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Lords Chamber

Volume 685: debated on Thursday 12 October 2006

House of Lords

Thursday, 12 October 2006.

The House met at eleven of the clock: the LORD SPEAKER on the Woolsack.

Prayers—Read by the Lord Bishop of Coventry.


Sir Michael Hastings Jay, Knight Grand Cross of St Michael and St George, having been created Baron Jay of Ewelme, of Ewelme in the County of Oxfordshire, for life—Was, in his robes, introduced between the Baroness Jay of Paddington and the Baroness Bottomley of Nettlestone.

Armed Forces: Cluster Bombs

Lord Dubs asked Her Majesty’s Government:

Whether they will seek an international ban on the use of cluster bombs similar to the ban on anti-personnel landmines.

My Lords, we have no such plans. Cluster munitions are legitimate weapons when used in accordance with international humanitarian law. They provide a unique capability against certain dispersed and wide-area military targets, for which other munitions are not necessarily practical. However, we remain committed to improving the reliability of all munitions to achieve lower failure rates and to leave less unexploded ordnance in order to minimise the humanitarian risk.

My Lords, I am grateful to my noble friend, although I find his Answer somewhat disappointing. Will he confirm that, in the Lebanon, as a result of the use of cluster bombs, there are hundreds of thousands of unexploded munitions, causing intolerable risks and dangers to the civilian population? Surely it is time to put cluster bombs in the same category as anti-personnel landmines and ban their use.

My Lords, as I said in my first Answer, we believe that there is a legitimate force-protection use of these weapons. As to the Lebanon, it is for the Government of Israel to respond to the allegations, but we expect them to investigate any well founded allegations of the misuse of munitions by their armed forces, just as we would in the United Kingdom. Our embassy in Tel Aviv is pursuing a further response to the allegations from the Israeli authorities, and we will continue to monitor the situation, studying carefully any authoritative reports that emerge.

My Lords, the noble Lord, Lord Drayson, replied to a Written Question from me on 19 June, explaining that the BL755 cluster bomb would be out of service by the end of the decade—that is, in three or four years’ time—and there are no plans for the Royal Air Force to replace it with cluster munitions. Given that, will the Minister talk to his colleague and see whether it would be possible to advance the date on which the bomb is taken out of service and use that as the launch pad for the UK to take the moral high ground over the banning of cluster munitions?

My Lords, there is no difficulty in talking between the departments: that is for sure. My understanding is that constant work is being done to improve the munitions so that there is not a failure rate. Although the failure rate is at the same level as that of other munitions, of course it has a greater impact due to the greater number of these munitions that are used because of their very character.

My Lords, does the Minister agree, despite the assurances that he has given about the care that will be taken in the use of these weapons, that as well as a debate about the legality there is a genuine debate to be had about the morality of the weapons? By whatever criteria we reach moral decisions, can there really be any moral justification for the production and deployment of such weapons, which are unable to distinguish between civilians and combatants and which in their effects are often indistinguishable from landmines? Where is the moral consistency in banning the one and legitimising the other?

My Lords, I truly understand the concern, but I do not think that it is true to say that they are the same as landmines. Landmines are left around so that when people or vehicles come into contact with them they explode and damage those people. These munitions are intended to explode on or slightly before impact. I have asked the question: do they make a legitimate difference? The answer that I am provided with is that they do. They offer a capability that means that, when troops are about to advance, there is a chance that the engagement that they will have with a wide-area enemy, particularly an armoured enemy, is not as fierce or protracted and that they do not suffer as many casualties.

I say this to the House, with the greatest respect to all those who have expressed the ethical concern: are the issues of the protection of our troops, which come up so frequently—quite rightly—in your Lordships’ House to be real considerations, or are we to abandon those considerations when it appears to be convenient?

My Lords, the sub-munitions that we are discussing are about the size of a child’s hand and look rather like a toy. We delivered ordnance containing 98,000 of these in the Basra area during our campaign to capture that city during the recent war. I understand that the Government claim a failure rate of 2 per cent; observers seeing the same elements deployed in the Lebanon have observed 10 per cent; and the United Nations claims a failure rate of 40 per cent. How effective and complete has been our effort to clear Basra of these lethal, child-killing weapons?

My Lords, I am not in a position to say how effective the operation to clear the weapons is, but I know that we attempt to deploy them in very strictly managed terms that comply fully with international humanitarian law obligations. For those reasons, I hope that we would try to clear up unexploded munitions on the same humanitarian basis.

I, too, have seen the range of figures. Of course, the figures that are produced on some occasions are when there is controlled use and it is possible to look at the immediate aftermath. Most of the conditions in Basra or the Lebanon are not such controlled conditions. In addition, there are different kinds of cluster bomb, and I understand that they have different failure rates. We must take all these matters into account in making sure that we protect our troops properly, as I have urged that we should, and comply fully with humanitarian requirements.

My Lords, is my noble friend aware that 30 sovereign states have stressed humanitarian concern about cluster bombs, largely because of the high failure rate which rather makes them perhaps more like landmines than my noble friend suggested? Belgium has banned them; Australia and Norway have declared a moratorium; and the German Government have decreed that they will stop using them. Does my noble friend think that they are all wrong?

My Lords, I am aware of the anxieties in several countries. All I can say is that a number of military authorities, including our own, believe that this is a legitimate force-protection method, if used in accordance with international humanitarian law. I am dubious about trying to double-guess the best advice given by military commanders on how to ensure that British troops are kept safe while pursuing their difficult tasks.

My Lords, are not cluster bombs and humanitarian law very nearly a contradiction in terms? The Minister has heard the widespread concern expressed this morning about the use of cluster bombs. As anti-personnel landmines have been banned, does he accept that he would have very strong support in this House in all parties if he were to pursue international arrangements for banning these horrific weapons which, as unexploded bombs, are continuing to kill children in Kosovo, Laos, Afghanistan, Iraq, Lebanon and many other places?

My Lords, I repeat that I share the anxiety that has been expressed in the House. I believe that the United Nations discussions on the protocols that cover these weapons are likely to be inclusive, involving both producers and users. If there are further reforms, that is the best way of making sure that there is an inclusive discussion that then incorporates and embraces everyone.

Afghanistan: NATO Forces

asked Her Majesty’s Government:

What progress has been made by the NATO force in Afghanistan.

My Lords, the NATO-led International Security Assistance Force—ISAF—has helped the Government of Afghanistan extend their authority beyond Kabul and into the provinces. This, in turn, has created the conditions under which Afghanistan has transformed from a pariah state into an emerging democracy with a legitimate government and parliament and enabled economic development, including improvements in education and healthcare provision.

My Lords, a couple of days ago my noble friend Lord Onslow drew attention to the fact that German planes in Afghanistan were not allowed to fly at night. The noble Lord said in reply to his point that those restrictions, of which there are many from different countries, were matters for each country separately. Does not that make matters much more difficult for commanders in the field who have to make those distinctions? Also, am I right in understanding that the response of member countries to the recent appeal of commanders for reinforcements has been at best lukewarm? Are these matters being considered by the NATO ministerial council so that they do not harm the effectiveness of NATO as a coherent organisation?

My Lords, the noble Lord is correct to say that the national caveats that some countries place on their forces create additional complexity that needs to be managed by NATO force commanders. That has always been the case in NATO operations; it is not a new situation. If we go back into history, this has always been an issue that NATO commanders have had to manage. However, there is no doubt that, if we can move to a position where those caveats become more harmonised, it will lead to a significant force-multiplier effect across NATO.

On the issue of support, NATO operates under a process whereby force commanders set out a list of their requirements for undertaking an operation and NATO countries then volunteer to provide resources to meet those requirements, and it leads to some capabilities not being provided. That is of real concern to us. As the noble Lord indicated, we are lobbying very hard at a number of levels to address that issue. As I said in the House 24 hours ago, it is important that in Her Majesty’s Government we recognise our responsibility as a NATO coalition partner to provide our forces with the equipment that they need to do their job.

My Lords, has the Minister read the history of foreign intervention in Afghanistan, and why does he think that history will not repeat itself on this occasion?

My Lords, I am not clear about which particular history of Afghanistan the noble Lord is referring to. However, I have studied Afghanistan’s history and think the important point is that the Soviet campaign and the campaigns of the British Empire were absolutely different in nature from what we are undertaking. We, with our coalition partners, are supporting the development of a democracy in Afghanistan, with the complete support of the people of Afghanistan as expressed in their democratic elections. That is completely different. That point was made clear to me recently when I met the defence Minister of Estonia, who mentioned the people of his country who were sent to Afghanistan as a form of punishment under the Soviet empire. That small country of a million people is making its contribution to the NATO force in Afghanistan because it absolutely understands the importance of this mission and why it is right to be there.

My Lords, I have twice this week in our discussions on Afghanistan raised the question of overlapping areas of responsibility. Ministers gave no answer in those debates, so perhaps I may ask the question again. Will the Minister explain how NATO can have authority over the whole of Afghanistan while 8,000 Operation Enduring Freedom US-led forces and their supporting air power continue a different agenda over the south and the east of the country?

My Lords, since the noble Lord has raised the question I have made sure that I fully understand the point. He raises a good question as the command structure in Afghanistan is changing. Let me make it crystal clear: we have an operation where ISAF, the NATO force under the command of a four-star general, General Richards, is responsible for the efforts to support the Afghan Government in reconstruction and the establishment of security. Running in parallel is Operation Enduring Freedom, which is under the United States and consists, as the noble Lord says, of 8,000 troops. The majority of those troops are engaged in training and developing the capability of the Afghan national army, which is the US lead. A small proportion of those troops are engaged in security operations to hunt terrorists. I am confident about the way in which the command structure operates. Last Friday I was speaking to General Richards, and he said he believed that this system would be robust. It is deconflicted and will work.

My Lords, does the Minister accept that the operation in Helmand province, as distinct from the improvements around Kabul, was entered into without sufficient forethought or consideration of the threat inevitable with the consistently turbulent history of that area, initially without enough troops on the ground, and with an ongoing shortage of helicopters and logistic backing to allow even those the requisite flying hours? Is it not clear that those shortages have been the result of cut-backs made over the past five years? Will the Minister, with all his expert knowledge of funding and procurement, tell us how soon—when the right honourable gentleman the Prime Minister airily promises everything that the troops want—these blockages and shortages can be corrected, provided and deployed in the operational area where they are so badly needed?

My Lords, I recognise the noble and gallant Lord’s experience in this area. Earlier this year we discussed the concerns that he and other experienced ex-chiefs had about this operation. I do not believe that the planning for the operation was done incorrectly. I was there at the time and saw the way in which it was done. I do not believe that there was a deficiency on the part of the Ministry of Defence. I believe that we have been up against a more determined and persistent enemy and, despite that, that we have inflicted a tactical defeat on it. It is not about cut-backs. As I have said, the budget is provided from the Treasury reserve.

In response to the noble and gallant Lord’s question about how soon, I can say that the next roulement will be in May of next year. It is my focus as the Minister for Defence Procurement to make absolutely sure that the force generation and equipment needed by May next year is provided.

Passports: Interviews

asked Her Majesty’s Government:

What progress has been made in the establishment of the 69 new passport and interview facilities and the facilities for applicants from remote areas.

My Lords, good progress has been made to establish the 69 passport interview offices: 21 interview offices have been delivered and provision of the remainder is on schedule; 454 staff have been recruited and a campaign to fill the remaining 151 positions has started. Positive and productive discussions have taken place with the Welsh Assembly and the Scottish Executive, and work has started to agree locations for the remote communities service. Acceptance testing of the IT system to support the new offices is under way.

My Lords, I am grateful to the Minister for that explanation. On 24 April this year the Minister answered me by saying that iris scans and fingerprinting would not be introduced until 2008. That is only 15 months away. Do the Government still intend to introduce those measures in 2008? How will remote areas be able to have information on fingerprinting and iris scans by webcam?

My Lords, the second question is clearly more detailed and technical, and I should prefer to write to the noble Lord about it. It is our intention to meet our deadline. It needs to be remembered that the EU deadline for the inclusion of finger scans in passports issued by member states is mid-2009, and we intend to meet that deadline.

My Lords, can the Minister assure the House that the new passport arrangements will not affect the business of post offices, particularly rural post offices?

My Lords, the current service operated by the Post Office will not be affected by the new arrangements.

My Lords, can the noble Lord say how many facilities there are in Scotland and where they are situated?

My Lords, I have a map of the new facilities in front of me. They are in Wick, Inverness, Aberdeen, Oban, Dundee, Stirling, Glasgow, Edinburgh, Berwick-upon-Tweed—that will no doubt serve both areas—Kilmarnock and Dumfries. If the noble Lady would like, I can provide her with even more detailed addresses.

My Lords, do the Government recognise that, desirable though more secure biometric passports are, it is perhaps even more important to improve the security of existing passports? What steps are in place to ensure that the passports of deceased persons are returned to the Passport Agency rather than being diverted to illegal use?

My Lords, the passport service takes fraud very seriously, which is why there is a plan to introduce biometric passports. The law governing the issuing and return of passports and abuses and breaches of the regulations is very clear, and a proper investigative facility is available to enforce the legislation as it exists. For good reasons, I would not want to go into more operational detail than that.

My Lords, the cost of a passport is already high and is likely to rise because of the biometrics that will be involved. Have the Government undertaken an impact assessment of the cost that will be involved, particularly for people who have to travel to an interview from a rural area?

My Lords, we have taken careful account of cost in establishing and building up the network of office locations. Our assessment is that fewer than 4,000 people in the more remote areas are likely to be more than an hour away from one of the new office locations. In most cases, people will be no further than 15 minutes or half an hour away from the new passport interview locations. We have taken careful account of the potential costs. We think that travel costs will probably be no more than roughly £3 or £4 for each individual which, when one considers the value of a passport, is a very small sum.

My Lords, how can we be assured that the IT systems that are being set up will not follow the same pattern as the systems provided for the Department of Health, the Department for Work and Pensions and the Home Office’s Immigration Service?

My Lords, it would be fair to say that over the past few years the passport service has had a very good track record on the use of modern technology. I am sure that I am not alone in admiring the speed with which passport applications are processed and the way in which the administration works. As I indicated in my initial response, we are making sure that the IT for the new interview offices is properly tested and rigorously worked through before the scheme is implemented next year.

My Lords, how will the service work in Scotland’s four island groups? The locations that the Minister listed in response to the question asked by my noble kinsman are all very definitely on the mainland. How much do the Government regard it as reasonable for islanders to have to pay to get to one of these offices, bearing it in mind that the use of the ferry may well involve an overnight stay?

My Lords, I could have read out another list of the remote locations in the highlands and islands of Scotland, but I shall not. I am more than happy to provide the noble Earl with a full explanation of how the remote locations will operate with webcams so that the remote interviews can take place. I think that the noble Earl will be fairly satisfied with the arrangements that we have come up with.

My Lords, my noble friend referred to a map as far as Scotland is concerned. Does he have one for Wales?

Water and Sewerage Services (Northern Ireland) Order 2006

Rates (Amendment) (Northern Ireland) Order 2006

Victims and Survivors (Northern Ireland) Order 2006

Electricity Consents (Planning) (Northern Ireland) Order 2006

My Lords, I beg to move the four Motions standing in my name on the Order Paper.

Moved, That the orders be referred to a Grand Committee.—(Baroness Amos.)

On Question, Motion agreed to.

Education and Inspections Bill

My Lords, I beg to move the Motion standing in the name of my noble friend Lord Adonis.

Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 6,

Schedule 1,

Clauses 7 to 17,

Schedule 2,

Clauses 18 to 30,

Schedule 3,

Clauses 31 to 36,

Schedule 4,

Clauses 37 to 54,

Schedule 5,

Clauses 55 to 67,

Schedule 6,

Clause 68,

Schedule 7,

Clauses 69 to 74,

Schedule 8,

Clause 75,

Schedule 9,

Clauses 76 to 82,

Schedule 10,

Clauses 83 to 108,

Schedule 11,

Clauses 109 to 111,

Schedule 12,

Clauses 112 to 145,

Schedule 13,

Clauses 146 to 152,

Schedule 14,

Clause 153,

Schedule 15,

Clauses 154 to 156,

Schedule 16,

Clauses 157 to 165,

Schedule 17,

Clauses 166 to 174,

Schedule 18,

Clauses 175 to 181.—(Lord Grocott.)

On Question, Motion agreed to.

Armed Forces Bill

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 162 [Court Martial rules]:

Page 78, line 3, at end insert-

“( ) Court Martial rules must make provision for the majority of the Court Martial panel to be drawn from the defendant's own service.”

The noble Lord said: There is nothing in the Bill to ensure that the majority of a court martial panel should be drawn from the defendant’s own service. I understand that there are differences of opinion on this issue. For example, the former Chief of the General Staff, General Sir Mike Jackson, said in evidence to the Select Committee on this Bill in another place that he would prefer to see a defendant tried by a panel drawn from the defendant’s own service. On the other hand, the Judge Advocate General stated a preference for mixed-composition panels. Officials in the MoD confirm that the default position for cases involving a single service offence is that a panel should be drawn from a defendant’s own service. They also indicate that the MoD will come forward with proposals about situations in which the panel is an appropriate arrangement. I would welcome an update from the Minister on how far these proposals have been developed.

This issue is of such importance that something must be in the Bill. In support of this, I quote the recommendation of the Select Committee of another place, which stated at paragraph 86 that,

“there should be a presumption for single service panels unless there is good reason for mixed panels”.

I beg to move.

I apologise for my intervention: I shall be brief. I have put down my name in support of my noble friend’s amendment because I was very impressed by the speech of the noble and gallant Lord, Lord Boyce. He explained the wholly disparate set-up in the Navy and the Army—I do not know about the Air Force. In the Navy, no one other than the commander, and perhaps the navigator on the bridge, sees the enemy. It is a wholly different discipline, and a wholly different life. I feel that in those circumstances, a majority of those who are accustomed to a wholly different system should sit as a majority of the court.

