to the degree that he considers necessary for the conduct of operations and shall be exempt from disclosure accordingly.
(9) Cards shall not be classified and copies of them shall be placed in the libraries of each House of Parliament.
The noble Lord said: What matters in this amendment is not the detail but the principle that lies behind it. In that sense it is a probing amendment. But it is an amendment of great importance, which was heralded during the Second Reading speeches from these Benches.
The principle is that the rules of engagement should become an absolute statutory defence for a soldier on operations. It must follow, therefore, that the rules of engagement define the criminal law within which the soldier operates. We believe that the rules of engagement should take statutory form. Soldiers have to know where they stand when they are on operations. They are told that if they comply with the rules of engagement they are within the law. Why are the Government prepared to say that informally but not admit it publicly in the Bill? That is the question that the Minister has to answer. He will have some difficulty in doing that if his answer is not co-ordinate with the view that we take.
Article 7 of the Human Rights Act requires that the criminal law should be composed of rules that have predictable outcomes. It requires that a subject—whether a soldier or a civilian—before undertaking a certain activity should know whether that activity falls within or outside the criminal law. Precisely the same principle should apply to a soldier on operations.
I entirely accept that the details of the amendment might reasonably be criticised. We have taken a view about the right approach. We would welcome other views on how it should be applied; but we are convinced that the Government have to face up to this and include in the Bill an appropriate statutory defence. I beg to move.
My Amendment No. 62 would add to the rules of engagement amendment, if they were to be put on a statutory basis. It is a question of what happens when servicemen find themselves operating under the rules of engagement of another nation. Members of the Committee may not be aware that this is happening as we speak.
On 19 June, I received an Answer to a Written Question about the arrangements for Royal Air Force personnel embedded with US personnel on Predator drones perhaps thousands of miles away from the operations, but who can release weapons and are subject to somebody's rules of engagement. The Minister very helpfully told me:
“UK embedded personnel act within US rules of engagement, may use US collateral damage methodology and work to US delegated authorities”.—[Official Report, 19/06/06; col. WA 54.]
So on certain occasions, people who are subject to our service law are subject to another nation's rules of engagement. That perhaps gives us an extra dimension of the problem of how we put rules of engagement on a statutory basis.
Turning to the broader aspect of rules of engagement, I should be interested to hear the Minister's reaction. I am not sure whether it is a good idea. My first reaction was that when they are put on a statutory basis, there will perhaps be a tendency for them to be less flexible, which may make life more difficult. I am also slightly concerned that subsection (7) of the new clause makes observance of the rules of engagement an absolute defence. Of course, you are still required to be proportionate in your response at any stage of warfare. It may be that you can operate under quite robust rules of engagement, but the particular circumstances do not mean that you need to go to their outer edges; you could do something less damaging. We still need to be able to look at the proportionality argument.
If we were to put rules of engagement on a statutory basis, we must consider how we handle being under those of other nations. I have yet to be convinced that this is the place to put them, however, and will wait to hear what the Minister has to say. I beg to move.
My name is on Amendment No. 61, and I am grateful to my noble friend Lord Kingsland for his exposition of the importance of the principle at stake.
I support the spirit of all these amendments. Why? Amendment No. 61—exclusively relating to written rules of engagement, albeit established by a somewhat Byzantine, insufficiently flexible process—could have served as a defence for Clegg, Scots Guardsmen Fisher and Wright and other cases. It must therefore be dealt with, and related and extended to AmendmentNo. 62A to include compliance with orders. It is not readily possible to distinguish between orders and rules of engagement, especially if they are given verbally in the field. Reverting to the principle expounded so well by my noble friend Lord Kingsland, a serviceman must know where he stands.
The toil of drafting such an amendment could well be in vain, however. Such an amendment should never pre-empt what has been referred to as the new services law, separate and distinct from the civil system. That law on armed combat and peacekeeping recognises realities and, as the noble and gallant Lord, Lord Inge, put it, can be trusted by the servicemen. It would serve as a substantive defence on the basis on which the Army Board rejected the application of DALS for the discharge of the Scots Guardsmen.
Here I have to declare an interest because I represented them before the Army Board on two occasions and prepared their defence, and called their evidence and that of their commanding officer, who is now General Sir John Kiszely. On the second occasion, General Sir Mike Jackson sat on the board and questioned in depth the three men who gave evidence: the two Scots Guardsmen and the general. The board came to the conclusion that the two guardsmen could not be discharged from the Army because the morning orders of the day for the guardsmen were to stop and search, their rules of engagement were, “Halt or I’ll fire” and they were ignored twice. They only had before them a defence of self-defence, which was rejected by the judge, but there was no rejection of what was accepted by the Army Board and General Sir Mike Jackson, which was that they complied with their orders and rules of engagement. The transcript of those proceedings is lying around in the MoD somewhere and forms strong confirmation for the type of amendment on the broader scale that would subsume the amendment that could be produced out of Amendments Nos. 61, 62 and 62A.
As the noble Lord, Lord Drayson, said, the concept of a military law separate and distinct from the civilian system was spoken to on Second Reading by the noble and gallant Lords, Lord Bramall, Lord Guthrie, Lord Vincent of Coleshill, Lord Inge, Lord Boyce, the noble Lord, Lord Ramsbotham, my noble and learned friend Lord Mayhew of Twysden and other noble Lords. It was heralded by the Judge Advocate General Judge Blackett—I am glad that my noble friend Lord Thomas of Gresford referred to him—in the evidence that he gave to the Select Committee in the other place. It was quoted by the noble Lord, Lord Ramsbotham, on Second Reading and was expressly accepted by the noble and gallant Lord, Lord Boyce. The noble Lord, Lord Truscott, who is an eminent historian, not a lawyer or a soldier, said:
“If mistakes are made in the name of self-defence or in the heat of battle, the law and the courts should show understanding”.—[Official Report, 16/2/06; col. 1276.]
The noble and gallant Lord, Lord Bramall, said:
“Justice cannot be dispensed in a vacuum; it must depend on the circumstances prevailing at the time at the scene of operations and on the rules of engagement, if established”.—[Official Report, 14/06/06; col. 242.]
That remark was expressly approved by my noble and learned friend Lord Mayhew of Twysden, who is in his place. There is a matrix for an amendment which I hope may be tabled on Report that would subsume the three amendments to which we have been speaking.
On Amendment No. 61 I understand the concerns expressed by the noble Lord, Lord Garden, that rules of engagement becoming part of the Bill itself could complicate them unnecessarily and make them, in practical terms, less useful. That issue surely needs to be addressed. However, on the need to incorporate that amendment into the Bill, in principle I think that there is a case for it. The reason is that historically—certainly going back to when I started my military service and in the Second World War before that—the Geneva conventions and other international agreements sought to establish the rules of warfare.
We have moved on vastly. You have only to look at Iraq and Afghanistan where our adversaries, or our potential adversaries—however you define them these days—do not see themselves subjected to any human rights or to any international law whatever. That is therefore a very important reason why our forces should have clear direction on the rules of engagement that should apply. Those should be on a legally sound footing so that if their interpretation of them is challenged in any way, there is something to base their judgment on.
Additionally, after today, after the conflict phase of an operation, such as in Iraq, the situation is even more complicated. Very junior ranks indeed on the back streets of Basra will have to make up their minds in seconds about whether what action they take is legal. Therefore, I think that in principle Amendment No. 61 is important and should be given careful consideration, but taking account of the point made by the noble Lord, Lord Garden.
There is no doubt that there is a problem with rules of engagement, but I have some difficulties with Amendment No. 61. First, the details on the existing rules of engagement card do not seem to me to change from operation to operation. I can quote the exact words. They are engraved in my brain. In every operation the rules of engagement are the same. Secondly, subsection (8) says that the Secretary of State may classify the rules, but subsection (9) says that the cards should not be classified.
Thirdly, and perhaps most importantly, the actual rules of engagement for an operation, which are issued by PDHQ, are contained in a massive and detailed document. It is not a little card, like my cue cards; it is a big document, and it is surprisingly precise. It might say that you can attack electricity pylons but not an electricity substation. The details would have to be classified because if the enemy knew what was in the detailed rules of engagement they would not need to defend that particular infrastructure and therefore could concentrate their defensive efforts on infrastructure that could be attacked.
However, I have some sympathy with Amendment No. 62A. I was very surprised at what the noble Lord, Lord Garden, said about foreign rules of engagement and the Answer to his Written Question. I will certainly be talking to him later about that.
I preface my brief intervention by saying how much I and, I suspect, many of my colleagues have appreciated the care with which the noble Lord, Lord Drayson, has kept us in touch with the process of this Bill and has made certain that we were briefed during the various movements on it. It is highly appreciated and we are very grateful.
I support what the noble Lord, Lord Kingsland, said. As the nature of operations changes into what General Sir Rupert Smith described in his book as “a war amongst the people”, it is ever more important that every member of our Armed Forces committed to such conflicts is absolutely crystal clear on what are the rules of engagement before they are committed to those operations. That means that those rules of engagement must have been considered and worked out in advance by the Secretary of State and the chain of command downwards to include every individual. I suspect that some of the problems in Iraq have arisen because those rules of engagement were not absolutely crystal clear in the minds of everyone concerned. Therefore, it makes sense that the requirement to do that should be in statute so that it cannot be fudged before people are launched.
I also support the intent behind AmendmentNo. 62 because one type of operation on which we are embarked—United Nations operations—is one in which there is the most complicated preparation of rules of engagement, which will differ in each operation and will apply to contingents from a large number of different forces. Therefore, it is essential, where we are involved with forces from other nations, that those compromises are reached—again, before we go on operations. It is essential, although this is not in the nature of the Bill but in the reform of the United Nations, that we set up machinery to make certain that the rules of engagement of all those committed to United Nations operations are sorted out in the same way as they should be for national operations. That remains paramount.
