asked Her Majesty’s Government:

What is their response to recent developments in Sudan, with particular reference to Darfur.

My Lords, we are extremely concerned about the situation in Darfur. We are making it clear to the Sudanese Government and the armed rebel groups that they must stop fighting immediately. The Government must also accept a UN force for Darfur and the bolstering of the African Union force until the UN can arrive and they must restart the political process with the non-signatories to the Darfur peace agreement. We are urging international partners to take the same line.

My Lords, I thank the Minister for that reply. Given the continuing, horrifying escalation of death and destruction, with 300,000 to 400,000 people now dead and 90 per cent of villages in Darfur destroyed by the National Islamic Front regime’s genocidal policy, does he agree that the time has now come for the consideration of serious measures, such as targeted sanctions or the refusal of visas to the regime’s representatives, instead of, as at the present moment, giving invitations to the chairman of the Khartoum Stock Exchange, who is in London at the invitation of the Foreign Office? How long are this Government going to continue to do business with a regime that kills while it talks?

My Lords, there are already United Nations decisions on sanctions and there is no doubt, as matters stand, that there will be a need for further consideration of further sanctions against a wider group of people. The other critical issue has been to establish a viable African Union force to keep the peace, as far as that is possible, across Darfur. On20 September, that process looked impossible, but it had been achieved, at least in outline, by the end of that week. That force has to be capable of doing the job of protecting the people of Darfur until the United Nations can take over the responsibility, as it must.

My Lords, the Minister spoke about making the situation clear to both sides, but is it not obvious, and did not the comments of the noble Baroness, Lady Cox, make it even clearer, that this is not a level killing field with two sides locked in deadly combat and that the Government in Khartoum do not care anything for their citizens, are bent upon encouraging the most appalling atrocities and are continuing to do so in defiance of world opinion? Is it not indeed time that very much firmer sanctions were mobilised against the Khartoum Government and more were pressed for in the United Nations? What will happen when the African Union mission ends, which is any day now in September and October, when the UN mission will come, at the earliest, in January? How will the killing going on in the mean time be stopped unless we have a really firm grip on the Khartoum Government of the kind that is so far lacking?

My Lords, for the sake of clarity, the agreement that was reached with the African Union in New York, to which I was a party, means that its mandate has been extended until the end of December with a significant improvement in United Nations assistance. I can say from overnight discussions that there has been agreement with, at least, President al-Bashir about what the United Nations’ additional assistance should be. That is a small step forward.

I do not dissent at all from the view that there are the most serious crimes and breaches of the agreements that the Government of Sudan voluntarily entered into, but it is also true that rebel groups are killing widely. This is a war between a number of parties, and our task must be to get them all to sign the peace agreement, from which many absented themselves.

My Lords, do the Government agree with the analysis of the International Commission on Intervention and State Sovereignty in 2001 that the primary responsibility for protecting human rights lies with the Government concerned, that if the Government fail to discharge that responsibility it passes to the Security Council and that if the Security Council fails adequately to act, the question arises of whether the greater harm lies in the damage to international order of bypassing the Security Council or in the slaughter of human beings while the international community looks on? If the third of those situations arises, does my noble friend agree with Mr Kofi Annan that not even the principle of national sovereignty can protect crimes against humanity?

My Lords, in the meeting that preceded the United Nations General Assembly last year, the world community agreed that a responsibility to protect should be part of the operating code of the United Nations. That means that the first responsibility is with the Government concerned and then it passes, irrespective of sovereignty, to the international community. In Security Council Resolution 1706, drafted by the United Kingdom, that is explicitly written into the terms of the decision by the Security Council, taken without a vote against and with three abstentions. In the final analysis, the Security Council—and the United Nations—will be tested by whether it takes that responsibility seriously with the full implications that it bears.

My Lords, I am sure the Minister will have seen President Obasanjo’s reference to impending genocide and his offer of additional Nigerian troops for the African Union force. In view of the implacable refusal by Khartoum to allow the United Nations to take over the operation, will the international community do better to concentrate on AMIS Plus, with the possibility that the UN might lend military units to AMIS, and more robust rules of engagement so that it can adequately protect the civilian population?

My Lords, our position is that the United Nations needs to take over this operation, but the fact is that there would be an interregnum—and there would have been one from the end of December through to 1 January if AMIS had not been prepared to step in with additional assistance, as I said a few moments ago—from the United Nations. Bolstering that force should be done in a way that is compatible with a transition to UN. I believe that the international community has an obligation to put all pressure on the Government of Sudan to agree to a UN force, and all pressure on the other rebel groups to sign the peace treaty, which they could have signed several months ago and spared many thousands of lives.