I strongly support my noble friend. I am unhappy about mixed panels, with the obvious exception of where there are defendants from more than one service. Although it is normal for all the services of the Armed Forces to work together, each service maintains a very different ethos. Personally, I would be unhappy to sit on a court martial dealing with the flying conduct of an RAF pilot; I would be out of my depth. Equally, I would not be happy for an RAF officer to deal with, say, a fighting incident among junior soldiers in the Army; RAF airmen are more intelligent and of much higher quality than some Army soldiers, and it would be very difficult for them to understand what it is like in an Army unit.

Members of the Committee will appreciate from the speeches I made yesterday that I am against this amendment. An opportunity is being lost completely to restructure the court martial system. We ought to have a system of justice that is concerned with convicting those who are guilty and protecting those who are innocent. Many of the reforms contained in this Bill—some of which are very good—are coloured by the past. Service traditions come into it, as does what happened 50 or 100 years ago. We in this House are used to dealing every year with a criminal justice Bill of one sort or another whereby the procedures and practices of the criminal courts are constantly reviewed and updated in the light of changing circumstances. However, every change that is extracted in the court martial system is, as I said yesterday at some length, the result of trips to the European Court at Strasbourg to point out on more than one occasion that the court martial system is not consonant with the covenant.

Instead of looking at the situation as a whole, as an entity, we are simply tweaking at the edges. One thinks of the enormous reforms of the civil courts of this country by the noble and learned Lord, Lord Woolf, and the revisions that have gone on under him. On the civil side, courts are being updated and the whole system is looked at. Here, we are back to service rivalry: it is impossible for officers in the RAF to understand a fight between two soldiers, or for Army officers to understand that flying at 100 feet is dangerous. That is ridiculous. The purpose of the Bill is to bring the services together into a whole. It ought to be possible to widen the panel by drawing members from all the services, rather than simply sticking to the service to which the particular defendant belongs. I am against this amendment.

I support this amendment. I comprehensively disagree with the assessment of the noble Lord, Lord Thomas of Gresford, that these boards should be mixed in order to update and keep ourselves modern. It is only sensible to follow his line blindly if one has no comprehension at all of the different environments in the land, air and naval forces.

However, my biggest worry concerns the defendant. I believe that a naval defendant in front of a court martial on a technical charge would be thoroughly dismayed if he found that it was manned by people who did not understand the environment in which he works. The same applies to defendants in the land and air services. This is a very important amendment. It would give the defendant confidence that he was being judged by people who understood the operating environment in which he worked. Courts martial are not the same as courts in the civil sector. Service environments are very different and we must have people on the panel who understand the circumstances in which a person is alleged to have done something wrong.

I, too, disagree with the noble Lord, Lord Thomas of Gresford. If a soldier, sailor or airman commits, or is accused of committing, a crime, whatever happens in civilian life the overall ethos of the military is that he expects to be judged and looked after by his peers. As the noble Lord, Lord Astor of Hever, has said, we should go for the single service court martial. But if for various technical or other operational reasons, a sailor or an airman is required on an Army court martial, surely we could agree—the noble Lord, Lord Thomas, might just agree to this—that we have a major proportion of members from the service concerned.

I hear the noble Lord, Lord Thomas, with great respect for his enormous experience, particularly of courts martial, but I get the impression—never mind inter-service rivalry—that he wants to civilianise the whole process. That would be disastrous. I hope that he understands what military ethos is. People in the military are not civilians. We want to look after ourselves and we should look after ourselves. I was very perturbed by some of the statements of the noble Lord, Lord Thomas. Even among government circles, there is a big push to civilianise much of the military. The one thing I hope that they will leave us with is our own ethos, discipline and law.

As we are in Committee, I hope that I may briefly intervene. I agree with everything that the noble Viscount has said. I find myself in the same difficulty: I am unable to agree with the approach of the noble Lord, Lord Thomas of Gresford. We return to the fundamental question that we discussed yesterday—are we to have a military law that is distinct and separate from the civil system? The backbone of this Bill and the answer to that is yes. It is what noble and gallant Lords and an odd noble and learned Lord said on Second Reading. We cannot get away from that. Which way are we going? The Bill goes the way of a distinct military system. Therefore, with the greatest sorrow, in a way, I have to disagree with the approach of the noble Lord, Lord Thomas of Gresford.

I support my noble friend Lord Thomas of Gresford, from my own military perspective. I am slightly surprised by the way the debate has gone. The amendment does not talk about civilianising; it talks about keeping the single service ethos of courts martial. Yet the whole Bill is about bringing the service discipline Acts together. There is not a lot of point in having the Bill if we are going to keep our own separate systems.

It is a spurious argument to say that an Army officer cannot judge a fast jet pilot on the panel of a court martial, or that an air force officer does not know the circumstances of soldiers who fight. Those of us who have taken charges of airmen who fight do not think there is necessarily that much difference. That does not matter. In any court martial system, even when it is single service, the members of the panel will be specialists in their own right and not necessarily specialists in what the accused has as their specialisation. We are asking for an informed panel who know about military operations. If we continue to stay in stove pipes by service, we will continue to differ in the way that we treat people between the three services. That does not seem sensible in a world where we are going forward into joint operations.

I strongly support the amendment. With respect, I disagree with the noble Lords, Lord Garden and Lord Thomas. The reason is that this is not just about service ethos. It is about having members of a court martial who have a true understanding of the differences that surely exist in the operational environment, and in training for it, between the three services. When I became Vice Chief of the Defence Staff, I found myself flying in fast combat aircraft and being sent on patrol in a nuclear submarine, which highlighted the enormously different environments in which each of the services has to operate. If a fair judgment is to be exercised by the members of the court martial, surely there must be enough of them who are aware of the service environment in which the person on trial is operating and in which he is being accused of some offence.

I have listened carefully to the contributions that have been made this morning across the Committee, and I have taken into account the very strong feelings that have been expressed. The noble Lord, Lord Campbell of Alloway, in his usual style, went to the heart of the matter when he summed it up, that this whole question revolves around one of the fundamental principles of the Bill, which aims to give a separate system of law for the Armed Forces.

It is also important for us to recognise that the Bill has been drafted with great care by the Ministry of Defence in a way that takes into account the pragmatic realities of the nature of operations today. I do not accept the point made by the noble Lord, Lord Thomas of Gresford, that this is a missed opportunity. To the contrary, we are producing in the Bill a modern system that meets the needs of the Armed Forces in so many ways. That is why the Bill is so important. We owe the military a Bill that is effective and meets the needs of our modern Armed Forces.

The service courts are compliant with the European Convention on Human Rights. The Bill includes important developments such as a single system of service law for the first time. There are many other changes that do not depend on legislation, including some of the changes that have been introduced by the Judge Advocate General. We have listened very carefully in the development of the Bill to the Armed Forces and to the ex-Chiefs, with their deep experience in this matter.

It is important that we recognise the need for a defendant generally to be tried by a court made up of members of the defendant’s own service and one which takes into account the particular nature of the differences between the services, as has eloquently been expressed in this debate. However, Amendment No. 132 is unnecessary because, in the joint environment that often occurs, there are situations which require flexibility.

In the evidence before the Select Committee, service chiefs expressed their support for the presumption that single service boards would be appointed; indeed, General Sir Mike Jackson indicated in his evidence that a defendant would generally be more comfortable if tried before members of his own service. That point was echoed by Mr James Mason, a civilian defence advocate, in his evidence. However, we also need to be able pragmatically to respond to a situation.

I have mentioned joint operations. We also need to take into account a situation whereby there may be two defendants on trial who come from different services or, perhaps, when a criminal offence has been committed overseas in no particular service context; those would be amenable to a mixed panel, as could a court martial of a civilian.

Building on what I said in Committee yesterday, I am happy to stress our presumption, but there may be a compelling and appropriate reason for lay members of the court to be appointed from different services. In the light of such cases, it would not be appropriate to agree to this amendment, which would require the members to come from a single service.

The Minister said that we should take a pragmatic view of the nature of operations. He talked also about the joint environment. I presume that he is not proposing that we should undertake courts martial in an operation theatre.

No. I am stressing the growing importance of joint operations—for example, the joint helicopter force operates very effectively. We need a system of service law that takes into account the reality that people undertaking joint helicopter training in the UK come from different services.

In view of the support of noble and gallant Lords, who, let’s face it, know far more about this matter than anyone else in the House, will the Minister reconsider and assure us that the spirit of the amendment should be observed?

I have listened carefully and will reflect further on this matter. I hope that when noble Lords read Hansard they will reflect on what I have said about the presumption towards a single service board but maintaining the ability to vary in appropriate circumstances. I will see whether I can do anything further to meet the valid concerns expressed.

I am grateful to the Minister for clarifying his presumption, which has been helpful, but perhaps I might lay down one myth, which the noble Lord, Lord Garden, has raised again: the assumption that “joint” means everyone is working together. I have said previously in this House that the vast majority of soldiers, sailors and airmen will go through their entire career without operating jointly: sailors will work at sea, airmen will work in airplanes or on airfields and Army men will work on land operations. We must not assume that, because we are moving in terms of joint operations, which are headquarter functions, the vast majority of our people will be in a joint environment. They will operate within their own single-service environments under a joint command.

In support of the Minister’s position, although I do not entirely agree with it, one can see the anomalies that can arise, as he pointed out. What if there was a fight between a member of the Air Force and a member of the Army? I come from a garrison town where, in my youth, the Royal Welch Fusiliers were always having a fight with the Pioneer Corps—so there can be cross-service issues. What do you do? Before whom are those two charged together? Do they appear in front of the RAF officers or the Army officers? Let us suppose that there are two youngsters on a base, one the child of an RAF service man and the other the child of a member of the Army. Which board would adjudicate in such a situation? If there is any validity to the arguments put forward, no doubt the Air Force family would feel aggrieved to have their child tried by the Army officers, and vice versa.

The aim of the Bill is to bring the services together in a single system of justice. I support that. I have to say to the noble Lord that I have not opposed that concept at all. The proper role of the court martial is to deal with disciplinary matters, but that is another argument that I shall leave. However, I support the bringing together of the services and their prosecuting authorities into one whole, and it seems anomalous that there is an attempt to maintain these rigid divisions between the services when appointing the panel. I can only assume that it comes from tradition and service pride, both of which I respect, but there are other issues which should be considered.

The noble Lord, Lord Thomas of Gresford, has overlooked the fact that my noble friend’s amendment says that it is a provision for the majority of the court martial panel. Personally, I think that it is a rather weak amendment but I still strongly support it.

I thank my noble friends Lord Campbell of Alloway and Lord Attlee, the noble and gallant Lords, Lord Boyce and Lord Vincent, and the noble Viscount, Lord Slim, for their support for the amendment.

The noble Lord, Lord Thomas, made some important points but I do not agree with him about inter-service rivalry. He said that military justice is coloured by the past and by traditions. Like the noble Lord, I want to see justice improved, but those traditions and the military ethos must not be thrown out without very good reason. I very much agree with the noble Viscount, Lord Slim, about the importance of the military ethos. We must not lose touch with that.

The noble Lord, Lord Garden, was happy to see mixed courts martial, but in my discussions with service men and women from all the services and all ranks they argued very strongly for the majority to be drawn from the defendant’s own service, as set out in our amendment. The noble and gallant Lord, Lord Boyce, made the important point that the vast majority of servicemen from different services do not overlap with one another.

I thank the Minister for his reply and welcome his recognition of the need for a court martial to be made up of members of the defendant’s own service wherever possible. He said that he would go away and think about the amendment, and perhaps we can have a discussion behind the scenes about how we take this matter forward. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Page 78, line 5, at end insert-

“( ) for the preparation and delivery of standard briefing notes to the prospective members of the court;”

The noble Lord said: I see that in today's groupings list this amendment has been included in the first group. I was not aware of that because on an earlier list, which I have with me, it was in a separate group altogether. As the Minister did not in his reply refer to Amendment No. 133, perhaps he will forgive me if I move it now.

This is just a detail, but it is important. Your Lordships will be aware that at the beginning of a court martial, when the panel is drawn together, members are given briefing notes about their duties and responsibilities. All I seek is to ensure that the regulations provide for the preparation and delivery of those notes and that they be standardised and published so that anybody who is appearing in a court martial, in whatever capacity—defendant or otherwise—knows precisely what the members of the court are told. Your Lordships will bear in mind that a panel in a court martial has no training or experience; it is like a jury who have not undergone any course. The panel is unlike magistrates, who will not be sitting unless they have attended various training courses and have sat with more experienced magistrates who can advise and slowly give them the experience that they need. A court martial is created on the spot, and it is very important that the briefing notes received cover all the panel’s responsibilities. I beg to move.

I have rather more sympathy for the noble Lord’s amendment, particularly his point about standardisation. I was not aware that different courts martial had different guidance. It may not vary a great deal, but the Minister ought to give the noble Lord’s amendment serious consideration.

In responding to Amendment No. 132, I shall also respond to Amendments Nos. 133 to 135 and to Amendment No. 156A, which is within the group.

We are unclear from Amendment No. 133 about the type of information that the noble Lord seeks in the briefing notes if the amendment were accepted. I am sure that noble Lords would agree that it would be inappropriate for a court member to be provided with any information about the details of the case in advance of the trial. Such information could be prejudicial to a fair trial, and I am sure noble Lords would agree that that is to be avoided.

In addition, a court martial member does not require a briefing on the law in advance of the trial, as he will be guided by the judge advocate in matters relating to legal points. I assume that the noble Lord intends the briefing notes to relate to matters such as the duties and responsibilities of panel members—for example, the duty fairly to try an accused, court room procedures, and so on. Court martial members already receive this information about these matters, which is achieved either through the issue of standard directions by the judge advocate at the trial or through written instructions issued to panel members when they are selected. In that respect, the lay members of the court receive far more information than a juror in the civilian system receives. The practice of providing written instructions to lay members of the court in advance of the trial will continue under the Bill, but the preparation and delivery of the information is an administrative function. We, therefore, do not believe that it needs to be provided for in rules, but can instead be put into guidance.

I trust that noble Lords will welcome the so-called slip rule for the court martial. Amendments Nos. 134 and 135 introduce a power to create this in rules made under the Bill. The slip rule is a power to respond to errors made in sentencing and is analogous to that which exists in the Crown Court. As with the Crown Court equivalent, the power will be exercisable only within 28 days of the original sentence or order being awarded, except when the original court martial was held outside the British islands, in which case an extension to that time limit may be appropriate.

The main difference from the Crown Court power is who may exercise that power. That is because at a court martial trial the judge advocate and the lay members jointly determine sentence. The court martial power will therefore be exercised by the original judge advocate and the same members, but if any of the original lay members are unavailable a new panel of different lay members will be used. However, it must be the judge advocate who sat on the original trial. When the judge advocate has acted alone at the relevant sentencing hearing—for example, where he has activated a suspended sentence alone—he will be able to apply the slip rule but, again, it must be the same judge advocate.

These amendments will also be beneficial because the Bill removes the non-judicial review of court martial decisions currently available under the service discipline Acts. A slip rule will enable the speedy correction of sentencing errors without the need for an appeal to the court martial appeal court, and has the strong support of the Judge Advocate General and the services.

Amendment No. 134A removes the current rule-making power that allows for appeals only against the imposition of reporting restrictions and replaces it with a wider appeals power. It allows rules to be made so that the imposition of reporting restrictions at preliminary hearings or the trial itself may be appealed. It also allows for all other orders and rulings made at preliminary hearings to be the subject of appeals, as they are in the civilian system. Of course, these other orders or rulings are not to be the subject of appeal if they are made during the trial. That is because the proper time for appealing any errors of law is at the conclusion of the trial rather than interrupting the trial itself to appeal a judge advocate’s decision.

Amendment No. 156A amends Schedule 8—

Will the Minister bear in mind that I have not, as yet, got to Amendment No. 156A? Again, this seems to have appeared in the groupings list this morning, and I will speak to it in its turn.

It appears that I am to reply to the Minister on the other amendments. I support him on the slip rule; it is an excellent idea. In the absence of the reviewing authority, it provides a way of dealing with errors.

I hear what the Minister says about the standard briefing notes. I am not concerned with briefing notes for a particular trial. The regulations should set out a requirement for those standard briefing notes to be produced, and they should be standard so that we can see exactly what they are. Unlike the past, there is now a firm division between the judge advocate and the panel: they do not communicate or socialise as they used to, just as with the jury. It is accordingly important to know what has been said to the prospective members of the panel prior to the trial, and to ensure that it is the same in every court martial. That is the purpose of my suggestion that it should be in regulations. I shall not take the matter any further at this stage, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Page 78, line 20, at end insert-

“(ga) for the variation by the court of a sentence passed by it or the variation or rescission by it of an order made by it;”

Page 78, line 21, leave out paragraph (h) and insert-

“(h) for appeals- (i) against any orders (including directions) of the court prohibiting or restricting the publication of any matter or excluding the public from any proceedings (whether made in preliminary proceedings or otherwise); (ii) against any other orders or rulings made in proceedings preliminary to a trial;”

Page 79, line 5, at end insert-

“( ) Rules made by virtue of subsection (3)(ga) may make provision about the commencement of sentences or orders varied by the court (including provision conferring on the court a power to direct that a sentence shall take effect otherwise than as mentioned in section 288(1)).”

On Question, amendments agreed to.

Clause 162, as amended, agreed to.

Clause 163 [Punishments available to Court Martial]:

[Amendments Nos. 136 and 137 not moved.]

Clause 163 agreed to.

Schedule 3 [Civilians etc: modifications of Court Martial sentencing powers]:

[Amendments Nos. 138 and 139 not moved.]

Schedule 3 agreed to.

Before Clause 164, insert the following new clause-


(1) For the purposes of this section, an offence of which a person is convicted or acquitted is “relevant” if-

(a) the charge in respect of the offence is one as regards which the person elected Court Martial trial under section 128 (whether or not the charge was amended after election); (b) the charge in respect of the offence was- (i) brought under section 124 in addition to a charge as regards which the person so elected; or (ii) substituted for a charge as regards which the person so elected, or for a charge within sub-paragraph (i), or for a charge so substituted; or (c) the person elected Court Martial trial as regards a charge in respect of another offence and conditions prescribed by Court Martial rules are met. (2) Where-

(a) the Court Martial convicts a person of an offence which is relevant by virtue of subsection (1)(a), and (b) subsection (4) (multiple relevant offences) does not apply, the sentence passed in respect of the offence must be such that the commanding officer could have awarded the punishments awarded by that sentence if he had heard the charge summarily and had recorded a finding that the charge had been proved. (3) In subsection (2) “the commanding officer” means the commanding officer who would have heard the charge if no election under section 128 had been made.