I support Amendment No. 62A, tabled by the noble Lord, Lord Campbell of Alloway, because it seems to me to be part of the glue that ties the three amendments together. I therefore support the idea that the three should be taken and considered in great detail before it is decided whether to include them.
I follow the noble Lord, Lord Ramsbotham, in his expression that the rules of engagement should be crystal clear. The noble and gallant Lord, Lord Vincent, also called for clear direction. My experience relates to the paratrooper trial that took place in Colchester last September—a year ago. One problem that emerged in that case was that no one knew what were the precise rules of engagement. The issue did not arise for several weeks; in preparing the case, the prosecution had not set out what were the rules of engagement.
The defendants were of the view that they were operating at the time—which was after President Bush had declared victory and soft caps were being worn by the British military—on Northern Ireland rules. It subsequently emerged that the rules of engagement had not changed and that at the time, they were still operating on the rules of engagement for the invasion of Iraq, which were far more drastic in neutralising the enemy than anything that happened in Northern Ireland.
There was no communication to the soldiers, who were simply on patrol in the Maysan province, as to what they could and could not do—at least, no direct indication to them. I think that they were operating on the basis that an officer had said to them, “Okay, boys, now it's Northern Ireland rules; we can all relax a bit”. That is about as far as it got. There was no crystal clear direction as to what they should do.
Of course, the rules of engagement change. The FRAGOS—a phrase that will be familiar to those with a military background—seem to bring in various additional rules for operations as they progress. The rules of engagement may shift from time to time, but it is very important, if there is a change, that the people charged with the responsibility—the people who will end up at a court martial—are aware of the significance of the rules and of the parameters within which they can act. I fully support the amendment.
I, too, rise to support what my noble friend Lord Kingsland said, including the fact that this is to some extent a probing amendment. This is a very difficult subject. I remember being involved in the development of the rules of engagement when we were involved in Yugoslavia. This included cards—I seem to remember that they were, perhaps appropriately, yellow in those days—and getting the exact wording right. The card is what is handed to the soldier, who is likely to find himself in the law court, but behind it lie much more complex rules of engagement, to which the noble Earl, Lord Attlee, rightly referred. It would greatly assist our future debates on this matter if the Minister would either put at least some of the rules of engagement into the Library or write to us with copies of them, for use with appropriate discretion if necessary. I hope that it is not necessary—I hope that he can put them into the Library—but if he cannot, surely we can at least be provided with them in sufficient detail so that we can all apply our minds to the very difficult questions that can arise.
It is essential that each serviceman should be provided with the guidance and protection that he needs. It should be remembered that the rules of engagement on the card with which he is provided will almost inevitably require him to judge whether his life is in danger and possibly to justify that at some point. It may be necessary and right that he should do so. I can see difficulties in putting the requirements on to the statute book, but it is well worth trying to do so. At the heart of the Bill is a system of military law that applies to all the services and which provides them with a proper framework of law and a proper court framework, which is largely the court-martial framework, but which does not divorce them from their position as civilians—or at least as citizens—and that is part of the normal framework of the law so far as possible. The rules of engagement are a very important part of this, and we have a good deal more exploring to do, but I commend the amendment as a good start.
Before I had given a lot of thought to this topic, I did not think that the rules of engagement should be in the Bill. Further thought on my part and the debate so far have strongly reinforced my second view that there is a place for covering rules of engagement in the Bill. Some excellent points have been made by noble Lords and noble and gallant Lords, so I do not intend to repeat them.
It is, however, important to highlight the fact that the amendment would make it absolutely clear that the rules of engagement have been endorsed by Government and the Secretary of State, and that the military are operating those rules of engagement, having been given the direction and guidance of Ministers. Without that, there is a possible danger that, in the post-hostilities phase, questions will be asked about whether the military have been following the guidance and the direction that they had been given. I therefore strongly endorse the amendment because it brings to the fore the fact that it is a ministerial and political initiation, which gives the guidance and direction to the servicemen who will be carrying out the operation.
I, too, support the inclusion of the rules of engagement. Perhaps I may sound one word of caution: the Bill refers to the Defence Council agreeing those rules of engagement. In my six years of experience in London, I think that the Defence Council met twice. If this is to be in the Bill, there must be a system that allows the rules of engagement to be amended quickly if the hostilities on the ground change one way or the other.
I, too, support the amendment. It seems that it is the luckless soldier who gets court martialled if things go wrong, and there may be times when he is to blame. However, by ducking the issue and not having something on it in the Bill, the Government are wriggling and not taking responsibility.
As I think noble and gallant Lords have mentioned, responsibility should be driven right up the chain of command. That is so important. It may be unpopular, but perhaps a senior officer or a Minister will have to explain himself in a court case, which would be no bad thing.
The noble Lord, Lord Campbell of Alloway, made some startling points. We were together on the business in Ulster when we rehearsed it and explained it in your Lordships’ House. Out of that came one thing that I would say to the Minister: I understood that about 140 to 150 shots were fired in that instance—which is quite separate from other instances—and it was night time. Only one person was hit. I call that extremely bad shooting and marksmanship. I would have had that group out very early the next morning for some good battle firing training. From that, when the noble Lord gives your Lordships’ House figures on casualties in Afghanistan, I hope that the figures of the Taliban dead are pretty accurate. Have the bodies been counted or are we still shooting an awful lot of ammunition?
I will write separately to the noble Viscount on his question relating to the situation in Afghanistan.
I have listened carefully to the points made today, which reflect the central importance of this issue. I will respond in considerable detail because they are so important. However, before I do so, I should like to make two points that go to the heart of the issues that we are debating. The noble Lord, Lord Kingsland, said that he understood that soldiers who act in accordance with the rules of engagement would therefore be in compliance with the law. It is important to say that that is not the case. Soldiers are told that the rules of engagement mean that the operations that they are undertaking are consistent with the law, but it is still up to individual soldiers how they carry out their role in these operations. That reflects the fact that the rules of engagement are an operational framework, which I will come back to in some detail in a moment. They are not a legal document.
In response to one of the important points made by the noble Lord, Lord Campbell, about the situation where a soldier makes a mistake, it is important for me to reassure the Committee that if a soldier acts in combat on his view of the situation, even if it is wrong, he will not be guilty of a crime. That is a fundamental principle, which we need to keep clearly in focus as we consider this matter. These are difficult issues. A noble Lord described the rules of engagement as a Byzantine process. I understand why there is a feeling that that is the case, which is why I have taken considerable trouble to give Members of the Committee an opportunity to understand that process. We had a briefing earlier in the summer about the rules of engagement.
Fundamentally, from listening to the argument across the Committee, I believe that there has been, and still is in some quarters, a misunderstanding of the functions of rules of engagement in the modern situation. The rules of engagement give a framework for the conduct of an operation, which will be consistent with the law. They are often extremely complex and are always confidential. For them not to be confidential would put information into the public domain; that information would then be available to the enemy, which would be very prejudicial to the interests of our Armed Forces. We need to recognise that these rules of engagement are drafted by our Armed Forces personnel for operational purposes. They are not drafted as statements of the law. It is vital that they should not be. To draft them in such a way would make them much less effective in operational circumstances. It is important that we keep that very much in the forefront of our thinking. Rules of engagement are not drafted like law.
I apologise for intervening, but we are coming to a crucial point. Does the noble Lord accept that, at times in action, it is virtually impossible to distinguish between rules of engagement and orders, and that you have to rely on a presumption of compliance, throwing the burden on the Crown to disprove and to show that there was intent not to comply? In other words, both have to be carried together. They cannot be separated.
The noble Lord, Lord Campbell, raises an important point when describing the similarity between orders and the detailed nature of rules of engagement. He has also emphasised the point to which I alluded at the beginning of my response, which is the importance of the intent to do wrong. The noble Lord is right. We have heard on the Floor of this House as we have debated this issue in the past how in combat this may be a split-second decision made in very difficult circumstances. I remember vividly the description that the noble Viscount made to me earlier this year of a soldier going into a dark room, seeing a person and having to make a split-second decision that could cost him his life if he got it wrong. We understand those concerns. None the less, the issue is whether the person acted in combat on his view of the situation as I have described it and what his intent was in that situation. It is important to recognise that if he acts on his view, even if he gets it wrong, he has not committed a crime. Therefore, trying to use the rules of engagement framework, which is designed to enable our commanders to carry out an operation that may be extremely complex, as a document for protection under the rule of law—and so to combine those two things—would act in a way that was prejudicial to operational effectiveness.
It is important for us also to bear in mind the fact that in some cases we need to leave important decisions relating to these matters to the operational commanders in the field. I know that the commanders welcome this responsibility. The concern has been raised about whether our soldiers are clear about the rules of engagement. This is a matter that both personally and as a Minister I have asked soldiers about when visiting them on operations, and I believe that they are clear. One might say, “The soldiers would say that to a Minister”, but when one reads some of the reports of operational commanders coming back from theatre and their responses to whether they are clear about the rules of engagement, I believe that they are clear and I do not believe that we have a fundamental difficulty in this area.
If the rules of engagement were to have the force of law and provide an absolute defence, as is being suggested, they would have to take away what I have described as vital operational discretion. They would have to attempt to set out exactly how each commander and each soldier should respond to every situation. As the noble Earl said, losing that confidentiality would be prejudicial. It is also true to say that we would lose the ability to respond to the situation on the ground. The noble Lord, Lord Ramsbotham, made the point about the fluidity of situations and how they may change. That is absolutely true. We have heard also the noble and gallant Lord, Lord Inge, talk of the frequency with which the Defence Council meets. We must recognise that we need a process that enables the framework of the rules of engagement for a mission to be modified and adapted by commanders as they see fit in the terms as they find them when on operations. If we had to wait for revised rules of engagement so as to make them compliant from a legal point of view, that would of course delay the process.