My Lords, is the Minister aware that there appears to be a concerted campaign by the Khartoum Government to muzzle the freedom of the press in northern Sudan? Does he agree that this is a violation of the terms of the interim constitution and that it also seriously undermines any attempt at democratic transformation?

My Lords, I completely agree. It is one of a catalogue of areas in which the Government in Khartoum disregard any form of international pressure. They are in breach of the peace agreement they signed just a couple of months ago in every military action that they have embarked on in these past few months.

My Lords, can we be sure—

My Lords, I am sorry. We are well into the ninth minute now.

asked Her Majesty’s Government:

Whether they expect to publish a report on the lessons learnt from operations in Iraq since 1 May 2003, and if so when.

My Lords, the Government have already published two reports on lessons from Iraq. These were Operations in Iraq: First Reflections, published in July 2003, and Operations in Iraq: Lessons for the Future, published in December 2003. Internal analysis continues, but the Government do not currently have any plans to publish further reports on this matter.

My Lords, I trust that the Minister has read the Wall Street Journal this morning, which reports that a new US medical academic survey estimates that there have been around 600,000 Iraqi deaths from violence since March 2003. We have had no updated lessons-learnt report in the last three years, as he has just told us, but we need to learn the lessons if we are not to make the same failures in the future. When will there be an update?

My Lords, I have not read the Wall Street Journal report to which the noble Lord refers; I will read it when I return to the department. As I said in my original Answer, there is an ongoing process of analysis within the Ministry of Defence. There are no current plans to publish the outcomes of that analysis. However, if that situation changes, I will inform the House.

My Lords, can the Minister confirm that lessons learnt from the operations have been applied in practice?

Yes I can, my Lords, and I will give some examples from both an operational and an equipment standpoint. What we are doing operationally today in Baghdad and Basra—Operation Sinbad—is a neighbourhood-by-neighbourhood clearance of the sectarian killers, with reconstruction on a neighbourhood basis, which is having real success. The chair of the Basra security council, Hammadi, has been out on the streets with the local press, pointing out what has been done to develop local schools. On equipment—just to give one example—improvements in the accuracy of our munitions to reduce collateral damage and investment that we have put into communications have had a big impact on the effectiveness of our operations, which has been reflected on the ground.

My Lords, I am not sure that the Minister can answer this, but I shall ask it nevertheless. Is it not common sense and common knowledge to most of us now that Iraq will go down in history as an example of how to win a war and lose the subsequent peace? That happened because when Colin Powell was talking about the post-conflict situation, he was increasingly marginalised and power went to Donald Rumsfeld, with the result that there was no post-conflict plan in operation, which left us very exposed in the south of Iraq. We have all paid a very high price for that. That is the lesson, and it is a very important one, not least because there will be other times when we have to intervene, as the previous Question exemplified.

My Lords, my noble friend makes a very good point. Those points have been reflected in the lessons-learnt documents published by the department. It is fair to say that we are very concerned about the situation that we face in Iraq today. Concern is mainly focused on the difficulties that we have in the cities, primarily Baghdad but also Basra. It is correct to say that we had a successful operational campaign in March 2003, which we expected more rapidly to become a peacekeeping operation; we did not expect to have an extended counter-insurgency operation such as we have been faced with. However, we are responding to that from the lessons that we have learnt on the ground and we are seeing progress in the reconstruction effort. A million people in Basra now have electricity and water 24 hours a day. That was not the case a year ago, or five years ago.

My Lords, but do the Government, the United States or anyone yet have any evidence of a clear exit strategy from one of the biggest tragedies that mankind has faced for many long years?

My Lords, we absolutely have a clear exit strategy. Our strategy is to support the Iraqi security operations—the police and the army—in creating an environment where governance and reconstruction can take place. We have seen that that has worked. This summer, two provinces have been successfully handed over to the Iraqi security forces. We hope that the situation will allow us to hand over a third province. However, the key is the progress that we are able to make in Basra and Baghdad. That is where the main challenge is and that is where we are focusing our attention, but our strategy has not changed. We are following a clear process that is shown to work.

My Lords—

My Lords, is not the lesson of the Iraq war that when Her Majesty's Government differ with the United States on an important issue of policy, they should press their case more vigorously than they did this time?

My Lords, Her Majesty's Government's policy on Iraq is clearly to work with our coalition partners to support the development of the country as a democratic state. We have seen how the Iraqi people have responded to that in two general elections and the establishment of a constitution. There is no doubt that the Iraqi people want the country to progress but, as has been said, there is tremendous sectarian violence between the Sunnis and the Shia. We have to stick with this. We have seen progress in a number of provinces. The main area of difficulty is within the cities. We have a tactical plan which, in the early days, is working. We need to stick with that through the coming months.