(4) This subsection applies where the court convicts a person of two or more relevant offences the charges in respect of which-

(a) would have been heard summarily together if no election under section 128 had been made; or (b) are under Court Martial rules to be treated as if they would have been so heard. (5) Court Martial rules may make provision about the sentencing powers available to the Court Martial-

(a) where subsection (4) applies; (b) where the court convicts a person of an offence which is relevant by virtue of subsection (1)(b) or (c). (6) Court Martial rules may make provision-

(a) about the sentencing principles that the Court Martial is to apply in relation to- (i) the sentencing of an offender for one or more relevant offences; or (ii) the sentencing of an offender for an offence with which a relevant offence is associated; (b) restricting the orders that the court may make by virtue of a conviction or acquittal of a relevant offence, including provision- (i) preventing the court from making an order of a particular kind; (ii) restricting the provision that may be made by an order of a particular kind; (c) in relation to any case where a person is convicted of a relevant offence,- (i) as respects appeals; (ii) excluding or restricting powers relating to review of sentence. (7) Rules made by virtue of this section may modify or exclude-

(a) any provision of or made under this Act (including section 254); (b) any provision of the Court Martial Appeals Act 1968.”

On Question, amendment agreed to.

Clause 164 negatived.

After Clause 164, insert the following new clause-


(1) The sentence passed by the Court Martial shall be determined by the judge advocate.

(2) In determining the appropriate sentence, the judge advocate shall consult the members of the Court Martial.”

The noble Lord said: This is a radical change to the existing system and I am sure that it will meet with opposition, as other radical changes have done. The amendment calls for the sentence in a court martial to be determined by the judge advocate. At the moment, the judge advocate has a vote and a casting vote, but sentencing is determined by the panel as a whole. If courts martial were confined to disciplinary proceedings, it would of course be appropriate for the panel to pass the sentence, but under new Clause 42 of the Bill and existing Section 72 of the Army Act 1955, the court has jurisdiction over the whole body of criminal offences.

Having sat through criminal justice Bill after criminal justice Bill and Bills consolidating sentencing on top of that, noble Lords will be aware that the area of sentencing for criminal offences is difficult and complex. As I have said before, sentencing is an exercise for which the members of the panel have no training whatever. They do not attend sentencing conferences or have the training on sentencing that the most junior assistant recorder in this country receives, let alone any further or higher training for dealing with serious offences, such as rape or manslaughter. Although it is traditional for the president of the court to pass the sentence and for the members of the court martial to determine the sentence, it is contrary to the sentencing practice of the courts of this country. Members of the panel are not obliged to follow any advice that may be given to them by the sentencing judge. Members of the panel do not have experience of the new sentences, such as community service, that are contained in the Bill or of the effect of probation and when such things are appropriate. They do not read Criminal Appeal Reports (Sentencing). They have no guidance whatever.

This is a reform that the Judge Advocate General, Judge Blackett, has promoted. He wants this power. From his experience, he considers it appropriate for the judge advocate, who has the training and experience and is accustomed to passing sentence, to be concerned with sentencing. No doubt where disciplinary or technical matters are concerned the judge advocate can consult the members of the panel, but it should not be the other way around. The expert on sentencing is the judge advocate, not members of the panel, and he should carry that responsibility in the appeal court where any appeals are lodged against the sentence that he has passed.

With the greatest respect for those who hold and who have held the highest positions within the services, I do not think that it is good enough to uphold the present position. I would not, as a lawyer, attempt to advise or direct the leading members of our services how to conduct a campaign or how to conduct operations. I have no experience in that. Similarly, in the reverse situation, as here, I ask the Committee to agree to what the Judge Advocate General has promoted and supported—that the sentencing power should lie in the right hands, with the experts. I beg to move.

Perhaps I may ask the noble Lord what the effect would be in practice if the procedure was the reverse of what he has just advocated. In other words, the court martial, which might have some ideas, would go to the judge advocate and say, “We thought of a sentence on these lines. With all your knowledge and experience, what do you think about it?” He would give his legal advice to the panel. It seems to me that you would come out with very much the same answer.

My experience of courts martial is that the judge advocate advises the panel on the appropriate sentence. He tells it what the maximum and the minimum legal sentences are—if there is a minimum. He gives it the tariff and the panel has to decide whether it wants to go to the top or the bottom end of the tariff. In my experience, the judge advocate spends quite a bit of time explaining to the panel what the options are. However, I am undecided on whether to support the noble Lord; I am just saying what happens in my experience.

The noble Lord, Lord Thomas, has suggested that the lay members have no experience in sentencing, but often lay members would be involved in sentencing at summary trial. I just put on record the fact that, on many occasions, lay members have experience in sentencing.

My experience is that the president would have made himself familiar with the possible sentences before the court sits. Certainly, in my experience, which I admit is many years old, the members of the court have always had a very good discussion with the president and he will elicit from each member what he feels. Of course the judge advocate is very much in play here; I cannot recall sitting on a court martial where, as the noble and gallant Lord said, the president does not ask the advice of the judge advocate—for example, he will say, “Are we on the right lines? What do you think?” Moreover, as the noble Earl said, the minimum and the maximum are given.

In my day, the president, certainly on getting a plea and working out whether the accused was guilty or not, always asked the junior member of the court martial first what his view and judgment were, so that the junior officer was not embarrassed by anything that might be said afterwards.

I see where the noble Lord is going, but I think of the soldier who expects to be sentenced and punished by the court, who will now be punished by the judge advocate. He will wonder what the president and the other members of the court felt.

The noble Earl, Lord Attlee, has helpfully explained the present position, in which the judge advocate will indicate the maximum and the minimum tariffs and the scope for discretion. The noble Viscount, Lord Slim, has explained how the president—if not the other members, but possibly them as well—will have experience of courts martial in previous cases.

However, I find it difficult to see how that matches the enormous experience of sentencing of even the most junior, part-time judges in our civil courts and the Crown Court—recorders—let alone the experienced judges at the Old Bailey and elsewhere. They have not only been on numerous sentencing weekends and courses but have developed enormous experience in individual cases. Surely there is no comparison between the occasional experience of military and naval officers in courts martial and the experience of those who conduct sentencing in our civil courts.

There is a certain logic, simplicity and clarity about the proposals of the noble Lord, Lord Thomas of Gresford, which, as he said, are also the proposals of the Judge Advocate General himself, Judge Blackett—namely, that the panel, the military officers, whether by a simple majority or, as others suggest, more than that, determine guilt and then someone else, the judge advocate in the court martial, determines the sentence from the much greater experience that he will have over any likely president or member of the court martial. I see a great deal of merit in moving towards that division or distinction of responsibility. It is most notable that the Judge Advocate General, with his experience over a very long period in the services, has come up with something that he must know will not be easily accepted by those who reach the highest office in the armed services. We should take that view very seriously indeed and, if the noble Lord does not press his amendment today, no doubt he will bring it back.

There must be a presumption in what the noble Lord, Lord Thomas, is suggesting that current arrangements are failing us—and failing us badly. Unless they are failing us badly, I can see little force in the arguments that have been put forward. The arrangements that the services have are peculiar to them. The reason for that is that there is a separate body of law for the services. I am reluctant to see any change, particularly along the lines of the amendment, unless it can be demonstrated that there has been a gross and continuing failure in the arrangements that we now have. On that basis, I oppose the amendment.

I do not suggest for a moment that there is gross failure in the current system, but we do not require juries to determine sentences in the civil courts. In military courts, however, we are saying in effect that the jury determines the sentence. My experience is far less than that of the Judge Advocate General in courts martial. He is a serving naval officer. His whole legal career has been in the service. He has risen from judge advocate to Judge Advocate of Her Majesty’s Fleet to Judge Advocate General, and is highly regarded, no doubt by the services but certainly by the legal profession. His views therefore carry considerable weight.

If he has drawn the conclusion, if only as a matter of form rather than of substance—to take the point made by the noble and gallant Lord, Lord Bramall—that it is right and obviously consonant with the European convention of requiring a fair trial that the sentencing process is left to the judge advocate, then I bow to him. If that is the view of a man of that experience and standing, who knows the process from the bottom up and who has no doubt prosecuted and defended and otherwise taken part many times in courts martial, I follow it. I see entirely where he is coming from. It is right that trained people should deal with their area of expertise. Surely that is the ethos of the services—trained people should use their expertise in the area for which they are trained, and should not venture into other areas.

Can the Minister give us any information about the extent to which there have been over some period, which it might be convenient for him to select, successful appeals on sentence to the courts martial appeal court? It also occurs to me that in the civil system of criminal courts, if we can talk about such a system, the president of the court is the one who sentences, in the sense that the judge is regarded as being in charge of the court during the whole process, although the jury determines guilt or innocence under his direction. In the military situation, the president of the court is in effect the foreman of the jury, if we look to the civil system for comparison. I can see the difficulty that some may have in thinking that someone who is not the president of the court should ultimately determine the court’s decision on the matter of sentence. That may be rather a superficial way of looking at the matter, but it is the way in which the courts martial are set up at the moment, and I do not think that the Bill intends to change that aspect of the courts martial system.

The noble and learned Lord, Lord Mackay, for whose contribution I am very grateful, brings to mind the fact that until now there has been a reviewing authority; certainly it was condemned by the European Court. The reviewing authority has had the power to change sentences from time to time, and the person who carried out the review was usually, at least in serious cases, the Judge Advocate General. He looked at the conviction, but he also looked at the sentence that had been passed. In a recent case, an eight-year sentence was reduced by the reviewing authority to four years, and is still subject to an appeal on sentence at four years to the Court of Appeal Criminal Division. That is an ongoing case.

Now that the Bill takes the reviewing authority away, it removes from the system the one person—the Judge Advocate General—who reviewed conviction and sentence in the past. There is now, quite deliberately—I do not object to it at all—a simple channel from the decision taken by the court martial to the courts martial appeal court. The sentencing appeals may therefore be much greater in the future without the check of the reviewing authority to alter an obviously unfair and improper sentence.

I have listened carefully to what has been said, but I am sure that noble Lords will not be surprised to learn that I cannot support Amendment No. 140. I have noted the request for information by the noble and learned Lord, Lord Mackay. I do not have the detail, but I will write to him with it.

The noble Lord, Lord Thomas of Gresford, makes a very interesting point. If the matter is raised on Report, will it be possible for the Minister to make it available then, not only to the noble and learned Lord, Lord Mackay, but to the whole House, because it is very important?

I am grateful to the noble Earl. I will do that. Our discussions across the House during the Bill’s passage have been very helpful, and we have aimed as a matter of policy to circulate our briefing notes as widely as possible. I am happy to continue that.

The noble Lord, Lord Thomas of Gresford, says that in service courts, as he describes them, the jury will decide the sentence. I should clarify that, under the Bill, the lay members of the jury and the judge advocate decide together. The judge advocate has a vote on the sentence, and under the Bill he will also have a casting vote. The noble Lord has quoted the Judge Advocate General extensively and cited his deep experience in this area, and it would be helpful if I also quoted him. In his evidence to the Select Committee on the Bill on 26 January, he said:

“In my view, the Court Martial system should reflect the Crown Court in all respects except where there are good operational reasons for differences. And there is a need for some differences”.

In his memorandum to the Committee, he also recognised that,

“the requirements of operational effectiveness make the differences indispensable”—

not impossible, as has been suggested. It is the special characteristics of service courts, and, indeed, of the military criminal justice system, which demonstrate that the military context is understood. This, as we have heard, is “indispensable” to preserving the confidence of service personnel in it, and directly underpins operational effectiveness.

Judge advocates are civilians who may have no service experience. The court must be seen, not least by the accused, to appreciate the factors that have an impact on discipline—and ultimately on operational effectiveness—as well as the unique pressures and responsibilities to which service personnel may be subject. As the service chiefs made clear in their evidence to the Select Committee on the Bill in another place, the military context must be taken into account when sentencing. We believe it is necessary for the lay members of the court to be fully part of the sentencing process. It is not sufficient for them to fulfil only a consultative role. In fact, the Judge Advocate General went on to say in his evidence about the judge advocate sentencing alone that,

“it probably is a step too far at the moment although I think it is an inevitability at some stage in the future provided, of course, specialist judges are judge advocates”.

The noble Lord’s view is not shared by all civilians who regularly participate in service proceedings. Mr Mason, a highly experienced defence advocate, told the Select Committee that he was wholly against the idea of a judge advocate dealing with sentencing on his own. He highlighted the important role of lay members with recent operational experience to the sentencing process.

Of course, the judge advocate gives advice to the lay members on sentencing. As he indicated, the Judge Advocate General has recently provided guidelines on sentencing, which address one of the points that the noble Lord makes. But we continue to believe that we need to involve the lay members in the sentencing decision. This does not affect the fairness of the process, but gives an assurance that all proper factors are taken into account and given the proper weight when the sentence is determined. On that basis, I hope that the noble Lord will agree to withdraw his amendment.

My amendment includes in subsection (2):

“In determining the appropriate sentence, the judge advocate shall consult the members of the Court Martial”.

I do not suggest that the judge advocate should sentence on his own, as he would in the Crown Court, without consulting the members of the court martial and obtaining their views on the military disciplinary aspects of the case. I suggest that the responsibility for the sentence should rest with the judge. The Minister has said that the judge advocate does play a part. He has a vote; indeed, he has a casting vote. But he may be in a minority of one when the original vote is taken. We must remember that these decisions are taken by simple majority, not by a unanimous view. It may not be possible for him to exercise a casting vote; he may be overruled by the panel.

The difference in a sentence may not be between five years and four years. For a defendant, it may be between being sent to prison, remanded or losing his liberty in the service context. He may be sent to a civil prison if he receives a sentence of over two years or he may be in military confinement if it is less. It could be the difference between the board wishing to send someone to prison for less than two years or a community sentence about which the judge knows. He may not have served as a clandestine solicitor in a community service operation, as the Lord Chief Justice has, but he will know a little more about alternative forms of punishment. It is not right that although the judge participates he has initially only one vote and can be overruled by all the members of the panel. I shall return to that matter on Report. I hope that Members of the Committee and the Minister will think more widely about the problem so that we can have as good a debate. Meanwhile, I thank all those who have participated today.

Perhaps the noble Lord will take a minute to deal a little more fully with the point raised by the noble and gallant Lord, Lord Craig. Since the question of confidence has featured so much in our discussions, how will confidence among the services be enhanced, if at all, if this amendment is carried, in the light of the circumstances whereby, as the noble Lord said, there is no case to be made for any failure in the present system? He put it a little stronger: he said that he was not alleging that there had been any gross failure in the present system. It is the question raised by the noble and gallant Lord. Perhaps the noble Lord will deal with the issue of confidence a little more.

First, if the Minister is to provide us with details of successful appeals on sentence to the Court of Appeal, it would not give a fair picture unless we also saw the number of occasions on which the reviewing authority had altered a sentence. We need to look at that because it goes to the success of the system. I repeat that I do not allege that the system is a failure. I do not think that it is possible to prove that a civil court would have passed this sentence as opposed to that sentence. I am saying that it is appropriate that those who are tried before a court martial should feel that they are being dealt with by a professional and an expert, and that when, and if, they go to prison the person sentencing knows all the possible alternatives. I accept that the judge can advise the panel about those matters, but he can be overruled or outvoted. It is a confidence-building factor for a person appearing in a court martial that someone who is independent of the panel is there to ensure that he gets fair play on the questions of conviction and sentence, and, further, that his sentence is not disproportionate to that which he would receive in civilian life. Those are the confidence-building factors on which I would rely. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 165 to 168 agreed to.

Schedule 4 agreed to.

Clauses 169 to 173 agreed to.

Clause 174 [Service compensation orders]:

[Amendment No. 141 not moved.]

Clause 174 agreed to.

Clauses 175 to 180 agreed to.

Schedule 5 agreed to.

Clause 181 agreed to.

Schedule 6 agreed to.

Clauses 182 and 183 agreed to.

Clause 184 [Conditional or absolute discharge]:

Page 93, line 16, leave out “section 281 or”

The noble Lord said: These are all detailed and technical government amendments. I should be happy to provide a detailed explanation if the Members of the Committee wish, but I am sure that they will recall that I wrote to noble Lords when the amendments were tabled on 27 September, setting out the reasons for the changes that we seek. In view of that, and with the leave of the Committee, I do not propose to detain Members further on this group. I beg to move.

On Question, amendment agreed to.

Clause 184, as amended, agreed to.

Clause 185 [Commission of further offence by person conditionally discharged]:

Page 93, line 21, leave out “section 281 or”

On Question, amendment agreed to.

Clause 185, as amended, agreed to.

Clauses 186 to 191 agreed to.

Clause 192 [Activation by CO of suspended sentence of service detention]:

Page 97, line 44, at end insert-

“( ) Any provision included by virtue of subsection (4) in an order made by an officer has effect subject to section (Commencement of suspended sentence activated by CO) (postponement of commencement of suspended sentence on activation by CO).”

On Question, amendment agreed to.

Clause 192, as amended, agreed to.

Clause 193 agreed to.

Clause 194 [Suspended sentences: powers of SAC]:

Page 99, line 20, at end insert-

“( ) In determining in any case-

(a) whether to substitute an order under section 192, or (b) the terms of any such substituted order, the Summary Appeal Court must take account of any period of the suspended sentence that the appellant served.”

On Question, amendment agreed to.

Clause 194, as amended, agreed to.

Clauses 195 to 205 agreed to.

Schedule 7 agreed to.

Clauses 206 to 235 agreed to.

Clause 236 [Duty to have regard to purposes of sentencing etc]:

[Amendment No. 146 not moved.]