We must also recognise that the rules of engagement for a particular operation are supplemented by detailed guidance and are adapted for commanders as well as for soldiers, sailors and airmen according to their missions. We heard the noble Earl, Lord Attlee, describe the cards and we discussed them at the briefing meeting; they used to be yellow, as the noble Earl pointed out. We believe that commanders at every level well understand their responsibilities to ensure that those under their command receive appropriate guidance and training and understand the nature of their task. Commanders also understand when the cards, briefings, training and orders are the best way to achieve that. The cards are issued as guidance. A good example of this was the aide-mémoire issued to personnel deployed to Iraq during the Operation TELIC war fighting phase, which concerned duties towards prisoners of war and civilians under the law of armed conflict. I do not believe that rules of engagement drafted as the amendment proposes would make the individual any safer from prosecution. Rules of engagement can never flout the law. If compliance with them gave an absolute defence, the police, prosecutors and courts would have to analyse and dissect them to establish whether the individual service man or woman was guilty of an offence.
In conclusion, I genuinely believe that this amendment would be disastrous. It would tie the hands of our commanders and all our service people; it would not simplify the law and it would not simplify the sort of decisions that servicemen will always have to take in the difficult circumstances and situations that I have described. It would introduce legal encirclement where it does not exist now.
From what he has said, I do not think that the Minister intends to address my Amendment No. 62. However, I would be interested in his views on how this works when another nation is providing the rules of engagement and how we in the United Kingdom keep control over those rules.
I will deal with Amendment No. 62 because it is important. The noble Lord is absolutely right: we have situations where rules of engagement are provided for our service personnel operating, using the example that he gave, with the Predator. The amendment seeks to increase scrutiny of the rules of engagement of other countries where our forces act under them. These are unusual circumstances, but they do arise. UK personnel are permitted by the UK Government to participate in operations while embedded in the forces of another state. In that case, they may operate under the rules of engagement of that state’s forces.
Where UK personnel are acting under the rules of engagement of another state, we ensure that the legal basis for those rules and for the proposed targets is consistent with ours. Embedded UK personnel will be provided with UK guidance to ensure that they stay within the relevant UK domestic and international law, but the proposed amendment would require the UK to insist that other states turn their rules of engagement from an operational document into a comprehensive legal document—a point that I discussed when speaking to the previous amendment. As I have explained, the other state would no doubt object to that process for the reasons that I have already given. We know of no state in which the rules of engagement have the force of law as described, so providing an absolute defence against any charge. In short, for the reasons that I have outlined, I ask noble Lords not to press Amendments Nos. 61 and 62.
Amendment No. 62A would provide that conduct does not amount to a service offence in three different circumstances: when the person was acting in the execution of the law; when his conduct was obedient to a lawful order; and when his conduct was obedient to an unlawful order that he did not know was unlawful and could not reasonably have been expected to know that. I touched on some of these issues at the beginning of my remarks in order to make the central point. I recognise that the new clause again reflects a genuine concern—in the Ministry of Defence we appreciate absolutely the genuine concerns over this issue; it is one that we think about and take a lot of trouble with—that a soldier might be found guilty of a crime where there was no real fault on his part. Although these concerns are justified, we believe that, in the context of the overriding responsibility that a soldier has to act, where he has acted,
“in execution of the law”,
subsection (a) provides a defence. I am not clear whether the clause seeks to excuse a person who acts with a lawful excuse or one who acts because he is engaged in some form of law enforcement. I think that it must mean the second of these, because if a person has a lawful excuse for his action, he is not guilty of a crime. Assuming that it refers to conduct carried out during law enforcement, I recognise that such tasks are sometimes dangerous and require quick thinking under pressure, as is the case on force operations. But in such cases, again, a person cannot be above the law. The law decides in such circumstances whether a person’s conduct was lawful on the basis of how that person viewed the situation. So even if a person misread the situation, the law would not condemn someone who had responded reasonably to circumstances as they saw them.
An order will not be lawful if it requires a serviceman to commit an offence, so I do not really understand the second case. If an order does not require him to do anything illegal, but the serviceman decides to carry out the lawful order in an unlawful way, then it is right that he should be guilty of an offence. Thus, where a soldier is given a lawful order to capture a town, for example, it does not mean that he can do anything to capture it, such as killing prisoners or civilians.
The third case covered by the new clause arises where a person is ordered to do something that is in fact unlawful but he does not know it and could not reasonably be expected to know it. I cannot think of any circumstances where a person charged with a serious offence on these facts would not have a defence. Serious crimes, including war crimes, require actual knowledge of the facts that make the act unlawful.
I believe that this amendment would put our forces in a worse position than the law requires. For a war crime—and the same is true under international law—guilt depends upon actual knowledge. The amendment suggests that a person should be guilty if he might reasonably be expected to know the facts.
Service personnel do not and should not operate within a legal vacuum, here or anywhere else in the world. Indeed, it is a hallmark of the respect in which our Armed Forces are held around the world that they operate within the law. But the law that governs their conduct and the defences that are available to them are, I believe, both clear and reasonable. This amendment would not help them. On that basis, I urge the noble Lord not to press Amendment No. 62A.
I am grateful to the Minister for his reply and to all noble and gallant, noble and learned and noble Lords for their contributions. I am particularly grateful to the noble and gallant Lords, Lord Inge, Lord Vincent and Lord Craig, the noble Lord, Lord Ramsbotham, and the noble Viscount for their support for at least the principle of the amendment, if not necessarily the detailed drafting.
Between them they raised some very important points about contemporary warfare. The noble and gallant Lord, Lord Vincent, reminded us that we are dealing with a very different kind of foe from the one we dealt with in the 20th century. We are dealing with enemy soldiers who do not respect any principles of international law, while we are required to do so. This is a very different world from the one that we had only recently to cope with.
The noble and gallant Lord, Lord Craig, made an extremely penetrating intervention in which he reminded us of the importance of political commitment to our Armed Forces. We have seen some examples recently of politicians trying to distance themselves from some of the things that the Armed Forces have sought to do. It is absolutely critical for the morale of our Armed Forces that politicians are seen to stand four-square behind everything the forces do. In my submission, that would be one of the beneficial effects of these amendments.
Our soldiers are now operating in a world where we have an international criminal court and an international criminal convention, and where some other nations might take the view that we are engaged in unlawful warfare, making each soldier a criminal in everything he does. These are very uncertain times for our Armed Services and they need the confidence that we can give them by including this amendment on the statute book.
The noble Lord, Lord Garden, said one of the difficulties about an amendment like this was the question of proportionality. A lot of people think that proportionality was invented by the human rights convention; but the concept has run through our military law for hundreds of years. The principle is simply that a soldier has to use reasonable force. If, in any circumstances, a soldier uses unreasonable or disproportionate force, he contravenes the criminal law. That applies not only to the black-letter law but also to the rules of engagement. There is no difference.
The “absolute” refers to the defence itself. But, of course, if a soldier who operates within the framework of a rule of engagement acts disproportionately, he will not have that defence. That must follow, not from anything in the Human Rights Act, but from a very long-standing principle of the common law. In any service context the force one uses, whether soldier, airman or sailor, must be reasonable. That principle can never be removed. I suppose it is possible that a Government could remove it by statute, but I cannot think of any Government who would be foolish enough to do so. It underlies everything and would obviously qualify the application of any rule, whether it is the criminal law or a rule of engagement.
I was therefore extremely disappointed at the Minister’s response. We accept that the drafting of these amendments could be improved. Having heard the points made by noble and gallant Lords, I would probably want to come back on Report with something much simpler as far as Amendment No. 60 is concerned. In addition, we very much take the point made by the noble and gallant Lord, Lord Inge, about the defence cuts.
The Minister suggested that the rules of engagement—I am trying to remember exactly what his words were—provided simply an operational framework. That would seem to provide no comfort at all to our Armed Forces, and I am very puzzled by it. Is the Minister saying that, if a soldier operates within the rules of engagement and uses reasonable force in the circumstances, that should not be an absolute defence to his conduct? Would the Minister be prepared to see a newspaper tomorrow morning report him as saying that, despite the fact that a soldier conforms with a rule of engagement and exercises reasonable force in the circumstances, he is capable of being prosecuted for murder? Is that what he is saying?
The Minister has not responded to that so I will leave him to think about it. Meanwhile, I beg leave to withdraw the amendment.
We had a meeting earlier in the year about the whole area of the rules of engagement and a briefing on the subject. If it would be helpful for noble Lords to have a further meeting and discussions, I would be more than happy to have them.
I recognise the complexity of the area but I sincerely believe, having listened to the arguments from across the Committee, and again from the noble Lord, Lord Kingsland, that there is a fundamental misunderstanding. Perhaps this misunderstanding comes from the fact that the rules of engagement are confidential and we are not in a position to go through the detail of them with noble Lords.
In response to what the noble Lord, Lord Kingsland, has just said, I reiterate that it is not just a question of whether the individual soldier has operated in compliance with the rules of engagement; it is still up to the individual how he carries out the task. That individual responsibility cannot be overridden by the operational orders and operational framework as described in the rules of engagement. Does the noble Lord accept the point—which I have, perhaps, laboured—that the purpose of the rules of engagement is primarily to enable our commanders to operate effectively in the field? We must make sure that in our wish to provide a framework to strengthen the defence for our Armed Forces personnel we do not prejudice the whole purpose of the operation and of the rules of engagement. I would be interested to know whether the noble Lord accepts that point.