My Lords, does my noble friend agree that any publication about any shortcomings must be consistent with the safety of our troops on the ground at the moment? The idea of publishing something that feeds a media frenzy rather than serving the real purposes of our troops serving on the ground in Iraq would, for many of us, be a tragedy.

My Lords, I am grateful to my noble friend. She is absolutely right; there is obviously a real limitation to the detail into which we can go. Having spoken to operational commanders and troops on the ground, I must say that they find it difficult that the emphasis is on the difficulties and that no real recognition is given to the progress that has been made. The feeling, which is shared by people in DfID, is that the progress that has been made on the reconstruction effort in very difficult circumstances is not properly reflected in the discussion.

asked Her Majesty’s Government:

What representations they have made to the Government of Somalia concerning the possible deployment of peacekeeping forces by the African Union or a coalition of African states, and what is their assessment of the legality of such a force.

My Lords, the African Union has approved a proposal by members of the Intergovernmental Authority on Development—IGAD—to deploy a peace-support mission to Somalia. On 13 July 2006, the UN Security Council confirmed its willingness to consider whether a peace-support mission would contribute to peace and stability in Somalia on receipt of a detailed plan from IGAD. We will participate actively in this consideration. I have had discussions with the transitional federal government representatives on this subject and the subject of trying to sustain current peace negotiations.

My Lords, has not the situation changed since the Islamic Courts Union declared a jihad against any foreign forces entering Somalian territory, including the deployment of IGADSOM, as has been decided by the African Union Peace and Security Council? Does the Minister consider there to be any scope for a discussion between the AU and the Islamic Courts Union on a variation of the proposal that would be acceptable to them, either in terms of the states that are providing forces or in the terms of reference of the mission? Will it be explained clearly to the Islamic Courts Union that if it does not agree to such a mission, the likelihood is that President Abdullahi Yusuf will call on the Ethiopian forces to help to protect him?

My Lords, the peace discussions in Khartoum are about to enter a third phase, and there have also been useful contacts in the past couple of weeks in Nairobi. The aim of the peace discussions is to provide the conditions under which a peace-support operation would work successfully with the agreement of all parties in Somalia. It remains quite clear to me that if the Islamic Courts Union cannot accept peace proposals, the Security Council will have to consider very urgently the decisions taken by the front-line states on security in the region.

My Lords, are the Americans supporting the warlords in Somalia? If so, will Her Majesty’s Government make representations to them to stop? The trouble in Somalia was caused by gangs of warlords shooting people up and engaging in total mayhem. Even a strongly Muslim Government would be more peaceful and more preferable to what has gone before.

My Lords, I think the noble Earl is referring to an allegation some while ago that the United States had supported several warlords and their armed militias. Whether or not people think that this is the best outcome for Somalia, the move of the Islamic Courts Union against the warlords has more or less taken them out of any part of the equation, as matters stand. The problems now lie principally between the transitional federal Government of President Yusuf—the only Government who are supported by the United Nations as the legitimate Government—and the Islamic Courts Union.

My Lords, what is the Minister’s assessment of the Islamic Courts Union and its medium-term aims? It has been suggested that it wants to create an Islamic state, and that it has links with various fundamentalist extremist groups, including al-Qaeda. Is that a danger? Are we seeing the emergence of yet another failed state and source of terrorism, or could the Islamic Courts Union provide the stability that my noble friends have suggested?

My Lords, I do not think that the Islamic Courts Union is a homogenous body in any sense. It contains some elements which are moderate and plainly disposed towards the peace negotiations that I have described. It contains some elements—they may be in the ascendancy at the moment—which I would describe as being on the end of the politics of al-Qaeda and very dangerous. The reality is that we must make sure that moderate parties on both sides—the transitional Government and the Islamic Courts Union—engage in discussions and try to get to a new balance between the different forces. It would be of no benefit to this country to see the kind of takeover of Somalia which would create a further serious international security problem.

My Lords, is the mandate of the African Union in such a situation solely to observe, as it has been in Darfur where it has not been able to protect the people at all? Is it in any way likely that either it or any subsequent force would have any power of intervention? Is it only to observe and report what we are constantly hearing?

My Lords, there are two important questions in the noble Baroness’s supplementary question. First, the precise purpose of an IGAD force, were it to be introduced in Somalia, would have to be agreed with the Security Council. Its mandate could include anything that the Security Council deemed appropriate. If it is introduced, I would hope that it would be sufficiently robust to do the job properly. On the second question, which requires some comment, the mandate that the AMIS force has in Darfur could and should have been used far more extensively than just for observation. At the beginning it was.

asked Her Majesty’s Government:

What is the impact of the sale of influenza vaccinations in supermarket pharmacies on the availability of such vaccinations to vulnerable groups.