Page 117, line 19, after “have” insert “particular”

The noble Lord said: I shall not detain noble Lords for long. In moving Amendment No. 147 I shall speak also to Amendments Nos. 151 and 154 in this grouping. While we welcome in the Bill the identification of the welfare needs of the under-18s, presumably the welfare of all offenders is a cause for concern. My amendment seeks to make that clear by providing that we must have “particular” regard to the welfare of those under 18. Amendment No. 151 addresses reductions in rank in Clause 247. Here we are looking to identify what happens when reductions are made between different ranks, in particular thinking of the severe effects when someone of the rank of sergeant is reduced by one level. His or her social life changes; he moves from the sergeants’ mess to that of more junior ranks, and there will be a change in accommodation that is a very visible downgrading. Often it may be appropriate to impose such a change in rank, but we should ensure that the Bill makes it clear that rank changes are affected by which ranks we are talking about.

Finally, Amendment No. 154 addresses the responsibilities for explaining the sentence set out in Clause 251. This is a probing amendment to see what the rationale is for the Secretary of State having the power to override a sensible set of rules. It is difficult to think under what circumstances such an order would need to be made. My amendment seeks to find out why the Ministry of Defence thinks it necessary to have this power. I beg to move.

I have tabled Amendment No. 156 in this group. It suggests that a civilian court must take into account all the effects of a sentence on a service person’s career. The Minister will point out that the court will or should do so in any case but the problem is that the service person himself might not fully appreciate all the consequences of a civilian sentence and therefore those consequences would not be raised in mitigation either by himself or by his solicitor. For instance, in many service trades a driving licence is essential. No licence equals no trade; no trade equals no promotion; having no promotion could possibly mean that his service might have to be terminated under regulations. That, in turn, could affect pension rights. I do not know whether the Minister can offer me any help on this point, but I am not convinced that the civilian courts always fully understand the consequences of their sentences for civilian offences.

I shall respond to Amendment 147 and then to Amendments Nos. 151 to 156 in this group. Amendment No. 147 would require the court or officer to have particular regard to the welfare of an offender aged under 18. Clause 236(2), based on Section 44 of the Children and Young Persons Act 1933, already requires that if an offender is aged under 18 the court or officer must have regard to his welfare. The fact that welfare is an additional factor to be taken into account when sentencing under 18 year-olds means that in our view the Bill already sufficiently protects their welfare. The intention behind the amendment may be that where the matter points to one sentence but another sentence would be better for the offender’s welfare, the court or officer must impose the latter sentence—in other words, that the offender’s welfare should be paramount. Obviously this is not the policy because it would not provide sufficient weight for the other objectives in the clause.

A sentence for a service offence may consist of or include forfeiture of seniority, reduction in rank or disrating. Clause 247 provides that the court may not pass such a sentence unless the offence or offences are serious enough to deserve them. In considering whether the seriousness of the offence warranted a particular sentence, we are satisfied that, as now, the court would consider the full effect of particular reductions in rank and therefore I do not think that Amendment No. 151 is necessary. When a court or officer imposes a fine, the court or officer is required under Clause 248 to inquire into the offender’s financial circumstances and to take them into account before fixing the amount of the fine. Account must also be taken of the circumstances of the case and the size of the fine must reflect the seriousness of the offence. This reflects similar provisions in the Criminal Justice Act 2003.

Amendment No. 152 would provide that the court or officer should make such a consideration only if the fine to be imposed is in excess of the equivalent of seven days’ pay. With respect to the noble Lord, this is arbitrary and takes no account of the varying circumstances that might apply to individuals in terms of their rates of pay and, for example, their necessary outgoings in support of a family. As in civilian courts, an assessment of means should be used regardless of the level of the fine to be imposed.

Amendment No. 153 also concerns Clause 248 and seeks to leave out subsection (3), which necessarily provides that in fixing the amount of a fine the court must take into account the circumstances of a case, including the offender’s financial circumstances. Subsection (3) is important as subsection (1) is merely a requirement to inquire into those circumstances. It also means that the court must take into account circumstances other than the offender’s financial circumstances and the seriousness of the offence. Subsection (3) is therefore an important provision that mirrors the Criminal Justice Act 2003, and for these reasons I cannot accept the amendment.

As I have said, wherever possible the Bill seeks to mirror practice in the civilian criminal courts, in particular changes to sentencing made under the Criminal Justice Act 2003. Clause 251 also requires a court or commanding officer, when passing sentence, to explain the reasons for and effect of that sentence as well as any powers of review. It replicates provisions in Section 174 of the Criminal Justice Act 2003. Clause 251(3) reproduces the power of the Secretary of State at subsection (4) of the 2003 Act to prescribe by order certain exemptions and other detailed provisions. Amendment No. 154 would have the effect of putting the Secretary of State under a duty to make prescription of this type rather than giving him a power to do so. This would be an unnecessary and unhelpful departure from civilian legislation—the same point also applies to Amendment No. 155, which seeks to remove subsection (3) altogether.

Amendment No. 156 on a civilian court’s requirement to consider widely the effects of any sentence passed on a member of the Armed Forces is unnecessary. We believe that civilian courts will routinely consider the effects of a sentence on the offender’s career and it would be inappropriate to single out personnel in this way. Nevertheless, I have listened to the example given by the noble Earl, Lord Attlee, in respect of driving offences and I will reflect further upon it.

Service personnel are invariably accompanied when attending a civilian court by an officer who, on behalf of the accused, can respond to the court’s questions as to the effect of sentence on the individual’s career. None the less, I feel that the noble Earl has made a point in relation to this.

I recognise the concern alluded to by the noble Earl. I will therefore ask my researchers to make sure that that is a word I can fairly use.

Clause 270 allows modification of civilian sentencing provisions so that they can operate appropriately in relation to service offences.

I have been through, at some length, the issues relating to these various amendments. I hope that the noble Lord will feel able to withdraw his amendment.

I have an exceptionally bad habit of not moving amendments in order to make good progress. The Minister has expertly shot me down on a few amendments that I did not actually move. I hope that anyone reading Hansard will appreciate that I did not move the amendments on which he shot me down.

I am grateful to the Minister. It was helpful to hear how he saw the welfare issues raised in the amendment relating to the under-18s and the important question of reductions in rank. I was less happy with his response to Amendment No. 154 in that he said this is merely a repeat of what is in the equivalent civil legislation. I asked under what circumstances a Secretary of State would need to do this in the context of the military. I would find it helpful if between now and Report the Minister could write with some examples.

With that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 236 agreed to.

Clauses 237 to 244 agreed to.

Clause 245 [Crediting of time in service custody: terms of imprisonment and detention]:

Page 121, line 40, after “custody” insert “in connection with the offence in question or any related offence”

On Question, amendment agreed to.

Clause 245, as amended, agreed to.

Clause 246 [Crediting of time in service custody: supplementary]:

Page 122, line 37, leave out “it takes effect” and insert “an order that it shall take effect is made”

Page 122, line 38, leave out “the order under which it takes effect” and insert “that order”

On Question, amendments agreed to.

Clause 246, as amended, agreed to.

Clause 247 [Forfeiture of seniority and reduction in rank or disrating: general restriction]:

[Amendment No. 151 not moved.]

Clause 247 agreed to.

Clause 248 [Fixing of fines]:

[Amendments Nos. 152 and 153 not moved.]

Clause 248 agreed to.

Clauses 249 and 250 agreed to.

Clause 251 [Duty to give reasons and explain sentence]:

[Amendments Nos. 154 and 155 not moved.]

Clause 251 agreed to.

Clauses 252 to 269 agreed to.

Clause 270 [Civilian courts dealing with service offences]:

[Amendment No. 156 not moved.]

Clause 270 agreed to.

Clause 271 agreed to.

Schedule 8 [Amendment of the Courts-Martial (Appeals) Act 1968]:

Page 219, line 11, at end insert-

“After section 36C insert-


(1) A person aggrieved may appeal to the Court Martial Appeal Court, if that court grants leave, against-

(a) an order under section 4 or 11 of the Contempt of Court Act 1981 made in relation to any trial by the Court Martial; (b) any order restricting the access of the public to the whole or any part of a trial by the Court Martial or to any proceedings ancillary to such a trial; and (c) any order restricting the publication of any report of the whole or any part of a trial on indictment or any such ancillary proceedings; and the decision of the Court Martial Appeal Court shall be final. (2) On an application for leave to appeal under this section, a judge shall have power to give such directions as appear to him to be appropriate and, without prejudice to the generality of this subsection, power-

(a) to order the production in court of any transcript or note of proceedings or other document; (b) to give directions as to persons who are to be parties to the appeal or who may be parties to it if they wish and as to service of documents on any person; and the Court Martial Appeal Court shall have the same powers as the single judge. (3) Subject to rules of court made by virtue of subsection (5) below, any party to an appeal under this section may give evidence before the Court Martial Appeal Court orally or in writing.

(4) On the hearing of an appeal under this section the Court Martial Appeal Court shall have power-

(a) to stay any proceedings in any other court until after the appeal is disposed of; (b) to confirm, reverse or vary the order complained of; and (c) to make such order as to costs as it thinks fit. (5) Without prejudice to the generality of section 84 of the Supreme Court Act 1981, rules of court may make in relation to trials satisfying specified conditions, special provision as to the practice and procedure to be followed in relation to hearings in camera and appeals from orders for such hearings and may in particular, but without prejudice to the generality of this subsection, provide that subsection (3) above shall not have effect.””

The noble Lord said: Sometimes in a court martial it is necessary for part of the proceedings to be subject to reporting restrictions. As a result of that the proceedings are not fully covered by the media. It may also be the case that some part of the proceedings, due to the sensitivity of what is being discussed—particularly in a court martial—will be held in camera and obviously cannot be reported. There is a lacuna in the provision for reporting restrictions in that, unlike the Crown Court, there is no right of appeal from the decision of the judge advocate when he imposes these reporting restrictions.

This has been addressed by an amendment in the House of Commons to Clause 162(3)(h) and (8), and we have today amended paragraph (h) by Amendment No. 134A. So the Government, appreciating that there is this absence for an appeal by the media against reporting restrictions, have now included a provision for appeals to be made to the Court Martial Appeal Court and are proposing that there should be regulations to that effect set out in the court martial rules which are to be made by the Secretary of State under Clause 162.

I look for an explanation from the Minister as to why rules are being used for this purpose. Amendment No. 156A seeks to insert into the Courts-Martial (Appeals) Act like provisions to those which apply in the Crown Court so that the system of appeals and the powers of the Court Martial Appeal Court in relation to an appeal on reporting restrictions are set out on the face of the Bill and not contained in rules and regulations at a later stage. I see no reason why the court martial procedure should be any different from the Crown Court procedure in a matter of this nature.

Both the Government and myself are clearly on the same lines in seeking to have an appeal procedure, the lack of which results from the curious unintended consequence of the abolition of judicial review in relation to courts martial in 2001 following a case which was successfully pursued in the Divisional Court. It is an anomaly. But, as I say, we are both on the same lines. I look forward to hearing why it is that the Government wish to deal with this by way of rules and not by putting it in the Bill. I beg to move.

As the noble Lord, Lord Thomas of Gresford, said, we have dealt with a number of these points. For example, we have dealt with the point on reporting restrictions; we have provided for such an appeal and we have already discussed this in Amendment No. 134A. We are also providing this for existing courts martial in another amendment.

As to the point the noble Lord made in relation to rules, we believe that this is a procedural matter and does not need to be in the Bill. I have written to the noble Lord about this issue at some length and described how the matters set out in Amendment No. 156A are provided for in the Bill or in government amendments. Having written to the noble Lord, I hope that he is prepared to withdraw the amendment.

Save for the fact that I think this is an important issue which should be on the face of the Bill, the noble Lord and I are obviously after the same thing. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 8 agreed to.

Clauses 272 to 274 agreed to.

Clause 275 [Compensation for miscarriages of justice]:

Page 138, line 2, leave out “Secretary of State” and insert “Attorney General”

The noble Lord said: Our rather simple amendment questions whether it is appropriate that the Secretary of State is able to override compensation for miscarriages of justice when the Secretary of State is doubtless one of the interested parties. We are looking only for some form of independent non-Ministry of Defence alternative. The amendment suggests that it should be the Attorney-General, but we would be happy to see any independent assessment that the Government suggest. I beg to move.

We are aiming to achieve a situation in which the military justice system, as a separate system of service law, is aligned with the civil system wherever possible. Given that aim, which is a fundamental underlying principle of the Bill, we feel it is appropriate for this role to be undertaken by the Secretary of State and the Ministry of Defence.

I am grateful to the Minister. I am not sure whether his argument takes us any further forward, but it is probably beyond the Committee’s powers to change all the legal arrangements for both the civil and military systems. I put on record my slight discomfort, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 275 agreed to.

Schedule 9 [Assessors of compensation for miscarriages of justice]:

Page 222, line 9, leave out “Supreme Court” and insert “Court of Judicature”

On Question, amendment agreed to.

Schedule 9, as amended, agreed to.

Clauses 276 and 277 agreed to.

Schedule 10 agreed to.

Clauses 278 to 280 agreed to.

Before Clause 281, insert the following new clause-


(1) Section 163 and Schedule 3 (punishments available to Court Martial) apply in relation to the Service Civilian Court as they apply in relation to the Court Martial.

(2) Subsection (1) is subject to-

(a) sections 282 and 283 (maximum imprisonment, fine or compensation order that may be awarded by SCC); and (b) subsection (3). (3) Where the Service Civilian Court sentences an offender to whom Part 2 of Schedule 3 applies, it may not award a punishment mentioned in any of rows 2 to 5 or 8 of the Table in section 163 (as modified by that Part of that Schedule).”

On Question, amendment agreed to.

Clause 281 negatived.

Clauses 282 to 290 agreed to.

After Clause 290, insert the following new clause-


(1) This section applies where an officer makes an order (“the activation order”) under section 192(3) (activation of suspended award of service detention).

(2) If the activation order does not provide that the suspended sentence shall take effect from the end of another sentence, section 289(2) to (8) apply, but with the following modifications-

(a) the reference in subsection (2) to the time of the award is to be read as to the time when the activation order is made; (b) the reference in subsection (2) to the day on which the award is made is to be read as to the day on which the activation order is made; (c) any other reference to “the award” in subsections (2) to (7) is to the award of service detention to which the activation order relates (with any modification of its term made by the activation order); (d) the reference in subsection (7) to an appeal is to an appeal against the activation order; and (e) in subsection (8)- (i) the reference to the award is to be read as to the activation order; and (ii) the reference to another punishment is to be read as to another order under section 192(3). (3) If the activation order provides that the suspended sentence shall take effect from the end of another sentence (“the initial sentence”), section 290(2) to (9) apply, but with the following modifications-

(a) the reference in subsection (2) to the time of the award is to be read as to the time when the activation order is made; (b) any reference to “the initial sentence” is to the initial sentence as defined by this subsection; (c) any reference to “the award” in subsections (4) to (7) is to the award of service detention to which the activation order relates (with any modification of its term made by the activation order); (d) the reference in subsection (8) to the award mentioned in section 290(1)(a) is to be read as to the activation order; and (e) in subsection (9)- (i) the reference to the award is to be read as to the activation order; and (ii) the reference to another punishment is to be read as to another order under section 192(3).”

On Question, amendment agreed to.

Clause 291 agreed to.

Clause 292 [Rank or rate of WOs and NCOs while in custody pursuant to custodial sentence etc]:

[Amendment No. 160 not moved.]

Clause 292 agreed to.

Clause 293 [Effect of sentence of dismissal]:

[Amendment No. 161 not moved.]

Clause 293 agreed to.

Clause 294 [Service detention]:

[Amendment No. 162 not moved.]

Clause 294 agreed to.

Clauses 295 to 305 agreed to.

Clause 306 [Sections 303 and 304: supplementary]:

Page 152, line 34, leave out “Defence Council” and insert “Secretary of State”

The noble Lord said: This is an important clause. It refers to making regulations about obtaining samples from members of the armed services with a view to drug testing. Currently the Defence Council is able to make regulations; the powers are quite wide on the number of samples, the circumstances, the equipment that can be used and the qualifications and training of those who take them. We need to consider the individual rights of our service people and see how we can safeguard them.

My amendment seeks to remove these powers from the Defence Council and give them to the Secretary of State. A note which some Members of the Committee may have read on page 20 of the report of the Joint Committee on Human Rights raised a much more fundamental question about whether random breath testing was appropriate. I am not raising that question but it highlights the sensitivity of the issue, which is why we need to be careful that we end up with proper parliamentary accountability for changes to the system as they take place. I beg to move.

I am mindful of the concerns that there may be about random drug testing, but it is important to recognise that the services take drug abuse extremely seriously, for obvious reasons. To date, our programme of random drug testing has been operated under prerogative powers. Clause 303 brings random drug testing into statute and provides the power to demand from a person, subject to service law, a sample of urine to test for drugs.

Clause 306 authorises the Defence Council to make regulations governing the manner in which samples can be obtained and analysed. The regulations may deal with a number of procedural matters concerning the taking of samples. The clause does not confer any powers in respect of the type of drugs for which tests can be made or the type of samples that may be taken. Those powers are conferred by Clause 305 and they are properly reserved to the Secretary of State.

Because the regulations made under Clause 306 are administrative and procedural, we believe they are properly within the remit of the Defence Council. I ask the noble Lord to withdraw his amendment, taking into account that the powers conferred under Clause 305 are reserved to the Secretary of State.

The Defence Council is the senior management body of the Ministry of Defence. Its membership comprises the chiefs of staff, the Ministers and the senior civil servants in the Ministry of Defence.

I am grateful to the Minister for his reply. He described what the Defence Council, on the rare occasions when it meets, will do under Clause 106 as being purely administrative. I suggest that, to the recipient of the drug test, the number of samples that one is required to provide may not seem totally administrative. The circumstances in which one has to give them, the equipment that is used, the qualifications and training of the people who take the samples are quite substantive issues. Given that the major area of the sampling is reserved for the Secretary of State, and that the Defence Council probably does not sit around the table that often to decide on the qualifications of those taking samples, I see no great strength in the view that these two areas of sampling should be separated. Although I shall not press the matter today, we could perhaps discuss it before Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 306 agreed to.

Clauses 307 to 319 agreed to.

Schedule 11 agreed to.