The purpose of the amendment is to assist not the commanders but the soldiers, who, after all, do the actual fighting. I understand entirely the Minister’s concerns about confidentiality; but I am quite sure we can devise an amendment which protects that while providing the protection which I believe the soldiers need.
I do not understand why the Minister will not respond to the question I put to him earlier. I will put it to him again: is he saying that a soldier who conforms to the rules of engagement and exercises only reasonable force in the circumstances in accordance with the common law could nevertheless be prosecuted for murder? Is that what the Minister is saying?
I do not believe it is helpful for us to continue the debate in this way this evening. I am prepared to meet the noble Lord to discuss this further and to write to him. It is clear that we need to have further discussion. I will read Hansard and fully reflect on what has been said this evening. I ask noble Lords, if they have the time, to reflect on what I have said this evening and to meet me. The noble Earl’s suggestion that we look at an out-of-date and no longer confidential set of rules of engagement is a very good idea which I think will help us to clarify some of these issues.
The debate has been extraordinarily useful. I remain uncertain about the effect of putting the rules of engagement on a statutory basis, but we should consider their status within the framework of the Bill. I beg leave to withdraw the amendment.
Amendment No. 62, as an amendment to Amendment No. 61, by leave, withdrawn.
Amendment No. 61, by leave, withdrawn.
[Amendment No. 62A not moved.]
Clause 50 agreed to.
After Clause 50, insert the following new clause-
Where the courts of any part of the United Kingdom have extra-territorial jurisdiction under statute to try, determine or punish any service offence committed abroad, the person accused may elect to be tried in the United Kingdom for the offence.”
The noble Lord said: I had not appreciated that Amendment No. 63 was grouped with the earlier set of amendments and did not address it. I do not propose to take the matter any further this evening because I have had the Minister’s reply on this point. Since I have not had the opportunity of advancing the argument in favour of this amendment, I shall do so at a later stage.
[Amendment No. 63 not moved.]
Clause 51 agreed to.
Before Clause 52, insert the following new clause-
“PERSONS SUBJECT TO MILITARY LAW
Every person subject to military law shall readily be able to determine who is his commanding officer.”
The noble Earl said: I should like to speak to Amendments Nos. 65 to 68 as well. The service discipline Acts refer extensively to the term “commanding officer”. Service people will normally know who their commanding officer is, but those reading the Bill and the existing service discipline Acts may not realise that the power of the commanding officer can be delegated, particularly under the summary dealing regulations—often, in the Army, to the officer commanding, who would be a major, or the equivalents in other services. The orderly officer may have some of the powers of a commanding officer, particularly to put service persons in custody temporarily, immediately and maybe in an emergency, when the commanding officer is not available. It would be helpful if the Minister could explain the extent of this ability to delegate the powers of the commanding officer.
On Amendments Nos. 65 to 68, the Bill allows the commanding officer to deal summarily with junior officers. This is a new development. As the Bill is drafted, the commanding officer—a lieutenant-colonel, say—can discipline a major, who could be his second-in-command. Many commanding officers I have talked to are, to say the least, uncomfortable with the possibility of having to discipline their second-in-command. Can the Minister assure me that the summary dealing regulations will not allow the commanding officer to deal with his immediate subordinate officers and that the regulations will provide a two-rank gap between the commanding officer and the officer he is dealing with? If he can, why does the Bill not provide for that in the first place?
Finally, Amendment No. 68 makes it clear that volunteer reservists are subject to military law whenever they are on military premises. At present, they are no longer subject to military law after the end of the dismissal parade, which leaves a bit of a gap in service law. I hope the Minister can reassure me that the Bill deals with that. I beg to move.
I will deal with Amendment No. 64 first and then go on to Amendments Nos. 65 to 68.
Amendment No. 64 seeks to provide that every person shall readily be able to determine who his commanding officer is. I understand that, through this amendment and others he has tabled about the terms “officer” and “superior officer”, the noble Earl seeks clarity for soldiers, sailors and airmen. I am pleased that we have a common aim in that regard.
As the noble Earl has said, I have written to him on these issues. I hope that he is reassured that through the regulations we will be able to achieve the clarity he seeks. I am willing to meet with him to discuss that further. I recognise that in the Bill overall, there is a significant reliance on trust in certain aspects. The regulations that will be brought forward will meet some of the issues which noble Lords have raised in a number of briefings. I will be happy to meet the noble Earl to go through that further.
The combined effect of Amendments Nos. 65 to 67 would be to reduce the highest rank of officers that may be dealt with summarily from commander and equivalents to lieutenant and equivalents, to remove the power to deal summarily with warrant officers, and to require the commanding officer to be at least two ranks above the accused before he may hear a charge summarily. Perhaps I may explain the position under the current service discipline Acts.
For the Army and the RAF, warrant officers and officers up to the rank of lieutenant-colonel or wing commander are dealt with summarily by an appropriate superior authority—that is, a senior officer of one-star or two-star rank who has powers of punishment over those individuals. In the Royal Navy, warrant officers and officers up to the rank of commander are dealt with by the commanding officer if he is at least two ranks above the rank of the accused and otherwise by the appropriate superior authority.
Under the Bill, we have removed the concept of an appropriate superior authority and provide instead for these individuals to be dealt with by the commanding officer. But it will, as now, be possible to appoint a commanding officer to an individual for a specific purpose in regulations. So the Bill retains the current power to hear charges summarily against all ranks up to those of commander and equivalents, but the regulations will ensure that they are heard by an officer of an appropriately senior level. Specifically, the commanding officer must be two ranks above the accused. I trust the noble Earl is reassured on those two aspects.
Finally, Amendment No. 68 would make reservists subject to service law when on a service base, ship or aircraft. Clauses 360 and 361 set out the circumstances in which reservists are subject to service law. These provide that they will be subject to service law when they are carrying out any activities as reservists.
To extend this in the way in which the noble Earl’s amendment seeks would be to make it unnecessarily wide. The services have no desire to extend the times when reservists are subject to service law in this way, and believe that it is important to link the times when a reservist is subject to service law to the activities in which he is engaged, rather than where he is located.
Additionally, the Bill already provides that a person is “subject to service discipline” while he is in one of Her Majesty’s ships afloat or one of Her Majesty’s aircraft in flight. This applies to a reservist as well as anyone else who is not subject to service law. On the basis of this explanation, I ask the noble Earl to withdraw his amendments to this clause.
I am grateful for the Minister’s explanation. I have some queries, but I shall follow them up by other means. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 52 [Charges capable of being heard summarily]:
[Amendments Nos. 65 to 68 not moved.]
Clause 52 agreed to.
Clause 53 agreed to.
Schedule 1 agreed to.
Clauses 54 to 57 agreed to.
Clause 58 [Time limit for charging civilian formerly subject to service discipline]:
Page 26, line 28, leave out subsections (5) and (6) and insert-
“(5) Subsection (6) applies to a person-
(a) who ceases to be a civilian subject to service discipline by reason only of- (i) leaving an area designated for the purposes of Schedule 15; (ii) entering the British Islands; or (iii) leaving an area which a designation under paragraph 7 of Schedule 15 specifies as an area that he must be in for the designation to apply to him; and (b) who is residing or staying in a qualifying place at the time he does so. (6) As regards that time, and for so long after that time as he continues-
(a) to reside or stay in a qualifying place, and (b) to be a person who is not a civilian subject to service discipline but who would be such a civilian if he were in a qualifying place, he is to be treated for the purposes of this section (apart from subsection (5)) as being such a civilian. (7) In subsections (5) and (6) “in a qualifying place” means-
(a) in relation to a person who falls within subsection (5)(a) by reason of leaving an area designated for the purposes of Schedule 15, in any such area; (b) in relation to a person who falls within subsection (5)(a) by reason of entering the British Islands, outside the British Islands; (c) in relation to a person who falls within subsection (5)(a) by reason of leaving an area mentioned in subsection (5)(a)(iii), in that area.”
On Question, amendment agreed to.
Clause 58, as amended, agreed to.
Clauses 59 and 60 agreed to.
After Clause 60, insert the following new clause-
“TIME LIMIT FOR CHARGING SCHEDULE 2 OFFENCES
(1) Where an investigation has been opened by the service police under the authority of the Director of Service Prosecutions into an alleged Schedule 2 offence, the Director shall, except as otherwise provided in this section, bring the case to court or withdraw it within one year of the opening of that investigation.
(2) Where the Director has reasonable grounds for seeking an extension of time for the investigation and preparation of a case, he may, within one year of the opening of that investigation, apply to the court for an extension of time for that purpose.
(3) On an application by the Director for an extension of time under subsection (2), the court may hear any related application on behalf of the defendant and shall grant an extension of not more than a further twelve months on such conditions as it considers appropriate.
(4) In the event that the case is not brought to court before the conclusion of the period allowed (including any extension),the defendant may apply to the court to have the prosecution by the Director permanently stayed and for the case to be remitted to the commanding officer concerned for a summary hearing.
(5) On the hearing of an application by the defendant under subsection (4), the court shall order accordingly.
(6) For the purposes of this section a case shall be considered as “brought to court” on the day upon which the prosecution opens its case.”
The noble Lord said: The Minister has very helpfully written to me to point out the drawbacks of our amendment and we accept his points. I am therefore happy to withdraw the amendment if we receive an undertaking from the Minister at the Dispatch Box that the Government recognise the importance of avoiding unnecessary delay and are working hard on streamlining the process.