My Lords, the distribution of influenza vaccine started in September. By the end of November, 13 million doses will have been delivered to GPs. This represents nearly 90 per cent of the total available vaccine. A further 2 million doses will be delivered by the end of December, making more than 1 million more doses available than were used last year. The UK Vaccine Industry Group has informed us that 97 per cent of influenza vaccine is provided for the NHS with a maximum of 3 per cent going to private sales, a figure that has remained stable over recent years.

My Lords, I thank my noble friend for that illuminating Answer. But given that supermarket pharmacies, certainly in Cheshire, are selling flu jabs to the general public for £15, can he assure us that GPs will receive these important vaccines? I declare an interest as my local GP has not yet received them. Can the Minister again state that the Government’s priority is that those in vulnerable groups should be treated first?

My Lords, of course I can. The Government have already exceeded the 75 per cent vaccination of high-risk groups which the World Health Organisation recommended for 2010—they did it last year, and we are continuing along that path. It is for GPs to order their vaccines from the supplier; they do not do it through the Department of Health. As I said, a maximum of 3 per cent is available for private sales, which is meant to ensure that high-risk groups for vaccines go to their GPs for vaccination.

My Lords, why, every year at this time, do we seem to have a Question or two or three on this subject? Why does there seem to be, for GPs in their practices, always a shortage at this time of year? This is not the first time that we have heard that there has been private supply available when some NHS practices have not had it. Perhaps the Minister can explain why we cannot get vaccines to GPs faster.

My Lords, there was a problem in the manufacture of vaccines this year where the reagents used did not produce vaccine fast enough. That was a manufacturing problem and nothing to do with the Government or with NHS management. It was an international problem affecting not just this country but all countries. That is the explanation for the slow delivery this year. I think that what has happened is that a rather excitable story appeared in the Daily Express, which was fully briefed on this, about private sales of flu vaccine. They are running at the same level this year as they have in previous years.

My Lords, the present influenza vaccine now being distributed has no possibility of protecting against a potential bird flu epidemic. While the prospect of a pandemic appears to have receded, can the Minister tell us what progress has been made in producing a vaccine against the H5N1 influenza virus strain?

My Lords, the research industry continues to work in this area. In order to provide an effective vaccine against a pandemic flu, you have to know what the strain is in the first place. However, the Government have put in place a strong pandemic flu plan, including stockpiling antivirals should that unfortunate event actually occur.

My Lords, can the noble Lord tell us how much doctors pay for the vaccine?

My Lords, that is a matter between them and the manufacturers.

My Lords, given the coverage we have seen in the media this morning of supermarkets around the country providing vaccine, and since my noble friend has said that the vaccine is fully available in those supermarkets, why do not the doctors buy the jabs from the supermarkets?

My Lords, let me correct my noble friend. I did not say that the vaccine is available in all supermarkets. I said that 3 per cent of the total supply for this winter might be available in supermarkets and other private pharmacies for purchase. It is still a free country and if people wish to spend their money on that 3 per cent of the vaccine, provided they are not in the high-risk groups, that is down to them.

My Lords, notwithstanding the fact that what price is paid clearly is a matter between GPs and the manufacturers, what is the answer to my noble friend’s question?

My Lords, I think she needs to ask the GPs.

My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read a third time.—(Lord Falconer of Thoroton.)

My Lords, I wonder whether I could ask the noble and learned Lord a question; it is one that I have asked him once before and he said he would be kind enough to consider it.

In the good old days, as one might call them, any business tabled in the name of the then Lord Chancellor was always put down under “The Lord Chancellor”. Were that still to apply, this Motion would be under the name of the Lord Chancellor. In fact, it is under the name of the noble and learned Lord, Lord Falconer of Thoroton. That is a great name, but the name “The Lord Chancellor” is an even better one. I wonder why it is that these things have slipped. When I raised the issue before, the noble and learned Lord said that he would consider it. I suppose he probably gave it 30 seconds of his consideration because obviously it has not made much difference. Would he be kind enough to say that he did consider it and that, owing to an oversight, it has been put down in the name “Lord Falconer of Thoroton” when it should be in the name of the Lord Chancellor?