Clauses 320 to 331 agreed to.

Clause 332 [Redress of individual grievances: service complaints]:

Page 167, line 7, leave out subsection (2).

The noble and gallant Lord said: This is a probing amendment. Noble Lords may remember that I said at Second Reading:

“I am also wary of the catch-all provision, Clause 332(2), which could, it appears, give the Secretary of State unbridled power to bar types of complaints”.—[Official Report, 14/6/06; col. 269.]

The statutory redress system is a vital element of service disciplinary procedures. Is it right to give unconstrained authority to bar a redress application of any type? If it is trivial, it can be disposed of quickly. Why is this provision required?

This is a key element of the Bill. Before speaking to government amendments, I shall respond to Amendment No. 164. It is important to point out to the noble and gallant Lord that his amendment would prevent the Secretary of State excluding certain matters from the service complaints process. However, there are a number of situations in which a specialised procedure suited to deal with particular areas of complaint already exists.

We need to prevent the redress system becoming overburdened by cases for which an alternative procedure is better, but we recognise the sensitivity of the power, as the noble and gallant Lord highlighted, and have accepted the recommendation of the Delegated Powers and Regulatory Reform Committee of this House that the powers should be exercisable only subject to the affirmative resolution procedure. We are tabling an amendment to Clause 366 to provide for this.

Clause 332 already allows time limits to be laid down for bringing complaints. Government Amendment No. 164A allows regulations to be made setting out time limits for a matter to be referred to a higher level—a superior officer or the Defence Council. The aim is to reduce delays caused by the current absence of time limits on applying to take a complaint to the next level.

Government Amendments Nos. 169A, 169B, 186B and 201ZB introduce the service complaints commissioner. Noble Lords will remember that on 13 June the Government published their response to the report of the Deepcut review by Nicholas Blake QC and that a Statement on our intention to introduce a service complaints commissioner was made in another place. In the light of the tragic events at Deepcut, the Government recognised that there were three key needs. First, there should be an independent element in the investigation of and decision on complaints in cases of bullying and other misconduct. Secondly, there must be a way for people to ensure that allegations of such misconduct can be brought to the attention of the redress system and the victim given an opportunity to complain. Thirdly, there should be independent oversight of the performance of the system as a whole, with direct reports to Parliament and direct access to Ministers. The first need will be met by the inclusion in such cases of an independent member of the service complaints panel. The second need will be met by providing access to the system to outsiders to ensure that a complaint can be brought and that independent review is possible.

Government Amendments Nos. 169A, 169B and 186B provide the commissioner with the power to refer allegations of certain types of wrongdoing against members of the services to an officer, usually the commanding officer of the alleged victim. That officer will have a duty to inform the alleged victim about the allegation and find out whether he wants to make a complaint about the alleged wrong. The officer will also ensure that the alleged victim knows about how to make a service complaint and about any time limits under the legislation. Anyone may make allegations to the commissioner—a friend of the alleged victim, for example, or member of the same family.

Secondary legislation will define the types of allegation to which these provisions will apply, so that they cover those related to discrimination, bullying, harassment or other forms of misconduct. Secondary legislation will also provide for the commissioner to be informed about the progress and outcome of referred complaints. We are introducing an amendment to Clause 366 to provide for these regulations to be subject to affirmative procedure, and I shall refer to this again when we deal with the amendment.

To meet the third need, the commissioner will have a statutory role of reviewing the fairness and effectiveness of the service complaints system. He or she will have direct access to Ministers. The amendments will also require the commissioner to provide the Secretary of State with an annual report on the system to be laid before Parliament.

Amendments Nos. 170 and 189 also propose the introduction of a service complaints commissioner. Some of the noble Lords’ proposals coincide with those of the Government. However, Amendment No. 189—

The Minister is very gracious. I thought that it would save him a little time if I spoke to my Amendments Nos. 170 and 189, which speak of a military complaints commissioner. This is our way of laying a place mark at the Committee stage to ensure that this important aspect is not forgotten. The government amendments pick those matters up. There is a slight change of name, to the “service complaints commissioner”, but things have moved on very fast. While we greatly welcome the government amendment, which picks up the recommendations of the Blake report as well as previous recommendations from the 1990s, when some form of independent ombudsman was talked about, we will need both to read in Hansard the comments which the Minister has made today and to examine the detail of the proposals to see whether there are enough safeguards in the system to make sure that the service complaints commissioner has the right resources, that the person who fills the post is appropriate, and that the qualifications, terms of service and, in particular, the staffing arrangements are clear. We would not want to end up with someone who was a symbol but was unable to do the job. We will come back to this subject on Report. We would not want him to end up being harried like the Chief Inspector of Prisons, whose post we debated earlier this week. We strongly support Amendment No. 164, tabled by the noble and gallant Lord, Lord Craig, which is very good.

I am grateful to the noble Lord for his assistance in making progress on the Bill today. I have taken on board the point he makes about focusing on the ability to deliver in these matters. This is an area, following the Deepcut review, that we shall be taking extremely seriously. I will take that message back and further reflect upon it.

I shall speak to the amendments which the Minister has just been speaking about. As I reminded the House on Second Reading, and the Committee just now, I have expressed my reservations about the changes being introduced to the statutory redress system. The Explanatory Notes point out the importance of a right that “dates back to at least the 19th century”. The impact of the government amendments in this grouping is to introduce a so-called “independent” element into the redress arrangements. In part, as the Minister has mentioned, that has been driven by the aftermath of Deepcut, but it is another example of a political and parliamentary response to a particularly unfortunate episode. As with Dunblane and mad dogs, I doubt that the statutory response is always the best one, although I acknowledge that at times there is heavy pressure to be seen to be doing something, which is hard to resist.

When it comes to the Armed Forces, my concern is more specific. We have repeatedly reminded ourselves, on all sides of the Committee and in the other place, of the critical importance of the chain of command. I shall not dwell on this, other than to say that of all the many elements that go into a successful and responsible chain of command, the most important is that of trust. Commanders must have faith in their subordinates, and the latter must respond to that faith and themselves have trust in their commanders. When decisions affecting life and death may be involved, mutual trust is of the essence. I fear that a number of statutory decisions have been reached in the past 15 years or so that detract from that relationship of trust within the chain of command.

Each time we legislate in a way that implies or indicates that commanders and the command chain should not be involved in a disciplinary or complaints process, a secondary but no less important message is being transmitted. It may be no more than implicit, but it cannot be overlooked. The message is that commanders and the command chain cannot or may not be trusted to dispense discipline fairly. Is there not a fear—I have it—that the combination of these steps, and even more if they were to be enacted, such as those concerning courts martial composition and process now being advocated from the Liberal Democrat Benches, will serve further to undermine the trust that must exist up and down the chain of command? If commanders cannot be trusted to administer discipline, why should they still be trusted to exercise command? I am not suggesting that any one of the measures in itself could have that dramatic result, but it is their combination that concerns me, along with the continuing attempts to switch military disciplinary arrangements with those in use for civilians.

Some noble Lords may say that the legal system has to take priority. If that is to be our goal, there cannot be a realistic and viable separate disciplinary arrangement for the military. I believe, however, that we are agreed that there have to be separate arrangements, and the rationale for that should be given the casting vote, as it were, when deciding how best to provide for command and discipline in the services.

By nature, the services and servicemen are obedient to Parliament, so there is a reluctance in today’s forces to question the wisdom of Parliament. However, we are able to take a longer view of these matters. I argued during the passage of the human rights legislation in the House in 1998 that the Armed Forces should not be brought within the legislation, because they had, and must have, their own statutory arrangements. There are tensions and incompatibilities between what is best for the Armed Forces and for the rest of society. The proposals in these government amendments are unsound, because they serve to add to the subliminal message that the chain of command is untrustworthy.

I have listened carefully to what the noble and gallant Lord, Lord Craig, has said. It is not our intention at all to undermine the chain of command; indeed, quite the opposite. We recognise the absolute imperative of ensuring that the chain of command is not undermined. I have also taken on board his concern about the effects of the combination of measures, which have not been fully considered. I will read Hansard, reflect on these matters and, if I may, discuss this further with him.

We believe that the powers described in Amendments Nos. 170 and 189 would go too far. They would undermine the responsibility of the services for dealing with complaints, and would set up a parallel system of redress so that some of the complaints were dealt with under the internal system and some under the commissioners. I have set out the basis on which we have put forward our amendments: an independent panel member where misconduct is an issue; a commissioner to ensure that allegations of misconduct are fed into the complaints system; and independent supervision of the system by the commissioner.

We in the Ministry of Defence take the lessons we have learnt from the Deepcut review very seriously. As I have said in this House, it is a matter that I, as a member of the ministerial team within the Ministry of Defence, personally take seriously. I hope that noble Lords feel that the safeguards I have described, together with the existing system, will work fairly and efficiently, and that the services should retain their existing role and responsibility for responding to complaints.

I thank the Minister for what he has said. I noted in particular that he was proposing to make amendments that would affect the amendment I tabled to Clause 332. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Page 167, line 30, after “complaint” insert “, or an application of a kind mentioned in subsection (4)(c) or (e),”

On Question, amendment agreed to.

Clause 332, as amended, agreed to.

Clause 333 agreed to.

I beg to move that the House do now resume. In moving this Motion I suggest that the Committee resume not before 2.39 pm.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Euro-zone Economy

rose to ask Her Majesty’s Government what assessment they have made of current developments in the euro-zone economy.

The noble Lord said: My Lords, there has not been a major debate on the euro as a subject for some time in this House, probably for over a year, so I welcome this chance to ask the Government to respond on some of the salient issues in this won’t-go-away debate. I am grateful to the Minister for giving his time and coming to the House today to respond.

It also noteworthy that there are very few European matters on our radar screens anyway—partly, no doubt, because of the French and Dutch referendums on the draft constitutional treaty. I presume that gradually there will be a revival of issues next year with the period of reflection and as the EP elections approach in 2009. But for many of us, and indeed for the country, how frustrating it has been that the Prime Minister’s reckless energies have gone into the disastrous adventure in Iraq, and now the disturbing and unplanned second phase of the war in Afghanistan. How depressing that a Chancellor of the Exchequer has rather narrow-mindedly totally discouraged any discussion of the euro as an asset for Britain. We need to seize these moments and press some important questions. After all, the famous five conditions, coupled later with the addition of the exchange rate, remain “back of the envelope” opportunism except as generalised objectives. Mr Blair went back on his solemn commitment to have a campaign on the euro and a referendum. He unwisely chose subservience to perhaps the most disappointing president in recent American history rather than a central role in the courageous creation of monetary union in Europe.

Incidentally, as the German and other leading economies are now recovering from sluggish growth rates, the British press are not crowing so loudly about the Anglo-American economic model being the only success in town. How right they are now becoming. Without a shadow of doubt, European monetary union, a momentous step of staggering bravery by the countries that launched it in 1999, has been a very great benefit to the euro-zone members, large and small. The UK Government sadly did not have the necessary courage to join in. The British Treasury, as we now know, was fearful that the British economy could not cope, even if we were able to devalue, perhaps modestly, before any entry. The German currency discipline model, as originally constructed, was introduced for the 12 member states and, even in these early stages, we can see the internal and external advantages emerging.

Germany was the only country giving up a highly successful strong currency. What has happened there since is vital because many Germans are understandably very nostalgic about the great deutschmark. The internal growth rate there is now accelerating, although most growth still goes virtuously into staggeringly successful high-tech exports on a very large scale. In contrast, we, unfortunately, have a very large trade deficit; they have a mighty surplus. Germany has managed a high level of public sector investment spending over a lengthy time span. Its infrastructure does not creak and groan precariously, as the England fans noticed in large numbers in the summer. Even modest Belgium, with an economy about 12 per cent of the size of Germany’s, is doing well in EMU, as its central bank governor, Guy Quaden, asserted in June, referring to the marked rise in the country’s business confidence indicators—a reflection of its close trade links with other euro-zone countries.

I am sure that if more and more members of the public here—individuals and families as well as some company directors and finance directors—calculate exactly how expensive it is for us to pay both much higher interest charges and outrageously excessive aggregate charges on bank and credit cards and bank account transactions between us and the euro-zone, resentment will build up against this myopic Government. We should think again about the main advantages of a strong, integrated currency representing a high-output single market. Not only are import prices kept lower, which helps domestic prices to remain low, but rates of interest remain very low, acquisitions overseas are facilitated, international confidence in the currency grows and internal transactions aid greater cohesiveness of the marketplace.

The euro is becoming one of the most successful world marketplace currencies without, like sterling, having to be propped up by artificially high interest rates to attract bond buyers for the Government. It is backed by an internal trading area of high exports and strong surpluses. If you take the seven or eight key criterion comparators that the experts take, the dollar and the euro are now roughly in pole position. In Austria, for instance, the effects on interest rates of joining on 1 January 1999 were striking. Nominal rates on the 10-year benchmark bond fell from 6 per cent-plus to 4.75 per cent. The level of real interest rates fell even more, from 4.8 per cent to around 3 per cent. This trend was seen in the whole euro area. Your Lordships will recall the hysteria in the Sun and other newspapers in Britain that Ireland could not possibly cope with the euro because of property inflation. What happened? The average Irish central inflation figure remained lowish but the greater Dublin property rate of inflation and the Cork property rate of inflation remained higher than this figure. So what?

Of course, in Austria the schilling’s setting in the high and strong currency syndrome simply carried on into the euro system, as was the case in Germany. This was easier for the strong currency countries than the transition for weak currency entrants. France is a halfway house example but on the plus side because its political leaders, with the exception of the communists and the National Front, have had the courage to sell the franc fort policy for many years prior to 1999 and 2002. So France is a very good example. The best example of a large country coming from a weak currency, like Britain’s, to a strong currency success is Italy. It is a spectacular example of a weak currency being succeeded by a hard euro.

In January 2004, the respected former central bank governor and then president of the republic, Carlo Ciampi, said that,

“the euro is essential for economic growth”.

A month later in India he asserted that Italy had changed its old bad habits and could now use the euro as a source of strength. Just like the UK, Italy’s Ministers would regularly devalue the lira post-war to get out of a crisis and boost exports. But the entrepreneurs always told them that the advantage was temporary and shortlived. I recall that the debauchment of the pound and the lira against the deutschmark over those years was fairly similar.

The scare recently in the Italian press that price rises had been very sharp because of euro entry turned out to be wholly mistaken. The excess measurement covered only so-called boulevard prices—cafes, restaurants and fripperies. The average price rise in Italy remained modest. You will notice that if you read the research of Del Giovane and Sabbatini in the Bank of Italy economic research department report of May 2005. Then we had the hilarious suggestion from one eccentric Forza Italia Minister that they should go back to the lira after all. However, his colleague, Signor Siniscalco, the Finance Minister, said that that would add some €80 billion to the administration’s debt interest costs. Not surprisingly, the idea died away. Everywhere one assesses the euro effect, the conclusions appear to be judged as highly positive for the countries involved. Coming back to Ireland, the country has experienced very strong growth since 2002, with 2007 forecasts of 5 per cent-plus for GNP and GDP. It was described last year by the Governor of the Central Bank, Jean-Claude Trichet, as a “magnificent performer” in making the case for structural modernisation in the euro-zone economies.

The Paribas bank concluded in an in-depth study in March 2005 that the,

“huge turbulences caused by the 9-11 terror attacks, the financial and accounting scandals in recent years [not only in the United States] deflation jitters [here, there and everywhere] oil supply and price shocks”

and other negative factors had all helped the euro gain its position as an anchor reference point and a magnet of stability, helping the Union to escape the kinds of disasters such as Black Wednesday in the UK in 1992, and the crisis of leading EU currencies a year later, which was, incidentally, dealt with much more skilfully than by the Treasury and Bank of England’s clumsiness. Paribas also noted wryly that the euro’s weak post-launch start and its subsequent strong recovery in world money markets after 2003 were both criticised by the press here in exactly the same terms. The euro was being attacked not because it was weak or strong but because it was European and therefore wicked. Even the Independent—although I believe that this occurred only once—had a ridiculous article saying that the euro could not survive. However, as the Spanish central bank representative on the ECB board said in Malaysia in July last year,

“not only is the euro an (internal) currency, its international status is gradually increasing. (It) already plays an important role in world bond and forex markets, and for settlement and invoicing, and as an anchor”.

Indeed, as Pascal Blanqué from Crédit Agricole stated,

“the euro’s launch has changed the world financial landscape by creating the new duopoly of the dollar and euro. The latter is more and more considered as the alternative to the US dollar”.

Repeated studies have proved, as we know, that the euro has not caused sharp price hikes, quite the contrary, except in some property price eruptions in Ireland and Spain, for example. John Monks has repeatedly reminded us of the success of the euro in counteracting the adverse growth in household debt—as would have occurred in Britain, had Britain been a member—and of how Spain has done so well in resisting the excessive debt that we have experienced in this country.

There are other myths, as was shown in Charles Wyplosz’s excellent research in the compendium study on the consequences of saying no to the euro. I wish that I had time to go into them. Speaking in Mannheim before the summer holidays, Dr Axel Weber, president of the Bundesbank, dismissed hostility to the euro anywhere as absurd, described it as a monumental success and rejected as foolish the notion that rejection of the constitutional treaty in two countries was going to affect the euro, which is a truly bizarre idea. I await with interest and impatience the Minister’s response to those points.

My Lords, I very much welcome the debate introduced by the noble Lord, Lord Dykes, and I thank him for that. I also thank him for the 50 Moldovan lei that he leant me last week to buy a drink on a parliamentary visit to Moldova. Unfortunately, I did not have any euros with me so I had to borrow some from him, but I will repay that debt with five euros after the debate.

It is a timely debate. The euro-zone is prospering, and I note with interest that the recent oil price hike did not disrupt the euro, as has often been predicted by those who are opposed to it. I am not ecstatic about it now, as I was not despondent when the growth rate was flat, because the essential point of the euro is to service the single market. Prosperity comes from other reforms; labour market reforms, financial and product market reforms and of course the completion of the single market. On that point, the easy way to present the single currency to the British people is to remind them that the four countries making up the United Kingdom already operate as a single currency. Mind you, two countries of our Union are not able to use their notes here in England; but never mind.