The length of time that certain recent cases have taken to be brought to court is, I believe I can fairly say, universally abhorrent to all Members of your Lordships' House, as it is to the Armed Forces. I beg to move.
As far as the principle of the amendment of the noble Lord, Lord Astor of Hever, goes, anything which compresses the time is very welcome, but I have concerns about the practicality, which the Minister may well want to address. It is ultimately a question of there being enough time for justice to be done, but I will wait to hear what the Minister says.
I am grateful to the noble Lord for his response to my letter, and I am happy to assure him categorically of the absolute need to avoid unnecessary delay. We need to streamline our process, but we need also to ensure that it is done in a way which is consistent with justice.
In the light of the Minister’s undertaking, I am very happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 61 [Sections 55 to 60: exceptions and interpretation]:
[Amendment No. 71 not moved.]
Clause 61 agreed to.
Clauses 62 to 66 agreed to.
Clause 67 [Power of arrest for service offence]:
[Amendment No. 72 not moved.]
Clause 67 agreed to.
Clauses 68 to 75 agreed to.
Clause 76 [Stop and search by persons other than service policemen]:
There is an error in the Marshalled List. Amendment No. 73 should come after Amendment No. 75.
[Amendments Nos. 74 and 75 not moved.]
[Amendment No. 73 not moved.]
Clause 76 agreed to.
Clauses 77 to 90 agreed to.
Clause 91 [Entry for purpose of arrest etc by other persons]:
Page 43, line 7, leave out “An officer” and insert “A commanding officer or an officer designated under subsection (7)”
The noble Lord said: In moving the amendment, I shall speak also to my other amendments in this grouping. They are an odd ragbag and are probably better dealt with together.
Amendment No. 76 is designed to be helpful and to clarify what Clause 91 is about. One has to get to the very last section to discover that it is about commanding officers and how they are delegated. My amendment would clarify that from the outset and make the clause easier to read.
I have tabled a number of amendments toClause 100: Amendments Nos. 78 and 82 to 86. They have been grouped together because they all have something to do with time. Amendment No. 78 would put some limit on how long a review can be postponed if a commanding officer is not readily available. I propose 96 hours, although I have no particular attachment to that figure if there is a better one, but I feel that noble Lords would want to know that there is a time limit of some sort for this process.
Amendment No. 82 also relates to time periods in the review of custody by the commanding officer in Clause 100. The word “approximate” is used for the various time limits. I am not a lawyer, but “approximate” seems to be a rather strange word to use. Why can we not define maxima, rather than just leave it up to our learned colleagues to debate how approximate “approximate” is?
Amendments Nos. 83 to 86 are rather more serious. They would set a unified cut-off age rather than have some provisions that apply for age 17 and others for those aged under 18. Following the Deepcut inquiry, it is clear that we need to take special measures for under-18 year-olds when the Armed Forces are dealing with them. Therefore, wherever the age 17 appears in the Bill, I have raised it to age 18. I do not doubt that the Minister will tell us that the legislation is merely in line with civil law, but how under-18s are used in the service environment is a different matter. I beg to move.
Amendment No. 76 is unnecessary. Clause 91 allows a commanding officer to authorise any member of the Armed Forces who is not a service policeman to exercise similar powers to enter and search premises to make an arrest as those afforded to the service police under Clause 90. This reflects the fact that service police are not always readily available.
I will deal now with Amendments Nos. 78 and 82, which relate to the regime for custody. These provisions are very little changed from the current regime under the SDAs, which were introduced in the Armed Forces Discipline Act 2000, which themselves were based upon provisions in the Bail Act 1976 and the Police and Criminal Evidence Act 1984. With regard to Amendment No. 82, for example, the provision regarding timings being approximate in the Bill is identical to the PACE provision and allows the arrangements to work in practice.
Amendment No. 78 could have the effect of extending the period which the commanding officer alone can authorise an accused to be kept in custody without charge, without making an application to a judge advocate. In the interests of the accused, this should not be a power that applies in all cases. We have, however, already provided, in Clause 102, for a commanding officer to be able to do this in extremis where it is not practicable to get before a judge advocate within the 48-hour period, but this is subject to tight control. This is already the position under the current service discipline Acts and we believe that it works well in practice.
I hope that with these reassurances the noble Lord feels able not to press his amendments.
Amendments Nos. 83, 85 and 86 together relate to age. They amendments would raise the relevant age limit in each clause from 17 to 18. Clause 106 sets out the conditions which a judge advocate must have regard to when he is considering whether to authorise post-charge custody. One condition is that the judge advocate is satisfied that the accused should be kept in service custody for his own protection or, if he is aged under 17, for his own welfare or in his own interests.
Clause 107 sets out what other factors a judge advocate should consider when releasing an accused person from custody. Subsection (3) permits the judge advocate to require the accused to comply with certain requirements. These are generally the same as those which apply in civilian proceedings. Among them, at Subsection 3(d) is that a person who is under 17 may be subjected to certain requirements by a judge advocate on or after release if the judge advocate considers it necessary for the welfare of the accused or in his interests.
Clause 110 deals with the situations, post-charge, or post-conviction, when a commanding officer may be permitted to order the arrest of a person who is not in service custody. Subsection (3) permits a commanding officer to order the taking of a person into service custody when certain conditions exist. These conditions are generally the same as those which apply in relation to civilian proceedings, as the noble Lord has guessed. One condition is that a person who is under 17 may be taken into custody for his own welfare or in his own interests.
We do not think that in any of these three clauses there is a case for the services to have a higher age limit to that which applies in civilian proceedings. The effect in each case would be to make an accused more susceptible to custody than would be the case if they were to appear before a civilian court, notwithstanding the wide range of appropriate steps short of custody which are also available to the chain of command. For these reasons I ask noble Lords not to press their amendments.
I will finally deal with the second aspect of these amendments, which is in relation to Clause 106 only—Amendment No. 84. This clause sets out the conditions a judge advocate must consider when determining whether to authorise keeping an accused in custody under Clause 105. Conditions A to D are generally the same as those which apply in relation to civilian proceedings. Among them, condition B is that a person who is under 17 may be kept in service custody for his own welfare or in his own interests.
The purpose of Amendment No. 84 appears to be clarification. Although noble Lords are of course right to point out that condition D applies only in the circumstances set out in Clause 109, that is already the effect of Clauses 106 to 109 when read together. The amendment would not change the substantive position and the clause as drafted is, I believe, sufficiently clear. I would therefore ask that the amendment be withdrawn.
I am grateful to the Minister for going through all those amendments. I apologise for not having spoken to Amendment No. 84, but he described the rationale for it—to clarify the situation—probably better than I could have done. We were trying to be helpful with the two amendments which act as clarification without changing the meaning. If the Government want to stay with their own language, however, we will not fight that terribly hard.
On Amendment No. 78, I shall look at the Minister’s remarks in Hansard, because I could not work out what the maximum time was if special circumstances pertained. If he tells me that it is sufficiently constrained—I am sure that it is—we can look and see how it is constrained and decide how we come back on that.
I shall try to be helpful to the noble Lord. The maximum time that an accused may be kept in custody under these provisions is 96 hours. The commanding officer can authorise up to 48 hours and thereafter he must apply to a judge advocate, who can then authorise continued detention up to a maximum of 96 hours.
I am grateful for that. So the time limits are all covered, which is what I wanted to know, and I am more than happy with that.
On Amendment No. 82, I remain surprised that the word approximate is used, but if that is how legislation is done, so be it. On the question of the cut-off for 17 or 18 year-olds, I am afraid that I remain concerned that the Ministry of Defence does not seem to have taken to heart the recommendations of the Blake review into Deepcut. Military life is not the same as civilian life; there is a special duty of care in the military to those who are under 18. I shall come back to it under later amendments in the Bill, in a more serious way. But I shall read what the Minister has said in Hansard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 77 not moved.]
Clause 91 agreed to.
Clauses 92 to 99 agreed to.
Clause 100 [Review of custody by commanding officer]:
[Amendment No. 78 not moved.]
Clause 100 agreed to.
Clause 101 [Extension by judge advocate of custody without charge]:
[Amendments Nos. 79 to 81 not moved.]
Clause 101 agreed to.
Clauses 101 to 103 agreed to.
Clause 104 [Custody without charge: supplementary]:
[Amendment No. 82 not moved.]
Clause 104 agreed to.
Clause 105 agreed to.
Clause 106 [Conditions A to D]:
[Amendments Nos. 83 and 84 not moved.]
Clause 106 agreed to.
Clause 107 [Release from custody after charge]:
[Amendment No. 85 not moved.]
Clause 107 agreed to.
Clauses 108 and 109 agreed to.
Clause 110 [Arrest after charge or during proceedings by order of commanding officer]:
[Amendment No. 86 not moved.]
Clause 110 agreed to.
Clauses 111 to 113 agreed to.
Schedule 2 ["Schedule 2 offences"]:
Page 193, line 22, leave out “or (2)”
Page 193, line 23, leave out from “section” to end of line 24 and insert “33(1) (dangerous flying etc).”
On Question, amendments agreed to.
Schedule 2, as amended, agreed to.
Clauses 114 and 115 agreed to.
After Clause 115, insert the following new clause-
“Duty of service policeman during investigation INVESTIGATING SERVICE POLICEMAN TO INFORM COMMANDING OFFICER OF PROGRESS OF INVESTIGATION
The member of the service police force who is appointed to lead the investigation into an allegation that a service offence has been committed shall keep the commanding officer of the unit or formation of which the person (or persons) against whom the allegation is made is a member closely, promptly and regularly informed of the progress of the investigation.”