My Lords, I did consider it, and indeed the noble Earl wrote me a letter to which I have had the discourtesy not to reply. But because he raised the issue once before and because he wrote the letter, I have given it immense thought. I considered whether the Motion should be in name of the Lord Chancellor, and concluded that it should. It is a Law Commission-inspired Bill and it is something that I do as Lord Chancellor. Therefore, ever after—as a result of the noble Earl’s questions and unreplied correspondence, and subject of course to the Table—such Motions will be in the name of the Lord Chancellor. I apologise that it was not done before.

My Lords, I am deeply grateful to the noble and learned Lord, but I am not quite sure whether it takes us any further. This is a Parliamentary Costs Bill in the name of the noble and learned Lord, Lord Falconer of Thoroton, but it ought to be in the name of the Lord Chancellor.

My Lords, the reason why I say “ever after” is that there will never be, I fear, another reference to the Parliamentary Costs Bill. This is a consolidating measure. What I am referring to is all the other consolidating measures that will come before us. I am going to make the same error again in about 45 seconds when we consider the National Health Service consolidation Bill. But there will, I hope, be other consolidation Bills, of which these two are examples. Because of the noble Earl’s letter and questions, they will ever after be in the name of the Lord Chancellor.

My Lords, I thank the noble and learned Lord even more than I did before. I had not really realised the impact of what he said. I am very grateful to him for having taken this matter into consideration and for having come to such a wise decision.

My Lords, no one can say that we are not a listening Government.

Bill read a third time, and passed, and sent to the Commons.

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]:

moved AmendmentNo. 31:

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.

The suggestion is that “disrespectful” must be defined. How on earth do you define it other than as “want of respect”? I do not see where we are going with this. Perhaps the Minister could deal with it.

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]:

moved Amendment No. 37:

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]:

moved Amendment No. 42:

It seems to me that the noble Lord, Lord Garden, is talking a lot of sense on both points.

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.

The noble Viscount, Lord Slim, makes a good point. Is there a definition of performance-enhancing drugs that could be put into the Bill?

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.

Yes, I absolutely agree.

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]:

moved Amendment No. 44:

I support the amendments in this group tabled by the noble Lord, Lord Astor of Hever. After the Deepcut review, this is an important amendment, and it has our full support.

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 shall exercise some judgment and shall not move Amendment No. 49.

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]:

moved Amendments Nos. 50 and 51:

moved Amendment No. 52:

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.

Has the Minister considered the use of the words, “or without lawful excuse”? That might meet the point raised by the noble Viscount, Lord Slim.

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.

This has been a very helpful debate which has raised a number of issues. I will go away and consider the matters, as has been suggested.

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]:

moved Amendments Nos. 54 and 55:

moved Amendments Nos. 56 to 57:

moved Amendment No. 58:

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.

This is a sensible amendment, which we support. As the noble Lord and my noble friend said, operations differ and our crews should not be penalised where there is an authorised need for low flying.

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.

I am grateful to the noble Lord for that clarification. He makes a very good point. I will go away and study exactly what he has said in the context of what really takes place and make sure that this clause as drafted properly reflects that.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 agreed to.

Clause 35 agreed to.

Clause 36 [Inaccurate certification]:

[Amendment No. 59 not moved.]

Clause 36 agreed to.

Clauses 37 to 41 agreed to.

Clause 42 [Criminal Conduct]:

moved AmendmentNo. 59A:

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.

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.

I shall take further advice on those points and will write to the noble Lord with an answer.

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.

moved AmendmentNo. 60:

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”.

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:

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.

I am grateful to the noble Lord for giving way. My only point is that subsection (7) states:

“It shall be an absolute defence to any charge”,

that the conduct falls within these rules. I wonder how proportionality works under those circumstances.

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.

Perhaps I may urge the Minister to make available privately a viewing of the rules of engagement. If he did that, the Committee would get a better understanding of what he has been saying.

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.

Will the framework safeguard honest mistake? This is a relevant consideration in liability for murder or anything else.

On the point made by the noble Lord, Lord Campbell, the answer is yes.

The Minister cannot be faulted on the briefings he gives us. I suggest that he privately lets us see an out-of-date set of rules of engagement. In that way, noble Lords would have a much better understanding of what the Minister is saying.

I am most grateful. That is an excellent idea; let’s do it.

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.

had given notice of his intention to move Amendment No. 63:

moved Amendment No. 64:

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]:

moved Amendment No. 69:

moved Amendment No. 70:

I shall not speak to AmendmentNo. 71.

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.

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]:

moved Amendment No. 76:

I shall not speak to AmendmentNo. 77.

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"]:

moved Amendments Nos. 87 and 88:

moved Amendment No. 89:

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 the guarantee.

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.

moved Amendment No. 90A:

moved AmendmentNo. 91:

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.