Everyone agrees with a single currency operating a single market; the question is which one. The euro has been an outstanding success in its creation, its launch and the progress despite the gainsayers such as the former Prime Minister John Major, who likened those who advocated the euro to those dancing a rain dance in terms of the hope they had of success. Recently in the Daily Telegraph Ambrose Evans-Pritchard said gaily:

“The disintegration of the euro may well be drawing nearer”.

The fact is that it is secure and it will be secure for the future.

Nevertheless, there are issues about the future and the governance of the euro which need to draw our attention. I very much support Trichet as the ECB governor, and he must be supported in defending the independence of the ECB as opposed to some political moves by Juncker and others to interfere with that independence. Nevertheless, Monsieur Trichet should be reminded—as his predecessor Duisenberg possibly was not—that part of the statute of the euro was that once price inflation had been conquered and sustained there was the ability to do something about the exchange rate to stimulate job creation.

I possibly share the concern of others that the Commission used unaccountable inflexibility recently to bar Lithuania, which in every other respect has fulfilled the criteria to join, simply on the count that the inflation rate was 0.07 per cent above the requirement. Britain is outside the euro, but potential problems are being veiled by the outstanding success of Gordon Brown at the Treasury. Nevertheless, there are causes for concern. Take the yo-yoing pound against the dollar; $1.40 some months ago and now $1.85, but it could well be on the climb to $2 to the pound. That may be very good for British tourists going to New York to do their Christmas shopping, but it is not healthy for British manufacturing; neither the rate nor the uncertainty that is introduced by not being part and parcel of a bigger single currency area such as the euro. The pound sterling now lies uncomfortably on the fault line of the moving tectonic plates of the dollar and the euro. To avoid earthquakes and floods in the future, we need to be inside the euro. Gordon Brown’s success means that currently the euro is off the political agenda, which I regret. I am worried about this phoney war, and I am worried that all is too quiet on the western front for Britain bordering the euro-zone.

I conclude with a series of questions for my noble friend. First, we are not inside the euro-zone, but we have to adhere to the broad economic guidelines. Will my noble friend report how successfully we are doing that, and perhaps incorporate an update of the situation with respect to our budget and debt criteria? Secondly, when will the next assessment be made by the Treasury of the five economic tests? Has the Treasury undertaken any kind of assessment of the cost of the United Kingdom remaining outside the euro? That work should be done profitably. Has there been an update of the 2003 national changeover plan? When you think of the changes that have happened in the way that the euro has established itself, it surely must be the case that there will have been changes to be reflected in that changeover plan that take account of what has happened in the interim.

I shall consider some other sectors. What about local authorities, for instance? I understand that on 21 September there was meant to be a meeting of the people who are managing the preparation plan and local authorities. Did that meeting take place? What was the result? I would be interested to know what was discussed. They will play a crucial role if the euro comes into play here in the United Kingdom. Why is there no separate budget for the Euro Preparation Unit under the Treasury budget as a whole? Is it not important? Why have its personnel been cut year on year from 17 full time equivalents in 2002, whittled down to nine? I regard that as unfortunate.

Have the 18 EMU studies been updated, developed and expanded? Why are there no analyses of certain sectoral areas? For instance, I have in mind the small business sector. Have we considered its worries and concerns, or those of the tourism industry? I do not just mean by that preparation for joining the euro. What has been the good or bad effect of staying outside the euro-zone? Apropos of that last question, does my noble friend agree that Britain’s banks are failing British business with the lack of a competitive euro banking service? That is alluded to in the euro preparation Managed Transition Plan under information on existing retail banking services.

I conclude with one example of where one business, namely Cash Bases Group Ltd, of Newhaven in East Sussex, employing some 230 people, is successfully negotiating being outside the euro. It seems to me from what it reports that it has difficulties to overcome, which would not be the case of a business in the euro-zone. I quote:

“With our capability to price and invoice in euro now well established, we are using our considerable euro income stream to buy raw materials in France. This matching operation between sales and purchases allows us to ‘hedge’ the exchange differentials”.

Good luck to it if it is able to do that; not everyone is able to do that. Here is an advantage:

“We have also used the euro to service the mortgage on part of our company’s base here in Sussex and we plan to take out further loans in the currency. This move is to take advantage of currently lower mortgage rates in euro compared with those quoted in sterling”.

It is my strong desire that the Government conduct a campaign to explain the advantages of being in the euro. It is good that British business is accommodating itself, but nevertheless it faces problems that incapacitate it in driving itself forward within the single market.

The time is coming soon that when Europe as well as America sneeze, Britain catches a cold.

My Lords, I congratulate the noble Lord, Lord Dykes, on initiating this debate. Not surprisingly, I absolutely share his general thesis that Britain would be better off within the euro-zone. However, I fear, looking at recent international events, raising that question is a bit like asking, “Should Beckham play for the England football team?”. It is clear that as long as we have the current manager, he won’t be. Equally, as long as we have the current Chancellor, who is a possible Prime Minister, the chances of Britain joining the euro-zone are almost as negligible.

The noble Lord, Lord Harrison, reminded us of the golden age in euro preparations, when a whole raft of committees were examining them. Euro preparation plans were produced every few months and there was a sense of real momentum. I feel sorry for those few remaining souls whose job is to work on euro preparation, because one wonders whether, when they go to bed or go home at the end of the week, they feel they have achieved something and are part of a great, positive enterprise.

The debate is not going to go away and, when it is revisited from time to time, our starting point will be whether the euro-zone has been a success in its own terms and whether the economies within the zone have done well out of it. There are a number of signal successes. The euro-zone has achieved one of its central purposes of maintaining inflation at a low and apparently sustainable level. The growth and stability pact that underpins the euro-zone, despite various vicissitudes, has undoubtedly helped to rein in what would otherwise have been unsustainable levels of public expenditure among a number of euro-zone members. As a result, that has avoided the kind of boom and bust in public expenditure with which we have associated some of those economies—and which may become a feature of our own economy.

Figures produced at the end of last month have even led to the suggestion that the euro-zone now enjoys a Goldilocks recovery—neither too hot nor too cold. Inflation across the zone in September was 1.8 per cent; growth in the second quarter exceeded that of the US and it looks as though that figure will be some 2.5 per cent over the whole year. A recent Eurostat survey showed that economic sentiment among businesses and consumers across the euro-zone was at its highest level for five years.

These figures are underpinned by productivity improvements in the first half of the year—up by 2 per cent, compared with an average rise of less than 1 per cent over the past five years. Since the euro-zone was created in 1999, some 7 million new jobs have been created and the employment rate across the zone as a whole has risen from 63 to 66 per cent. Looking at some of the countries within the euro-zone, rather than the aggregate of the whole zone, there have been some remarkable improvements.

Germany has been extremely interesting, because it has adjusted to euro-zone membership by having very low real-wage growth over the past six years, directly as a result of recognising that the country would be locked into a stable currency with its principal trading partners in Europe. That has produced a discipline that has enabled negotiators to rein in real wage increases. In turn, that has helped fuel a big rise in German trade and current account surpluses. Perhaps partly because of that long period of low real-wage growth, it is not surprising that confidence in the German economy was at a 15-year high when it was last measured.

In France, the picture has been more mixed. However, in June, unemployment was at its lowest level for four years and the stability and constraints that the euro-zone has provided have helped to turn the economy around. Of course, given that the euro-zone is a multifarious area, some successes are distinctive to the countries that have been able to achieve them.

The Greek Government recently announced a 25 per cent upward revision in GDP, because Greek statisticians realised that they has failed to take account of some fast-growing areas of the service sector, of which money laundering and prostitution were singled out in the popular press. One wonders what research was undertaken by the Greek statisticians that enables them now to measure those sectors of the economy with greater precision. One can only be grateful and pleased for Greece that its new-found wealth, albeit from surprising sources, means that it can bring its budget deficit below the 3 per cent GDP ceiling, as required by the growth and stability pact.

Given that we are discussing the economy and Europe, it would be mistaken to take the view that everything has been plain sailing and will necessarily continue to be so. I strongly agree on a political level with the support given by the noble Lord, Lord Harrison, to Monsieur Trichet for the independence of euro-zone institutions, so that there is no political interference to underpin the reasons for the key success of those institutions—keeping their eyes focused on a clear, non-political target; namely, the inflation rate. I remember that Monsieur Trichet made a speech here in London before the euro-zone was established about how he was a firm supporter of it, even though he was governor of the Banque de France, because it would impose discipline on the French economy and help reform—which it has.

That is the down side of the current situation, a general sense that reform has not gone far enough, whether in relation to taxes on business, labour costs as a result of social payments, or generally inflexible labour markets. There is an argument, with which I am not sure I wholly agree, that the euro-zone has created a false sense of security for its members in that they believe that, because they have the security blanket of the euro-zone, perhaps they do not need to reform as much as they might in those areas. However, failure to do so only slows down growth.

But even taking into account those issues—and we see how reform is undertaken in a number of countries and remember how difficult it was to reform many of our own labour practices and the great rows that took place, particularly in the 1980s, over reforms that we now extol internationally—reform is taking place and pressure to reform is continuing. In the member states which have newly joined Europe and are struggling to reach a position whereby they can join the euro-zone—Hungary or Poland, for example—for different reasons there is a consensus that euro-zone membership would improve the management of their macro economies making it less likely that high, ongoing budget deficits are maintained and making those countries less vulnerable to international economic shocks.

As for the argument that the euro-zone might unravel because Italy, in particular, has difficulties from time to time, first, that is highly unlikely; and, secondly, does anyone really believe that the long-term interests of the Italian economy would be served by being outside the euro-zone? I think not.

In the UK, there are strong economic arguments in favour of being a member of the euro-zone, including that mentioned by the noble Lord, Lord Harrison, regarding the dollar. The key argument, which we should have been and, it is hoped, will be honest enough to address, is a political one about whether Britain wishes to be at the heart of Europe and whether it wishes to play a full part in moving forward the European economic reform agenda as a whole. So long as we are outside the euro-zone, we are simply not sitting in the meetings which would enable those reforms to take place. There is undoubtedly a big economic cost in not being in the euro but, in my view, there is an even bigger political cost.

My Lords, the enthusiasm of the noble Lord, Lord Dykes, for the European project is well known in your Lordships' House and he has not disappointed us this afternoon. It will not surprise him that I find it difficult to agree with anything that he said, and in that I feel somewhat alone among those who have chosen to speak in this debate.

The noble Lord’s Question refers to the euro-zone economy, but of course there is no such thing. Adding together the economies of the 12 countries that have committed themselves to economic and monetary union does not make them one economy. It is just possible that if the 12 countries had exhibited genuine and sustainable economic convergence prior to the creation of economic and monetary union, we could now be looking at something that resembled a single euro-zone economy. But the truth was that the politics of the euro were stronger than the economic facts, and so various wheezes and fibs allowed economic and monetary union to proceed on the basis of economies that were, in fact, very dissimilar.

We have seen the truth of divergence in the different economic performances post-economic and monetary union, with Ireland at one end of the growth scale and Germany at the other. That has been the case not just in terms of growth; it will also be found in workforce statistics and in income per person.

The truth is that there is not one euro-zone but 12 economies moving in different ways. That is not just a comment on the smaller countries within the euro-zone; it is true of the core countries of France and Germany. For example, in the past few years, one has done startlingly well at increasing its exports in goods and the other has fallen back. One has a growing trade surplus and the other a growing trade deficit. That helps to explain why Germany has recently turned its economic performance around more than France.

This divergent performance throughout the euro-zone has, in turn, illustrated the fallacy of a one-size-fits-all instrument of economic policy—namely, the single interest rate tuned to a euro-zone-wide measure of inflation. That interest rate policy has, until recently, held rates at levels designed to suit the sluggish German economy. But of course the real impact has been an inflationary boom in other economies, such as those of Ireland and Spain, on the back of negative real interest rates. The overall statistics for the euro-zone never tell the truth for any individual country within it.

For several years, euro-zone growth has lagged behind that of the UK, the US and practically anywhere else you care to mention. There has been some good news on euro-zone economic performance this year, largely on the back of an apparent recovery in Germany. But a number of factors—for example, the World Cup effect and the imminent changes in VAT in Germany—have flattered those statistics in Germany. Yesterday, we had the news that business confidence in Germany had slumped dramatically. The noble Lord, Lord Newby, said that it was at a 15-year high, but I suspect that he did not read yesterday's news, which showed that it was again in serious decline. Indeed, yesterday's view from the European Commission was of lower, perhaps even zero, growth in the first quarter of next year. That rings true. A potential world economic slowdown on the back of high oil prices and a slowing US housing market, as the IMF has warned, will not bypass the euro-zone.

The relative lack of success of the euro-zone is not a Eurosceptic narrative. No less than the Conseil d’Analyse Economique, firmly rooted in the French Government, concluded in a recent report:

“Economic integration has stagnated and no longer promotes growth. The Euro's creation has not produced the knock on benefits expected. The Eurozone area’s macroeconomic framework has become obsolete”.

The only thing that is extraordinary about that quotation is that it is predicated on a belief that economic integration has, at some stage, in some way promoted economic growth, and I do not believe that there is a jot of evidence to support that proposition. The extraordinary thing about the report overall is that the solution to this failure is more economic integration, but of course there never has been any accounting for the French.

The plain facts remain that some of the euro-zone economies have avoided deep and meaningful reform, especially in their labour markets. We have to single out Germany, France and Italy as the principal culprits. French labour laws are Byzantine by any standards and they probably vie with Germany in their cost. The World Bank, for example, has estimated that in Germany it costs an average of 67 weeks’ pay to get rid of each worker. That does not promote flexibility in the economy.

Once upon a time, the failure of the single currency and the consequent implosion of the euro-zone was the prediction of only some Eurosceptics. For those, it was just one more reason why the UK should keep well clear of economic and monetary union. If the euro-zone fails to hold together, that will be messy and costly, not just for the countries concerned but also for countries that have significant trade balances with the euro-zone. That, of course, includes the UK, although we are not, by some margin, the country most affected. That is why the failure of economic and monetary union was not something that any UK citizen, Eurosceptic or not, could rejoice in predicting.

But those Eurosceptics have recently been joined by the distinctly pro-euro think tank, the Centre for European Reform. This think tank has concluded that the single currency now risks becoming a,

“source of economic dislocation and political division”.

Italy may well be the closest to the edge in triggering a crisis but it is not alone, with Portugal, Greece and Spain joining it in the possible departure lounge.

I have a number of questions that I hope the Minister will deal with when he responds. First, does he agree that the countries within the euro-zone have not, overall, prospered from their membership? Economic performance within the euro-zone has been disappointing, with the one-size-fits-all policies harming rather than helping those economies. Secondly, and following on from that, does the Minister agree that the Chancellor's determination to keep the UK out of economic and monetary union has been a wise and sensible stance from the perspective of the UK economy?

Thirdly, and more importantly, will the Minister update the House on the Chancellor's current thinking on the UK and economic and monetary union? The likely move of the Chancellor to No. 10 at some stage when the Prime Minister finds it convenient makes this especially important. The Chancellor has strong Eurosceptic credentials and many of us hope that, if he is allowed to move to No. 10, he will take those credentials with him.

Fourthly, will the Minister remind the House when the next assessment of UK membership will be made and will he outline the terms of that assessment? The noble Lord, Lord Harrison, also asked that question. The timing of that assessment against the background of the Labour Party's succession struggles makes this an important issue. The way in which the assessment is carried out is also important. The right result was achieved last time but I am sure that I am not alone in thinking that an assessment carried out behind the closed doors of the Treasury is not a transparent and respectable way to conduct major government business. Will the assessment next time be a more open process?

Lastly, and even more importantly, will the Minister confirm that there will be no question of the UK joining the euro without a referendum, with the UK approving that move? Economic and monetary union has not been a success for the economies that are locked into it. Serious cracks are now appearing and, while we may well struggle on without an implosion, it is not a system that a successful economy, which I believe our economy broadly is, should want to join. I hope that the Minister will confirm that the Government continue to believe that the British people will be the best judge of that if the question ever arises again in earnest.

My Lords, this has been an interesting and useful debate, and I thank the noble Lord, Lord Dykes, for initiating it, and all noble Lords who have spoken this afternoon. There has been a spread of views—not an identity of view—on this issue, which is not surprising.

At the heart of our debate must be the assessment that despite Europe’s and the euro area’s current cyclical recovery, structural problems persist. Europe’s low growth in the past five years—2001-2005—coupled with a persistent lack of resilience highlight continuing structural policy weaknesses. To be fair, that is a different picture from that painted by the noble Lords, Lord Dykes and Lord Newby, and, to a certain extent, my noble friend Lord Harrison. If anything, the current recovery must be seen as a rare window of opportunity for Europe and the euro-zone to exploit the upswing and commit to making Europe a dynamic and knowledge-based economy capable of sustainable economic growth and creating employment.

The right policy response—to which several noble Lords referred—is therefore the continued pursuit of structural reform to raise labour participation, boost productivity and increase flexibility in labour, product and capital markets. Economic and monetary union puts a premium on structural economic flexibility, as to be successful in monetary union countries need additional flexibility to adjust to change and to unexpected economic events.

Alongside EMU, the challenges of globalisation and demographic change place additional emphasis on the importance of rising to the reform challenge. We are part of a rapidly changing global economy that brings significant economic challenges in terms of a changing balance of economic activity, increasing global integration and intensifying global competition. Declining birth rates and rising life expectancies are interacting to produce a dramatic change in the size and age structure of Europe’s population. If unaddressed this will markedly increase the dependency ratio in countries, with serious negative implications for trend growth and pronounced increases in public spending. To address this challenge Europe needs to review its pension, long-term care and health systems and aim to raise labour utilisation underpinned by an adequate and transparent macro-economic framework as well as sound public finances.

To improve its economic performance relative to the US and consistently match the recent growth rates of other successful developed economies, Europe must take urgent action to promote employment and boost productivity. The Lisbon programme of economic reform has recently been refocused by EU leaders on promoting growth and employment. They are the areas in which Europe most needs to succeed in order to compete in a global economy that puts a premium on skills, innovation and flexibility.