The noble Lord said: On behalf of the noble and gallant Lord, Lord Bramall, I wish to move Amendment No. 89 and speak to Amendment No. 90. The Government have largely addressed our Amendment No. 89 with their amendment on the vital issue of the service police keeping the CO informed of the progress of an investigation. I thank the Minister for the work he has done behind the scenes to facilitate that. Accordingly, I shall withdraw this amendment. I am also minded to withdraw Amendment No. 90 if I receive a clear, unequivocal commitment from the Minister at the Dispatch Box that the issue of our Amendment No. 90, the power of COs to be able to make representations, will be very clearly addressed in regulations. I beg to move.
When we discussed this whole issue with the Minister—the noble Lord, Lord Astor, has mentioned that—reference was continually made to the need to keep the commanding officer informed throughout the process. I note that AmendmentNo. 89 says that the commanding officer is,
“promptly and regularly informed of the progress of the investigation”.
But I note that the word “regularly” is not mentioned in government Amendment No. 90A, which uses the term,
“as soon as reasonably practicable”.
I do not know whether it is constitutional to ask that the word “regularly” be inserted after the words,
“as soon as reasonably practicable”,
to make certain that the commanding officer is kept informed throughout the process and not merely once the matter has been referred. This is a matter of considerable importance, certainly to commanding officers.
I am grateful to the noble Lord. I do not think that there is any disagreement between us on the central importance of this matter. The commanding officer must be kept regularly informed of service police investigations of his personnel. I am happy to give the commitment for which the noble Lord asked—that the powers of commanding officers will be clearly addressed in regulations. I gave a commitment at yesterday’s briefing to provide the earliest possible sight of the regulations as they are drafted. These matters of central importance will be first on the list of the regulations and we will discuss them at the earliest opportunity.
As the noble Lord has said, I have listened carefully to the general concerns about this area. They are important and genuine, and government Amendment No. 90A is designed to address them. I hope that I have provided the reassurance for which the noble Lord asked. I emphasise the importance of regular communication. I will consider whether it would be appropriate to take the matter further and come back to him.
Having given general support to the amendments, these Benches are pleased to see that the government amendment covers what is required. However, it would be worthwhile considering the points that the noble Lord, Lord Ramsbotham, has made on ensuring that there is regularity in this matter. We certainly support Amendment No. 90A.
I am grateful to the Minister for his undertaking and for his assurance that we will have the earliest possible sight of the regulations. As he knows, we take this matter very seriously. I am grateful for all the work that he has done behind the scenes. In the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 116 [Referral of case following investigation by service or civilian police]:
[Amendment No. 90 not moved.]
Clause 116 agreed to.
Clause 117 agreed to.
After Clause 117, insert the following new clause-
“DUTY OF SERVICE POLICEMAN TO NOTIFY CO OF REFERRAL TO DSP
(1) This section applies where a service policeman considers that there is sufficient evidence to charge a person (“A”) with a service offence and refers the case under section 116(2) to the Director of Service Prosecutions.
(2) The service policeman must as soon as reasonably practicable after referring the case-
(a) notify A's commanding officer of the referral; and (b) provide prescribed documents to A's commanding officer. (3) A notification under subsection (2)(a) must specify-
(a) the service offence the service policeman considers there is sufficient evidence to charge A with; and (b) where that offence is not a Schedule 2 offence, the circumstances he is aware of that are of a description prescribed as mentioned in section 116(2)(b). (4) In this section-
(a) any reference to there being sufficient evidence to charge a person with a service offence is to be read in accordance with section 116(5); (b) “prescribed documents” means documents prescribed for the purposes of subsection (2)(b) by regulations under section 127. (5) Section 117(3)(a) (certain cases to be treated as referred under section 116(2)) does not apply for the purposes of this section.”
On Question, amendment agreed to.
Before Clause 118, insert the following new clause-
“MODE OF TRIAL
(1) The Attorney General may apply to the High Court for a trial in a civilian court of a person subject to service law on a charge of-
(a) murder, (b) manslaughter, (c) an offence under the Geneva Conventions Act 1957(c. 52), alleged to have been committed by that person when on active service in operational circumstances and which otherwise could be tried by the Court Martial. (2) In making an application under subsection (1) the Attorney General must set out the grounds on which the application is being made, and shall provide the person in respect of whom the application is being made with reasonable notice to enable that person to object to the application.
(3) When an application is made under subsection (1) the High Court may-
(a) grant the application, but only if it is satisfied that- (i) it would be in the public interest to do so, and (ii) there is a realistic prospect that a jury duly directed could properly deliver a guilty verdict, (b) adjourn the hearing until it is satisfied that the conditions in paragraph (a)(i) and (ii) are satisfied, and in so doing it may give such directions as it deems appropriate, or (c) reject the application. (4) The Attorney General may only institute proceedings in a civilian court against a person subject to service law on a charge under subsection (1)(a) to (c) which otherwise could be tried by the Court Martial if he has made an application to the High Court which has been granted in accordance with subsections (1) to (3).
(5) The Director of Service Prosecutions may not bring a charge for trial in a civilian court of a person subject to service law of an offence other than those in subsection (1)(a) to (c) unless the person has been given an opportunity to make representations to the Director in accordance with regulations made by the Secretary of State.”
The noble Lord said: This is a probing amendment. I speak also to Amendment No. 208, which is consequential. I am very grateful to the noble Lord, Lord Drayson, who took a lot of trouble and laid on an informal meeting to try to resolve a little local difficulty that arose on Second Reading. I am also grateful for his letter, a long exposition that I received only this morning. Fortunately, by chance I met the noble and learned Lord, Lord Goldsmith, in the Guards Chapel and we agreed that he was the gatekeeper to the citadel, as it were, and would speak to the matter tonight. I am grateful to the noble and learned Lord for that.
I say at the outset that it is accepted that the Trooper Williams fiasco cannot be repeated, as this Bill removes the power of a commanding officer to dismiss a charge without any form of hearing and before consideration of the SPA. Further, an amendment has been tabled to provide that the senior service police shall inform the commanding officer when a serious case is referred to the Director of Service Prosecutions. It is also accepted that only in exceptional circumstances will cases be heard in the civil jurisdiction. So we have made a lot of progress under the construction of the Bill. But the process under which resort to the civil jurisdiction is sought and granted by the Attorney-General by ordinance ex cathedra in the exercise of absolute discretion without notice, means of objection or reasons, which may not be challenged in any court of law, remains in the Bill. There was some discussion about that on Second Reading but, as I see it, and as I think the noble and learned Lord, Lord Goldsmith, sees it, it is in the Bill. It is not removed. It may be qualified only by statute as proposed by this amendment. The object of the amendment is to seek to ensure that this administrative decision is exercised fairly according to the tenets of natural justice within the law, in the interests of the service and to alleviate the concern of noble and gallant Lords. Their main concern is with the cases of murder, manslaughter and breach of international convention—which is of particular importance to the noble and gallant Lord, Lord Boyce, who spoke about it. The concern is as to the deprivation of the legitimate expectation of trial by court martial—of which there was some discussion previously today—and to its the effect on the integrity and authority of the chain of command and on morale and discipline.
This amendment is a measure of safeguard and would wholly alleviate that concern. The High Court would decide whether there was a realistic prospect of conviction and whether it was in the public interest that the trial should take place under the civil jurisdiction. The noble and gallant Lord, Lord Bramall, made it plain to me that this safeguard of the High Court would remove and wholly alleviate any concern of noble and gallant Lords. The opinion of the Crown Prosecution Service, if sought, would no longer be relied upon, and the rules of procedure of the High Court would apply as to any other application for leave. In all other cases the rules of procedure under the Bill would provide for notice of the substance of the grounds on which the decision to ordain trial under the civil jurisdiction was made and would afford means of objection. That is in accordance with the fundamental concept of natural justice and is as referred to by the noble and learned Lord, Lord Mackay of Clashfern, on a previous occasion.
I do not want to take up much time. It is accepted that it is not the purpose or the province of the judiciary to decide whether a person should be prosecuted unless there is an abuse of process. The question arising here is not whether the serviceman should be prosecuted, but under which jurisdiction and whether it should be under the civil jurisdiction or by court martial. The application of the Attorney-General to the High Court for leave to proceed under the civil jurisdiction is not to seek a prosecution. The Attorney-General is answerable to Parliament for the conduct of his functions, but as yet he is not, and perhaps never will be, answerable to the court of law for compliance with the law in the discharge of his functions in accordance with natural justice. It may be that some undertaking could be given to Parliament.
What should be done? That is a matter for your Lordships. What is the view of my noble and learned friends and other noble and learned Lords who have served as Attorney-General? What should be the response of the noble and learned Lord, Lord Goldsmith? I think I know the response of my noble friend Lord Kingsland; he is not madly enthusiastic about this exercise, putting it mildly. But it is not a matter for any one person; it is a matter for the consideration of the Committee. I am not seeking it today; and unless I have a measure of some support I may well not seek it again. I beg to move.
My noble friend beside me has rendered the Committee a signal service in the tenacity and perspicacity with which he has ventilated a matter of considerable anxiety. I do not think that it can really be doubted that in the notorious case concerning Trooper Williams, the Attorney-General’s decision to refer the case to a civilian court caused great surprise. It had not been widely recognised that such a discretion of the Attorney-General existed, and had existed for a considerable time, particularly after a commanding officer had, by virtue of his own decision dismissing a charge, effectively blocked any further proceedings against the defendant on the same charge in the military system. So there was a great deal of surprise.