With regard to Europe’s current economic performance, which was the subject of a number of contributions, although it is currently undergoing a cyclical recovery and the majority of member states are performing relatively well, with strong out-turns, particularly in the first half of this year, Europe still needs to make up much ground in comparison with key developed economies, while unemployment remains relatively high and persistent. As the noble Baroness said, we cannot look at this in total; we have to unpick and see what is happening in individual countries.

The current recovery is still not sustainably entrenched, with greater uncertainty beyond 2006, while the recent economic stagnation highlights remaining structural problems. On the issue of growth, since 1996 annual average growth in GDP in the euro area has averaged about 1.2 per cent less than in the US. Indeed, in 2005, real GDP growth in the euro area was less than half that in the US.

Stronger growth in non-euro area countries, such as Sweden, the UK and also the new member states, boosted growth for the EU25 as a whole to about 1.75 per cent in 2005, compared to 3.25 per cent in the US. Europe’s growth rate still lags behind those of its main competitors. As a result, the gap in living standards between the US and the EU15 has widened back above 30 per cent.

Analysis suggests that Europe’s labour market performance explains about two-thirds of Europe’s gap in living standards with the US; the remaining third can be attributed to Europe’s lower productivity levels. Despite recent efforts to boost employment and marked success in some member states, particularly in raising female employment, inactivity rates remain high, with more than 90 million inactive people of working age across the EU25.

The employment rate of older workers remains especially low and well below that of major competitors like the USA and Japan. Moreover, at around 8 per cent, Europe’s unemployment rate is considerably higher than that in the US and Japan—and the UK—leaving 17.5 million people unemployed.

Raising productivity levels will also be crucial for Europe to improve its long-term economic performance and living standards. The euro-zone underperforms against the US in terms of both output per hour and output per worker, and the gap has been widening since the mid-1990s, reversing the trend of catch-up with US productivity levels during the three decades following the war.

Recent analysis suggests that the underlying causes are largely structural, reflecting in particular a failure to boost services productivity. The relatively small size of the EU’s “knowledge services” and ICT-producing as well as high-productivity ICT-using manufacturing sectors particularly present challenges. This points to a clear need for further action to promote the key drivers of productivity, increasing product market competition, enhancing the EU’s frameworks for innovation and enterprise, and upgrading the skills of both existing workers and new entrants to the labour market so that they can exploit the opportunities of new technology.

The advent of EMU is itself a driver for pursuing structural reform and enhancing economic flexibility, especially in the euro area. To be successful in monetary union, countries need even more flexibility to adjust to change and to unexpected economic events once the ability of countries to vary their interest rates and exchange rates has gone and the euro and the single European interest rate are in place. EMU membership therefore puts an additional premium on ongoing reform of EU labour, product and capital markets.

In this context, the Government continue to argue that employability, flexibility and stronger competition policies must be a top priority, so that EMU can be a sustained success. Enhancing the flexibility and dynamism of the European economy and building on the achievements to date are important if the full benefits of EMU are to be realised. This is particularly important as EMU expands to take in the new members that joined the EU in 2004.

Several questions were posed and I shall try to deal with them all. Perhaps I may start by reaffirming the Government’s policy. The Government’s policy on membership of the single currency is unchanged. It remains as set out in the Chancellor’s Statement in the House of Commons in October 1997, and again in the Chancellor’s Statement on the five tests assessment in June 2003. The Chancellor announced in Budget 2006 that the Government do not propose a euro assessment to be initiated at the time of this Budget and the Treasury will again review the situation at Budget time next year, as required by the Chancellor’s 2003 Statement.

In principle, we are in favour of UK membership of EMU, but in practice the economic conditions must be right. A decision on the membership of the single currency will be based on whether it is in the national interest to join and whether the case is clear and unambiguous. Overall, the Treasury assessment is that since 1997 the UK has made real progress towards meeting the five-year economic test, but on balance until the potential benefits of increased investment and trade, a boost to financial services, growth and jobs are clear, which addresses the point made by my noble friend Lord Harrison, we cannot at this point conclude that there is sustainable and durable convergence, or sufficient flexibility to cope with any potential difficulties within the euro area. Despite the risks and costs, which clearly exist, of delaying the benefits of joining, a clear and unambiguous case for UK membership of EMU has not yet been made and a decision to join now would not be in the national economic interest.

My noble friend Lord Harrison asked about the EPU. It maintains a network of experts with stakeholders as part of the regular programme of activities on EU preparations. The meeting with local authorities took place on 21 September and discussed European preparation issues of relevance to local authorities. There was a question about the separate budget for the Euro Preparations Unit. The costs of the euro preparations in the Treasury are met from within Treasury department expenditure limits.

An update on the national changeover plan was asked for. The third outlying national changeover plan was published in June 2003 and sets out the possible timetable for changeover, its management and the impact on consumers, business, financial services, and the voluntary and public sectors. Since then, the EPU has worked with stakeholders from across the economy to develop a suite of supporting planning documents, including a draft management transition plan and a draft consumer protection framework. Details of these can be found on the website.

On banks, the UK is committed to encouraging competition in both the UK and EU markets. EU competition authorities are currently looking at the state of competition in retail banking markets, and will be reporting shortly.

The noble Baroness, Lady Noakes, posed some questions about the Government’s position on the euro, and I think I have set that out. She referred to the Chancellor continuing to be wise, and I can confirm that I am sure he will. I have dealt with when the next assessment is due. No assessment has been made in relation to the last Budget, and the matter will be reviewed at the next. The position on the referendum remains unchanged: we would not go into the euro without one.

The noble Lord, Lord Harrison, raised issues about public finances. UK public finances are fully consistent with a prudent interpretation of the stability and growth pact, which takes into account the economic cycle, long-term sustainability of public finances and the role of public investment. Both the Treasury and Commission projections show that the UK deficit will reach the reference value of 3 per cent in 2006-07, and fall thereafter.

I am reminded that time is up, so I shall briefly summarise. Although Europe is currently bouncing back, enjoying a cyclical recovery and, encouragingly, some of the major European economies are seen to be turning a corner, many problems remain. Europe continues to lose ground in comparison with key developed economies. Structural problems persist. Unemployment remains high, particularly long-term and youth unemployment, while productivity and innovation is low. Europe’s recent growth record and its marked lack of resilience to shocks are worrying. The underlying factors contributing to Europe’s slow growth and economic performance stem from structural policy weaknesses. The right policy response is therefore the pursuit of structural reform to promote employment, raise productivity and increase flexibility in labour, product and capital markets.

My Lords, I beg to move that the House do now adjourn during pleasure until 2.39 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 2.33 to 2.39 pm.]

Armed Forces Bill

House again in Committee.

Clause 334 [Composition and procedure of service complaint panels]:

Page 168, line 41, at end insert “or

( ) an independent member (see subsection (7));”

The noble Lord said: Amendment No. 165 and the other amendments in my name in this group are designed to ensure that there is always at least one independent member on a service panel. We welcome the Government’s response to the Blake report’s recommendation for an independent panel member, but we are disappointed that the Bill is phrased so that an independent member is optional rather than part of the system. These amendments ensure that the recommendations that resulted from the Deepcut inquiry come into being. I beg to move.

Amendments Nos. 165 to 169 require an independent member on all redress panels and allow the Secretary of State to require more than one in prescribed cases.

Our starting point is that at the heart of the relationship between service personnel and the chain of command is that the chain of command is responsible for investigating wrongs and remedying them. In some cases, the balance moves in favour of an independent element, particularly where the need for transparency is paramount or where outside expertise is beneficial. We have already identified the key areas where an independent element is needed: where a complainant alleges unlawful discrimination or harassment, bullying, which can amount to harassment in some instances, or a wrong done involving bias or other improper behaviour. We do not intend to limit the cases to these. There will certainly be other cases in which expertise or independence calls for an independent element. Moreover, we propose to ensure independent oversight of the working of the system by the appointment of a statutory service complaints commissioner, who will report directly to the Secretary of State.

We think that in this way we shall achieve the right balance between, on the one hand, independence and outside areas of expertise and, on the other hand, the need for the services to respond to complaints and for complaints to be considered with an understanding of the service context. I hope that, on the strength of my response to the proposals, the noble Lord will feel able to withdraw the amendment.

I am grateful to the Minister for his response. It does not really answer the concerns of the Deepcut inquiry because we need an assurance that an independent panel member will be available to provide consistency through all such complaints. I was surprised that the Minister referred to,

“where the need for transparency is paramount”.

Are there occasions when the Ministry of Defence would rather not be transparent? I shall not press this matter in Committee, but I give notice to the Minister that I shall return to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 166 to 169 not moved.]

Clauses 334 and 335 agreed to.

After Clause 335, insert the following new clause-


(1) This section applies where the Service Complaints Commissioner (“the Commissioner”) considers that any communication made to him contains an allegation that a person named in such a communication-

(a) is subject to service law and has been wronged in a prescribed way; or (b) was wronged in such a way while he was so subject. (2) The Commissioner may refer the allegation to the officer whom he considers to be the relevant officer.

(3) If the allegation is referred under subsection (2), the officer to whom it is referred must as soon as is reasonably practicable-

(a) inform the person that the allegation has been so referred; (b) ensure that the person is aware of- (i) the procedure for making a service complaint; and (ii) the effect on the making of service complaints of any regulations made by virtue of section 332(5)(b) (time limits for service complaints); and (c) ascertain whether he wishes to make a service complaint in respect of the alleged wrong. (4) Regulations made by the Secretary of State must provide that where the allegation is referred under subsection (2), the prescribed person must within the prescribed period notify the Commissioner of prescribed matters.

(5) In this section-

“prescribed” means prescribed by regulations made by the Secretary of State; “relevant officer” means the officer to whom a service complaint made by the person in respect of the alleged wrong is (under regulations made under section 332) to be made; “service complaint” has the same meaning as in that section.”

After Clause 335, insert the following new clause-


(1) The Service Complaints Commissioner (“the Commissioner”) must prepare and give to the Secretary of State, as soon as practicable after the end of each relevant period, a report as to-

(a) the efficiency, effectiveness and fairness with which the system under this Part for dealing with service complaints has operated during that period; (b) the exercise by the Commissioner during that period of his function under section (Referral by Service Complaints Commissioner of certain allegations) of referring allegations; and (c) such other aspects of the system mentioned in paragraph (a), and such matters relating to the function mentioned in paragraph (b), as the Commissioner considers appropriate or the Secretary of State may direct. (2) The Secretary of State must lay before Parliament each report under subsection (1) received by him.

(3) The Secretary of State may exclude from any report laid under subsection (2) any material whose publication he considers-

(a) would be against the interests of national security; or (b) might jeopardise the safety of any person. (4) The Secretary of State may require the Commissioner to prepare and give to him a report on-

(a) any aspect of the system mentioned in subsection (1)(a); (b) any matter relating to the function mentioned in subsection (1)(b). (5) In this section-

“relevant period” means a period of one year beginning with- (a) the date this section comes into force; or (b) an anniversary of that date; “service complaint” has the same meaning as in section 332.”

On Question, amendments agreed to.

[Amendment No. 170 not moved.]

Clauses 336 to 339 agreed to.

After Clause 339, insert the following new clause-


The Secretary of State shall ensure that records are kept of every person subject to service law who is evacuated from an overseas operational theatre as a result of injury or serious illness.”

The noble Earl said: Recently, there has been concern, inside and outside Parliament, about the casualty rate in current operations. We are told that figures are not available or not collected, which is convenient. I have resisted the temptation to table suitable Written Questions using inside knowledge of the system; in other words, I have not asked the right questions. How can Ministers balance the benefits of current operations against the human costs, when they do not know how many casualties we are sustaining and their severity? We know perfectly well that our servicemen have been sustaining serious, life-changing injuries. It is not healthy for our democracy if we do not know the extent of those injuries, so this amendment requires the Secretary of State to keep records.

At Question Time on Tuesday, the Minister claimed that on average 50 members of the Armed Forces are hospital inpatients. Is he absolutely confident of those figures, and do they include people staying at Headley Court? I beg to move.

Amendment No. 172, tabled in my name, is grouped with Amendment No. 171, although it deals with an entirely different subject. It deals with an issue raised by Nicholas Blake QC in the Deepcut review. Recommendation No. 30 of that review was that there should always be an inquest or, in Scotland, a fatal accident inquiry, into the sudden death of a soldier, wherever the death occurs, and my amendment reflects that recommendation. However, the Minister wrote to my noble friend Lord Garden on 9 October and pointed out that work is being done on that recommendation, that it has not yet reached fruition, and that it should be more properly considered under the Coroners Bill that is to be brought before Parliament. If I can have an assurance to that effect this afternoon, I do not think it will be necessary for me to pursue my amendment further.

With Amendment No. 171 my noble friend Lord Attlee raises an important point about the maintenance of records. I support his amendment. There has been considerable concern in the country about the casualty figures, and it is vital that records are kept.

I support this amendment because I remember that at the beginning of the Gulf War inquiries many details of records had vanished because the IT arrangements were not effective. I sincerely hope that there is now no danger that important records could be lost, through no ill will but a failure to control the IT aspect of record-keeping.

In war, if you are killed, you are killed; if you are wounded, you are wounded; and if you are injured, you are injured. Occasionally, there is a bit of a muddle in reports from the MoD about wounded and injured. You can be injured in an operational area; you can also be injured playing soccer for your team in England. It is perhaps convenient, to put it politely, that these days many injury figures are given but not many are given for the number wounded—and there are quite a lot of wounded servicemen.

I have listened carefully to noble Lords and I recognise absolutely the deep importance of recording casualty figures.

Our argument that Amendment No. 171 is unnecessary and inappropriate for primary legislation is based on our belief that we are collecting and communicating the data on the casualty figures appropriately. Nevertheless, I understand the concern raised this afternoon. I will provide the Committee with further information on initiatives being undertaken in the department. For example, we will be introducing a defence medical information capability programme to strengthen the processes in this area. Given that I make that commitment this afternoon, I ask the noble Earl to withdraw his amendment.

The noble Earl asked about the answer I gave during Starred Questions. Our data show that, on any given day throughout the year, in the United Kingdom the Ministry of Defence has on average fewer than 50 inpatients in any type of care facility. If the noble Earl wishes me to give further information on that, I would be happy to do so.

The noble Viscount, Lord Slim, makes a strong point about the potential for confusion in describing those who are wounded and those who are injured. That is a very important point. In some of the debates I have seen in the media about this there has been confusion. The Ministry of Defence needs to do everything it can to make it absolutely clear where people have been killed in action, where they have been wounded and to differentiate between those who may have been injured for another reason.

On Amendment No. 172, I am happy to give the noble Lord, Lord Thomas, the assurance he seeks. I ask him, on that basis, not to press the amendment.

I thank the Minister for his response to the short debate. My only observation is that if the MoD is collecting and communicating the data, why is there so much concern in Parliament and the media? I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 172 not moved.]

Clauses 340 to 344 agreed to.

After Clause 344, insert the following new clause-


(1) A person commits an offence if, in relation to the offer of employment by him at an establishment in Great Britain, he discriminates against another on the ground that that person is or may become a member of Her Majesty's reserve forces-

(a) in the arrangements he makes for determining who should be offered that employment; (b) in the terms on which he offers him that employment; or (c) by refusing or deliberately omitting to offer him that employment. (2) A person commits an offence if he discriminates against a person employed by him at an establishment in Great Britain, on the ground that that employee is or may become a member of Her Majesty's reserve forces-

(a) in the terms of employment which he affords him; (b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately not offering him access to them; or (c) by dismissing him, or subjecting him to any other detriment. (3) A person guilty of an offence under this section is liable upon conviction to a fine not exceeding £25,000 and such damages as the court may award.”

The noble Earl said: Our reserves, regular or volunteer, are a vital component of our Armed Forces. As we know, they are used regularly and continuously on operations. It seems to me that pregnant mothers enjoy superior employment protection compared to reservists returning from compulsory mobilisation. It is not surprising, therefore, that there are serious recruiting problems in parts of the volunteer reserves, particularly for officers, where the situation is best described as “dire”.

Take Sergeant Knight, for example. He returned from Operation TELIC in 2003. He was offered menial employment with his old employer, so he took it to the reinstatement committee provided for under the Reserve Forces (Safeguard of Employment) Act. He had to pay for his own legal team and advice. There were no MoD observers at the reinstatement committee; he was on his own. Interestingly, earlier today the Minister said that, during a prosecution, a serviceman will invariably be accompanied by an officer, but in a reinstatement committee, where the volunteer is trying to get back his proper employment prospects, he gets no help. I always thought that if I were compulsorily mobilised for an operation and I did not get my job back the employer would be in some difficulty because he would have the MoD on his back; but it does not seem to be that way.

Largely due to the lack of support from the MoD, Sergeant Knight was unsuccessful in getting his job back. He is now out of pocket several thousands of pounds of legal expenses. The support of the MoD, particularly the Director of Reserve Forces and Cadets, to this excellent volunteer has been pathetic. What is the Minister going to do about it? I beg to move.

My name is on this amendment and I wholeheartedly support it. Since 1 April 2004 new recruits to the volunteer Reserve Forces are required to permit their units to inform their employers about their membership. They must also consent to any new employer being informed. At the same time no steps have been taken to prevent what is admittedly a very small minority of employers from discriminating against them as a result of this information.

We owe our full support to our reserve and Territorial Army members who have been serving their country in Afghanistan and Iraq. It is extraordinary that a small number of them have returned to find their jobs taken or their employment opportunities limited. It also seems quite wrong that a significant proportion of those who leave the Reserve Forces give pressure from employers as a reason for doing so. For those reasons I ask the Government to give this amendment serious consideration.

I am deeply sympathetic to the tales told us by the noble Earl, Lord Attlee. Of course his amendment does not address the Ministry of Defence’s lack of support to individuals who found themselves with job problems when they returned from service. That is a question of implementation rather than new legislation.

The legislation proposed in Amendment No. 173 seems wide ranging; in fact, really an invitation to litigation:

“A person commits an offence if … he discriminates against”

a person, on the ground that he,

“may become a member of Her Majesty’s reserve forces”.