It also attracted much criticism partly because, for Trooper Williams, the decision came out of the blue. He had been, as it were, in lay terms acquitted by the commanding officer, and he thought that that was that. It came out of the blue partly because there was no warning and no opportunity for him to make representations to any authority—the Attorney-General or anyone else—and partly because it was thought that there really ought not in fairness be a second bite of the cherry for the prosecution after the commanding officer had dismissed the charge of murder on military legal advice—advice which, incidentally, was later shown to be sound. So it has been a pretty controversial case, and rightly so, ever since. I agree with Ministers and others with military experience that the effective blocking by a commanding officer of any further proceedings in the military system cannot really be justified. The removal of that possibility is achieved by the Bill. Obviously, there are considerations of conflict of interest that arise in a way that could not really justify the continuance of that arrangement.
My noble friend’s amendment raises the interesting and important question of whether the Attorney-General should continue to have sole and unqualified discretion to order that there should be processed in the civilian system and not the military system any charge against a service person of murder, manslaughter or breach of the Geneva Convention. That is a very important issue. I am afraid, and my noble friend knows this, that I cannot go along with him on the proposition that the Attorney-General must first obtain the leave of the High Court, on the terms proposed in the new clause or indeed on any terms. My reason is this. The Attorney-General is the guardian of the public interest under our constitutional arrangements, and in my view much depends on no inroads being made into that doctrine and practice. It may not look as though it can work well, but it does work, has worked and will continue to work well; and I, for my part, do not think that it ought to be disturbed. I can see faces all around me who I suspect are concealing thoughts that go along the lines of, “Well, he would say that, wouldn’t he? He has been one”. But I do believe that that proposition stands up to the test of practical efficiency and serviceability.
There is another difficulty in that the issue that would have to be put to the High Court might properly and probably not entertain a judge. He probably would say, “This is not justiciable in a court of law; it should be a matter for the discretion of the Attorney-General, who is, rightly, responsible to Parliament”.
But that is not the end of the matter, because my noble friend has done an important service—he has highlighted the unsatisfactory character of a power to direct a civilian trial without affording to the accused any opportunity to make representations on the matter. A serviceman or servicewoman is in a unique position—we are talking about offences that can be tried only by court martial and for which the accused may well have a legitimate expectation that he will be tried by court martial.
I paid attention in our earlier debates in particular to what was said more than once by the noble Lord, Lord Drayson, about the importance in the eyes of the Government of sustaining a separate and comprehensive system of military justice. All of us understand why that is important. Therefore, it may well be envisaged that an accused may have a “legitimate expectation”—in the language of the law—that he will be tried within that system. Certainly, he may have a proper desire to be tried by court martial and that should be respected, even if the Attorney-General ultimately decides within his constitutional discretion that that desire cannot be met.
The way to achieve that is, surely, to require the Attorney, if he is minded to go for a civilian process, to give notice to the servicemen and to tell him that he can make representations on the matter if he so wishes. That is a lacuna in terms of fairness and it can be filled. If my noble friend’s scheme were modified to achieve just that, but no more, I would support it—and I hope that Ministers would do so.
Perhaps I may raise with the noble and learned Lord the Attorney-General the much-related point regarding the additional jurisdiction of the court martial to hear and determine cases involving murder, manslaughter, rape and treason that are committed in this country. As the noble and learned Lord will know, and as we were told in our earlier debates, since the 16th and 17th centuries, those offences could be heard only in the civil courts. This Bill provides for a dramatic extension of jurisdiction to enable courts martial to deal with such cases, even if the offences are committed in this country.
Who will decide whether the trial is civil or for a court martial? If a serious offence happens overseas, there are arrangements between the local jurisdiction and British forces as to which should have precedence. In this country, where there is dual jurisdiction for matters other than the serious offences to which I referred, the Queen’s Regulations set out various ways in which the choice can be made. It is usually made by the chief officer of police for the district within which the offence was committed and that is a matter of liaison between him and the commanding officer.
What happens now? Will the Attorney-General himself determine whether there should be a trial by court martial for a murder committed in this country, or should it be decided by the Crown Court, or will someone else decide this issue? Will it be the Director of Service Prosecutions or the Director of Public Prosecutions? The mechanism by which that choice will be made is not spelt out in the Bill and that question is very much related to the matter raised by the noble Lord, Lord Campbell of Alloway. I hope that he forgives me for speaking to his amendment in this way.
I have been named by my noble friend Lord Campbell of Alloway as one Member of your Lordships’ House who will not support the amendment. I freely admit that that is the case. It is not that I in any way decry the ingenuity that lies behind the drafting. It is a characteristically ingenious amendment and there are circumstances in which it would be welcome; but I am opposed to it for a number of reasons.
The first of those is that given by my noble and learned friend Lord Mayhew of Twysden. The constitutional position is that the Attorney-General is accountable to Parliament, not for the substance of his decisions, but for the way in which he makes his decisions, for his independence and for the probity that he brings to bear on his decisions. He is not accountable for the decision itself. That is a responsibility that our constitution gives to him alone. It is not right that even a towering figure in our nation such as the Lord Chief Justice or another senior judge should be in a position to second guess that decision.
The noble and learned Lord, Lord Mayhew, raised a related issue: what about the legitimate expectation of the serviceman himself? If such a serviceman had sat in the Gallery this afternoon, he would have heard the Minister underpin the Government’s approach to the Bill as one that integrated service disciplinarylaw with criminal law. It provides, as the noble Lord, Lord Drayson, said on a number of occasions, a comprehensive legal system. It must follow, as my noble and learned friend said, that a serviceman would have an expectation that if it were alleged that he had committed an offence, he would be tried within the military system; and that if a different decision were made, he should be allowed to have a view about that and to be able to express it. There is something to be said about having that position reflected in the Bill; but, with great respect, it should not be reflected in the way that my noble friend Lord Campbell of Alloway sought. The serviceman should be able to make representations, perhaps to the Attorney-General himself.
The other reason why I am not inclined to support my noble friend’s amendment is that it is unnecessary. At Second Reading, the Minister made it crystal clear that, in future, all servicemen who are engaged in operations in circumstances where there is a question over the legality of their behaviour would be prosecuted by the new services prosecutor and that all such prosecutions would be heard by a court martial. The Minister made that statement unequivocally. It follows that the problem raised by the noble Lord, Lord Campbell of Alloway, would not arise.
I am confident that the position is now clear and that the logic of the Bill flows from that position. The Bill clearly provides a comprehensive system for criminal law in relation to servicemen. If that is so, we will have a watertight system whereby criminal proceedings would end up in a court martial. We do not need a mechanism to deal with the transfer of cases from the military system to the civilian system, because that is not the Government’s intention.
I thought it right to speak to this amendment myself because it relates to my role, it arises out of the Trooper Williams case and I believe that, by doing so, I would respond to the wishes of the Committee. I made that decision before fortuitously meeting the noble Lord recently and telling him that. Therefore, I am grateful to my noble friend Lord Drayson, who has charge of the Bill in this House, for giving way to me on this amendment. I do not need to say anything about Amendment No. 208, which is entirely consequential. I may touch briefly on Clause 126, which is in this grouping, but I do not know whether the noble Earl, Lord Attlee, is intending to oppose the Question whether the clause shall stand part. He shakes his head, so perhaps I shall explain it briefly and say no more.
Like the noble and learned Lord, Lord Mayhew of Twysden, I acknowledge with admiration the clarity and energy with which the noble Lord, Lord Campbell of Alloway, has pursued his concern in previous debates and today. I suggest, and shall be suggesting to him, that by doing so he has achieved the essence of what he wanted to do—not perhaps by the route he now suggests, but he has achieved it in substance. His concern and that of other noble Lords arose out of the Trooper Williams case. I do not propose to rehearse the facts again. I am a little tempted to do so by one or two remarks with which I do not agree, but I am going to issue a very firm ordinance of self-denial. We have rehearsed the issue in this House fully. There are some differences of opinion, but what matters now is the future and not the past.
The noble Lord, Lord Campbell of Alloway, has rightly acknowledged that the particular circumstances that gave rise to the Trooper Williams case will not arise again because of the provision in the Bill, if passed, under which a commanding officer will not be able to stop the service prosecuting authority ever considering whether a case should be proceeded with in the military system. That is what happened. The only way that a case could then be considered by a prosecutor was in the civilian system, and that is what took place. The Bill will remove the power of the commanding officer to dismiss a charge in those circumstances.
As the noble Lord, Lord Campbell of Alloway, said, there are further changes which are highly relevant. When the Director of Service Prosecutions considers a case and decides not to proceed with it—this is under Clause 126—he will have the power to give a direction which would, in effect, bar any further service or civilian prosecution for the same offence.
In addition, where the service police investigate allegations of serious offences and decide that there is sufficient evidence to charge, they will have to refer the case to the Director of Service Prosecutions. As an amendment tabled by the Government makes clear, the service police must, as soon as reasonably practicable, notify the commanding officer of such a referral. It is the intention to provide in regulations made under the Bill rules that enable the commanding officer to put any relevant factors before the service police and the Director of Service Prosecutions before the service police refer the case to the director and before the director decides whether to charge.
I believe that those amendments as a package meet the concerns highlighted by the noble Lord, Lord Campbell, and by other noble and noble and gallant Lords. Therefore, I venture to suggest that his concerns have been listened to and have substantially been addressed.
I have to say to the noble Lord, Lord Kingsland, that I do not deal with this amendment on the basis that he has put forward—that is, that the possibility of a case being in the civilian system will not arise again. That simply is not right. As the noble Lord, Lord Thomas of Gresford, noted and as I have said before, it is a commonplace that in cases which arise out of conduct in this country, there are prosecutions in the civilian court. So far as concerns action overseas, active service and operational circumstances, I have said—it has been said by others—that I envisage that a civilian prosecution will take place only in exceptional circumstances. I have not said, and I do not believe that the noble Lord believes that he said either, that such a case will never be brought within the civilian system.
I believe that the amendment is unnecessary because we have met the concerns. I want to come back to one point but not for the reasons given by the noble Lord, Lord Kingsland. It would not be right for me, standing on my feet as the authority ultimately responsible for making certain decisions, to stand by silently and accede by silence to what the noble Lord, Lord Kingsland, said.
That was not my understanding of what the Minister indicated at Second Reading, and perhaps between now and Report we can look again at what was said on that occasion. If I have misunderstood it, then plainly what I said in my first intervention needs to be revised.
The noble and learned Lord the Attorney-General raises an important point. This afternoon we have heard consistently from the Government that the whole purpose of the Bill is to provide a completely comprehensive system for the Armed Forces. The noble and learned Lord is looking extremely impatient—
I am most grateful. This afternoon, the Minister has been at pains to emphasise—particularly in the context of the attempt by the noble Lord, Lord Thomas of Gresford, to remove Clauses 42 to 49 from the Bill—that the intention is to provide a completely comprehensive, self-contained system.
The noble and learned Lord the Attorney-General was suggesting that there might be circumstances where this watertight approach is not as watertight as we all thought. The fundamental issue here is whether that means that the noble and learned Lord the Attorney-General believes that he has the constitutional power to remove a case from the military procedure at some stage after it has started and switch it to the civilian procedure. I entirely accept that extra-territorial offences such as murder and manslaughter could be started in the civilian courts. That is plain. But the situation which has concerned me, and which I thought the noble Lord, Lord Drayson, had covered at Second Reading, is one where proceedings are begun by the Director of Service Prosecutions and are then taken out of the services loop by, I suppose, the DPP under the superintendence of the Attorney-General and switched into the civilian loop. I do not believe that the noble and learned Lord the Attorney-General has the constitutional power to do that, and I want to be reassured that it is not his intention in future to so act.
Perhaps I may intervene because I am involved in this. First, my noble friend Lord Kingsland got it totally wrong. He knows why I think he is wrong and I shall tell the Committee in a moment. The noble and learned Lord, Lord Goldsmith, has got it totally right. It was an outrage to be told that this was wholly unnecessary. It was not wholly unnecessary. Something has come of it and we have gone some way.
I want to add one point. My noble friend Lord Kingsland asked two leading questions of the noble Lord, Lord Drayson. They were loaded. You could see that they were loaded with the art of a really fine practitioner—my noble friend is expert at it. The Minister fell into the trap and answered “yes” to them both. So then my noble friend Lord Kingsland turned round to me and said, “Well, there it is. There is no object; this is just a nonsense”. I just smiled because I thought, “What else can you do?”. That is my side of it and I am very pleased to have been vindicated publicly.
I do like this place.
I think that I have been quite clear with the noble Lord, Lord Kingsland, on what I believe is the position. I shall say one more thing. The decision on whether prosecutions take place is not a matter for the Government. Ultimately it is a decision for the Attorney-General as the senior civilian authority. If the noble Lord, Lord Kingsland, of whose forensics I am very well aware, has somehow trapped my noble friend, that will not prevent the responsibilities that I have constitutionally being exercised. I am going to move on.
Why do I not accept the route that the noble Lord, Lord Campbell, has proposed? It is for the reasons given by the noble and learned Lord, Lord Mayhew, and the first reason but not the second reason given by the noble Lord, Lord Kingsland. The background is that there are many hundreds of cases each year in which the UK military and civilian police prosecuting authorities decide whether offences committed by UK servicemen in this country should be tried in military or civilian courts. In those cases, as the noble Lord, Lord Thomas, said, they decide without any apparent difficulty guidance set out in Queen's regulations. The noble Lord, Lord Thomas, asked whose decision was final. I believe that that was clearly stated by my noble friend Lord Drayson when he correctly stated on Amendment No. 59A that ultimately the civilian authorities have the final say. If there is a disagreement between the prosecuting authorities, ultimately that would mean as the House of Lords has said a decision by the Attorney-General as the senior civilian authority. So, ultimately the matter is for the Attorney-General. So, it is too, in overseas cases where the United Kingdom civilian courts and the courts martial have concurrent jurisdiction. That is—I disagree with the noble Lord, Lord Kingsland, as he knows—under the constitutional responsibility for the enforcement of the law recognised in the case of Bastow by the House of Lords and as part of my superintendence as a prosecuting authority. It is not in the Bill; it is part of our constitutional arrangements.
Judges have a crucial role in safeguarding against any abuse of the court process. You can make an application for an abuse to stop a case on the grounds of abuse. Equally you can apply to a court which is trying a case to say that there is no evidence to support it and no case to answer. Both of those applications were made to Mrs Justice Hallett. The first problem in the amendment of the noble Lord, Lord Campbell, is that it asks the judge to do what I would respectfully say is making a prosecuting decision. He is asked to consider two questions: is there a realistic prospect of conviction; and is it in the public interest to go to a particular place? That is exactly the decision that the prosecutor has to make. Not only does that undermine the constitutional position of the Attorney-General, as the noble and learned Lord, Lord Mayhew, said, it also undermines the constitutional position of the judges. Some of the cases are set out in a letter sent by the noble Lord, Lord Drayson, to the noble Lord, Lord Campbell.
I shall read only one reference by Lord Dilhorne, a very distinguished judge and former Law Officer and Lord Chancellor, who said:
“A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval”.
What would happen if a serviceman was being prosecuted in the civilian court because a judge said it was right to do so? Is there not a risk that the jury will think, “Well the judge thinks this is a good case”. Would not the serviceman in those circumstances think that he was at risk of not getting a fair trial? So I have that objection as well.
I come to the one point where I recognise the point made by the noble Lord, Lord Campbell, and others. Looking at the future, does it make sense that in circumstances where a serviceman may be prosecuted in a civilian court and might expect if he is to be prosecuted that it will only be at court martial, he should have some notice of that and an opportunity to make some representations? I see the force of that. I would not want to take it too far for several reasons. I would not want to see great delay, formality or satellite litigation because delay of that sort only delays it from the point of view of the serviceman. Sometimes one would not know who all the potential servicemen are. It happens sometimes that there is a case that once it starts to be investigated by the civilian or military authorities, other soldiers or servicemen come into the picture. I would not want to stop and start, but I am happy to assure the House that if cases in the future are brought to me in the circumstances referred to in the noble Lord’s amendment—active service operational circumstances overseas and the possibility of a civilian proceeding—I will seek to ensure that the views of the serviceman or servicemen who are known at that stage as defendants are made known to me. They will have the opportunity of making written representations as to the venue. I do not expect it to take long. I do not expect it to result in complicated legal proceedings. But I hope that the noble Lord will see that by that assurance I have given to this House, it meets the final part of what the noble Lord has been seeking to obtain.
The noble Lord tabled this probing amendment to obtain assurances for the future. I hope that he will take the view that he has succeeded substantially, though not perhaps by the route that he had in mind, and that he will be able to withdraw the amendment happily.
Will the noble and learned Lord confirm that that applies in a different circumstance? Let us suppose that the civil authorities, who the noble and learned Lord said will take the initial decision, decide that it should be a court martial, will the potential defendant have the opportunity of making representations to the Attorney-General that it should be a civil trial?
I understood the noble and learned Lord to say that under the present arrangements where there is dual jurisdiction it is left to the chief of police to decide whether to takethe matter on a civil basis or whether to refer it to the military authorities for a court martial. Those are the circumstances that I am thinking about. Let us suppose that the chief of police says, “This murder charge, although it was committed in the United Kingdom, involves a victim who was a serviceman and therefore it should be by court martial”. Will the potential defendant have the opportunity of making representations to the Attorney-General that it should be a civil trial?
I was not dealing with that with that case at all and I am not giving any assurances about that. We have well worked-out arrangements where events take place in this country through Queen’s regulations and through arrangements between police and military authorities. I was dealing with the case raised by the noble Lord, Lord Campbell, about a person who is on active service in operational circumstances overseas where there is concurrent jurisdiction. In those circumstances, I understand that he says that he would expect to be dealt with in a military proceeding in a military procedure. I am saying that if a question arises that it should be civilian, within the limits I have identified, I will seek to ensure that he has an opportunity to make written representations as to venue before a decision is made to take it to the civilian process.
Before the Minster sits down, he mentioned Clause 126, which is headed:
“Directions by the DSP barring further proceedings”.
Given the Attorney-General’s superintendence responsibilities, is there a possibility that an Attorney-General could overturn that decision by the director of service prosecutions to bar further proceedings?
As I understand the way in which the Bill operates, if a director makes such a direction, it has the effect set out in the Bill. Therefore, if he has made the direction it would have the effect of—I am afraid I cannot remember the relevant clause. The effect is that it counts as an acquittal and the usual rules—
I am obliged to the noble Earl. It counts as an acquittal and the rules for what we call “autre fois acquit” would apply. Having said that, I do not rule out that the director of service prosecutions might consult the Attorney-General of the day as to whether he should make the direction. As long as that is clear, I can answer the question in the way that I have done.
I thank the noble and learned Lord the Attorney-General for his assurance. He is right—it gives me the essence of what I am asking. I hope it alleviates the concern of noble Lords. I dissociate myself from the extension of the undertaking sought by the noble Lord, Lord Thomas of Gresford. That is not what I am seeking.
The whole object of this having been achieved with a reasonable sense of amity, I certainly shall not come back to retable this, and I shall not be having any further discussions with my noble friend Lord Kingsland about it. I hope, however, to have some discussions with the noble and learned Lord the Attorney-General and the noble Lord, Lord Drayson, if there is a way that one can help. I am very grateful to them both. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 118 to 121 agreed to.