This opens up the possibility of a number of cases which, in the end, would not be in the interests of the Reserve Forces because employers would become wary about people using the excuse of discrimination because they thought they might join the reserves. So I would like the Minister to address the real question here: we have some legislation already, there is a problem, the Ministry of Defence is not giving our reservists enough legal assistance when they need it, and the resources necessary. That would be better than drawing up extra legislation, which would still leave the problem of how we resource people to get cases heard appropriately.

I had not anticipated taking part in the debate on this amendment. My noble friend Lord Attlee and the Minister might like to be aware that, as chairman of the National Employer Advisory Board for the reserves, this subject has arisen in a number of different ways over the past few years. I can well understand the superficial attractiveness of the idea, but I am not sure that it really holds water when analysed, largely because, as the noble Lord, Lord Garden, said, the provision is drawn extremely widely.

However, other nations take a rather different view. I know that there is pronounced legislative activity in the United States—and, I think, in Australia, but I shall check that—to legislate on the lines of the amendment. It may be helpful to the Minister if I say that my board is considering that. We are not conclusive about any particular resolution to the problem, but the indications so far are that further legislation would not necessarily do what everyone hopes. The issue is not closed. I certainly understand the spirit in which the amendment is moved, but I am not convinced that it is the right answer.

I absolutely accept the importance of the matter. As noble Lords have described, it is a matter of whether the issue is best addressed by legislation or by focusing on policy and implementation—the actions that the Ministry of Defence takes in support of our reservists. If I may say so, it is important for us to recognise the importance and central role that our reservists play in the Armed Forces. We have changed our policy to make reservists an integrated part of our fighting effort—for example, with the Territorial Army—as part of the one Army concept. Some noble Lords may have seen the advertising on the television to reflect that.

We recognise that there is an issue here, but we should not regard it out of proportion, if I may say so. I shall give some numbers. Since 2003, 14,500 reservists have been called out to support operations. Of those called out, 28 reservists have applied to have their cases brought before a reinstatement committee. Fourteen cases were withdrawn, six were settled before hearing, five were won by the applicant and three by the employer. Those are small numbers but are nevertheless very important. From my experience both latterly in the Ministry of Defence and previously in industry, I recognise the responsibility that we in the Ministry of Defence have to communicate very clearly to industry and employers what are their responsibilities. I take on board the points that have been made asking whether the Ministry of Defence is doing enough.

With regard to the specific case raised by the noble Earl, Lord Attlee, concerning Sergeant Knight, if he would care to write to me, I shall look into the matter and take it up with my ministerial colleagues.

I agree with the noble Lord, Lord Garden, that this is about implementation, not legislation.

I ask the noble Earl to withdraw his amendment after hearing what I have said.

I have to agree with the analysis of my amendment given by the noble Lord, Lord Garden. If there were 28 reinstatement committees, why were they not invariably attended by an officer to support the serviceman? It is always a pleasure to receive faint praise from my noble friend Lord Glenarthur. It is a shame that I cannot ask him questions about volunteer reserve recruitment, especially officer recruiting.

I agree that further legislation may well be counterproductive, but the issue is to use the legislation that we have in place and to ensure that we provide heavy support for those few cases—we are talking about only 28 cases that ended up in the reinstatement committee. We must be right behind those volunteer reservists if they have to resort to the reinstatement committee. I am disappointed by what we have done in the past and I hope that we can do better in future. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 345 to 347 agreed to.

Schedule 12 agreed to.

Clause 348 [Power to take affidavits and declarations]:

Page 178, line 5, leave out “Supreme Court” and insert “Court of Judicature”

On Question, amendment agreed to.

Clause 348, as amended, agreed to.

Clause 349 agreed to.

Schedule 13 [Protection of children of service families]:

Page 236, line 7, leave out “Court Martial's” and insert “court's”

Page 236, line 12, leave out “Court Martial's” and insert “court's”

Page 236, line 40, leave out “Court Martial's” and insert “court's”

Page 237, line 1, leave out “Court Martial's” and insert “court's”

On Question, amendments agreed to.

Schedule 13, as amended, agreed to.

Clauses 350 to 354 agreed to.

After Clause 354, insert the following new clause-


(1) This section applies in relation to any person who was executed for a relevant offence committed during the period beginning with 4 August 1914 and ending with 11 November 1918.

(2) Each such person is to be taken to be pardoned under this section in respect of the relevant offence (or relevant offences) for which he was executed.

(3) In this section “relevant offence” means any of the following-

(a) an offence under any of the following provisions of the Army Act 1881 (c. 58)- (i) section 4(2) (casting away arms etc); (ii) section 4(7) (cowardice); (iii) section 6(1)(b) (leaving post etc without orders); (iv) section 6(1)(k) (sentinel sleeping etc on post or leaving post); (v) section 7 (mutiny and sedition); (vi) section 8(1) (striking etc superior officer); (vii) section 9(1) (disobedience in defiance of authority); (viii) section 12(1) (desertion or attempt etc to desert); (b) an offence under any of the following provisions of the Indian Army Act 1911 (Indian Act, No. 8 of 1911)- (i) section 25(b) (casting away arms, cowardice, etc); (ii) section 25(g) (sentry sleeping on post or quitting post); (iii) section 25(i) (quitting guard etc); (iv) section 27 (mutiny, disobedience, etc); (v) section 29 (desertion or attempt to desert). (4) This section does not-

(a) affect any conviction or sentence; (b) give rise to any right, entitlement or liability; or (c) affect the prerogative of mercy. (5) Any reference in this section to a provision of the Army Act 1881 (c. 58) includes a reference to that provision as applied by any enactment, wherever enacted.”

The noble Lord said: As I reported to the House on 14 June during Second Reading, the Secretary of State decided to re-examine the issue of pardons for World War 1 soldiers. The outcome of that review was subsequently announced by the Government on 16 August, when we said that we intended to seek parliamentary approval for a statutory form of pardon for servicemen executed for a range of disciplinary offences during the First World War. The purpose of the amendment is to provide for that.

The Government are very much aware of the considerable feeling in this country and abroad for the British and Commonwealth servicemen who were executed in the tragic and horrific circumstances of the First World War. A great deal of consideration has been given over the years to the best way in which to address that issue. Pardons under the royal prerogative were considered as part of the review of the subject initiated in 1997 by Dr John Reid, then Armed Forces Minister. The review concluded that few, if any, of the cases would succeed if the standard test for prerogative pardons was applied. An important factor leading to that conclusion was the sparseness and unevenness of the surviving evidence across the group of cases.

Noble Lords expressed their strong concerns about the matter most clearly to me when we debated it in this House on 9 January. As I undertook to do at the time, I reflected those concerns to my right honourable friend the then Secretary of State for Defence. Having reviewed the situation again, we believe that we should now act to remove the dishonour that still taints the memory of those servicemen who suffered execution and is still felt all too heavily by their families today. It is time to recognise that execution was not a fate that they deserved but one that resulted from the form of discipline believed to be necessary at the time for the prosecution of the war. We believe that this can be achieved by the clause.

In speaking to the amendment, I stress that the Government do not intend to call into question the actions of officers who were responsible for discipline. The commanders at that time were themselves faced with extremely difficult and unpleasant duties that none of us would envy. The clause does not stand as a judgment of the way in which they did their duty. The amendment avoids the difficulties that would be posed by assessing individual cases. It does not seek to rewrite history by quashing convictions or sentences. Its aim is to lift the stigma that has been attached to these executions for so long, affecting the lives of the servicemen’s families for many decades. This will be the moral effect of the measure if passed by Parliament.

The amendment provides that all servicemen executed for certain offences, such as desertion and cowardice, committed between 4 August 1914 and 11 November 1918 shall be taken to be pardoned. The names of those affected are not listed in the clause because our records are insufficiently comprehensive to be able to do this. However, if the amendment is passed, we plan to place a formal record of the pardon alongside the relevant court-martial files, where we hold them. This will be visible to anyone viewing those files in the future, and it will be an important measure in helping to restore the memory of these men.

I understand the concerns of the House that we announced our decision to seek a statutory pardon during the Recess, but I assure noble Lords that we made the announcement at the earliest possible opportunity following our review of policy so that we could commence the necessary consultation and drafting for an amendment to be included in the Bill. I am sure noble Lords will agree that, having reached a decision, and given the age of some of those campaigning for pardons, the Government should not have delayed on this matter until another opportunity arose in the legislative timetable. For the same reason, we also intend the amendment to take effect on Royal Assent.

The subject of pardons is emotive, and the public feel very strongly about it. There is also considerable interest in the matter in the House. It seems appropriate, in this year that saw the 90th anniversary of the Battle of the Somme, which claimed so many victims, that we should take this opportunity to recognise other victims of the First World War. On a particularly poignant note, the 90th anniversary of the execution of Private Harry Farr falls on 18 October, less than a week from now. I have read Private Farr’s file, and anyone who has done so cannot fail to be moved by it. I am glad that we have had an opportunity to revisit this matter and to find a solution.

Private Farr’s family have been at the forefront of the campaign for pardons, and I take this opportunity to pay tribute to the important role that they have played. I also pay tribute to my noble friend Lord Dubs for his interest in and support for this cause, and I hope that we will be able to have his support for our amendment. It is also right that I use this opportunity to thank the noble Lord, Lord Campbell of Alloway, who supports the amendment. I trust that all noble Lords will be able to support this important amendment, which I believe will bring closure to all families who have had to live with the stigma of these executions since the First World War. Noble Lords will be aware from an open letter from some of those families that they welcome this move to restore their men’s reputations. I beg to move.

I very much welcome the government amendment and what my noble friend has said. I am grateful to him for the part that he has played in this, and to the Secretary of State, with whom I had several conversations in the summer about the amendment. I also pay tribute to the campaigners, who have worked very hard to achieve this end, and to my honourable friend Andrew Mackinlay in the other place, who has worked for longer than I have to seek the pardons that we now have the power to effect.

The facts are well understood and I do not want to take any more time of the Committee, except to say that we are talking about young men, many of whom fought bravely for this country and some of whom were underage and lied to be allowed to join our forces. Sometimes the courts martial were very brief, and often in the heat of the fighting in the trenches there was no possibility of a defence or witnesses. The families were left with an understandable sense of injustice that men, some of whom we would describe as traumatised and shellshocked—I do not speak medically—were then executed. For many years, the families have had a sense of grievance that people who fought for this country should have been stigmatised and punished in this way.

We know that documentation and records do not exist for all the cases, so it is right that the pardon should extend to all of them. To pick out individuals on the basis of sometimes poor documentation would have been an invidious process and would not have given people the sense of closure which this all-embracing amendment does. Like my noble friend, I do not want to criticise the officers who were members of the courts martial that led to these results. None of us in the calm of today can understand what was going on in the trenches, although some of us might understand from books. The officers in the courts martial were doing what they saw was their duty on the basis of the mood, understanding and attitudes of the time, so I do not want pardons for one lot of people to be seen as somehow vilifying others. If there is to be closure, it must be for all concerned, so all the families of the victims as well as of the officers in the courts martial can have the sense that we have now brought this matter to what I hope will be a conclusion—I will not call it happy—that ends the stigma under which the families of these men have suffered. I warmly support what the Government have done.

We all sympathise with the descendants of the soldiers who were executed during the First World War for various disciplinary offences. However, there are certain considerations which, as an historian, I believe should be taken into account. I also want to ask the Minister some questions, to which I shall come in due course. In his letter to me of 27 September, the Minister wrote:

“The amendment will not overturn the original convictions, but it will provide that the persons executed are taken to be pardoned so that the dishonour and stigma are removed”.

Surely it is the offence which dishonours someone and confers stigma, not the sentence for that offence.

Of the 3,000-odd offences where the sentence of death was passed, no fewer than 2,700 were commuted. Many of those soldiers served considerable terms of imprisonment instead. They are not included, apparently, in this pardon. Surely it is completely illogical to pardon those soldiers who committed the most serious offences, which the relevant authority refused to commute, and at the same time not pardon the offences which were obviously considered to be less heinous, thus leading to those sentences being commuted. What about the descendants of the 2,700? Indeed, what about the hundreds of thousands of soldiers who died with their faces to the enemy and their descendants?

If this amendment is passed, does it confer a legal pardon for the offences of the executed 300? From the perspective of military discipline, surely it must be wrong to go back and impose modern values and sensitivities on a proper system which was operative 90 years ago; that is, between three and four generations ago. Does that not set a precedent that could come back and haunt us?

I notice that the question of compensation is not dealt with in the amendment. Is the Minister quite sure that this does not lay the Government open to claims for compensation at a later stage? Only 1 per cent of those tried for a capital military offence in World War I were subsequently executed, and as few as 10 per cent of those sentenced to death were actually executed. As the Minister has mentioned, in 1998, Dr Reid conducted deep research into a third of the cases we are considering today. He concluded that there should be no blanket pardon because it was impossible to distinguish those who had deliberately let down their country and comrades from those who were not guilty of desertion or cowardice. What has happened with regard to evidence since 1998? Surely, in considering whether a group of people should be pardoned, there ought to be sufficient evidence in each case. As has been admitted, that is most clearly lacking here.

There is a myth that these executions were indiscriminately carried out pour encourager les autres. The facts, as far as we know them, rather suggest that great consideration was given to whether sentences of execution should be commuted. The fact that nine-tenths of those sentenced to death escaped with lesser sentences also suggests that compassion was shown where appropriate and as often as possible.

I fear that this is a political gesture to help people to feel more comfortable about the past. In 1916—or 1914 or 1918—different customs, different standards and different morals were the norm. The principle of rewriting history must be totally wrong. As Wordsworth wrote some 150 to 200 years ago:

“For old, unhappy far-off things,

And battles long ago”.

I declare an interest in these two amendments in that my grandfather was the commander-in-chief of the day who had the difficult task of making the final decisions in these cases. I very much welcome the Minister’s confirmation that this pardon will not cast any doubt on those who took those very difficult decisions. The means of maintaining discipline was prescribed in the Army Act, renewed every year by Parliament, which determined what actions by troops under command were criminal offences and the appropriate punishments for those crimes. Discipline as exercised by the British Army in the First World War was considered at the time to be fair. That was recognised by all ranks and was effective. The British Army was the only one of the main participants in the war not to experience major mutinies. An essential element in deterring widespread desertion was—unlike the French—the very sparing use of the death penalty. My grandfather refused to confirm 90 per cent of the death sentences that came up in front of him. Despite what the noble Lord, Lord Dubs, said, with shellshock very much in mind, he took explicit medical advice on each case.

Where will the proposed pardon leave this 90 per cent? It is around 2,700 soldiers. What about those found guilty of the same offence who were not shot but reprieved and spent a good deal of time in prison? A pardon would leave some soldiers who were rightly convicted pardoned while others who may well have been wrongly convicted are not pardoned. Within the 360 executions for military offences are some very guilty men who, from the evidence, did intend to commit the offence and were responsible for their actions. Furthermore, some were either multiple offenders or had used deception to evade arrest, and it is quite wrong to grant pardons to those who were guilty of outright cowardice. They declined to risk their lives when others did. What message would this pardon send about the kind of standards we would like our soldiers to abide by today?

We have to accept that past societies did things differently, even if we morally disagree with particular actions today. Otherwise, as my noble friend said, history will be endlessly rewritten by Governments of different political stripes. This is a controversial issue that deserves to be treated with careful sensitivity, and we cannot withhold our sympathies from the descendants and relatives of those who were executed. Wherever possible, relevant individual cases should be reviewed and a pardon considered. But I cannot support a blanket pardon.

Perhaps I may speak in support of the amendment, as my name is on it. I put my name on it because I received a letter and the amendment from the noble Lord, Lord Drayson. Let us face it: none of us was there, and none of us really knows what went on. But my father was there. When I was a child he told me what went on, and as soon as I saw the letter, it all came back, because children store away things in the mind that occasionally return.

I am not a historian and I do not read much history, but I remember very well the essence of the circumstances. In the light of that, this amendment is a totally fair and proper arrangement for the servicemen and their families who, let us face it, were always the prime concern of the field marshall. It affords no form of criticism of the field marshall, although it has been used by so-called historians, none of whom was there. We should all, as a nation, be grateful to this day for what the field marshall did.

In essence, the circumstances as I was told them were that morale was cracking, discipline was on the line, and it was a scene of daily attack. The French had started to desert. But for the intervention and, as my father put it, the compassionate dealings of the earl marshall, discipline would not have been restored. It was also put to me that the earl marshall was greatly admired by the men for having done that and, as I say, is totally unworthy of the criticisms of so-called historians or of a technical analysis based on material from so long ago that it cannot be checked or verified. In these circumstances, the amendment affords the benefit of addressing a mistake or mistakes which inevitably were made. In a way, mistakes have ever been the collateral damage of warfare, and still are. This gives credence to what is owed to the families without in any way questioning the convictions—which you cannot do en masse—or in any way criticising the field marshall. I support the amendment.

I am very grateful for the outstandingly sensitive speeches that we have heard already in this short debate. With great deference to my noble friend Lord Luke, I cannot agree with his suggestion that it is only the offence that brings dishonour. To be shot at dawn before your comrades is to experience the very pinnacle—or perhaps the very nadir—of humiliation and dishonour. I welcome the new clause and I am very glad that the Government, encouraged by the noble Lord, Lord Dubs, and perhaps by the example of New Zealand, have taken this course.

But it is not an easy question and it is deserving of careful analysis. To modern minds, it is rather surprising that the British Army in 1914 went to war with so wide a swathe of offences capable of attracting, in the discretion of courts martial, a capital sentence. The offences are listed in the new clause with one exception—treachery. Probably the reason for that is that there was no execution for that offence in the First World War.

But then was then and, in the hardly imaginable circumstances in which much of that war was fought, it was generally felt within the Armed Forces that the wide availability of capital punishment was necessary for the maintenance of discipline and to fortify the courage of others. I am confident that that was the view of my own father, who was a front-line officer in France and Flanders from 1915 onwards, and he was a kind man. I do not think that we are today in any proper position to challenge, let alone criticise, the practical beliefs of that terrible time. It is interesting to note that, within fewer than 12 years from the end of the war, Parliament had limited the military offences punishable with death to treachery and mutiny alone.

My support for the clause does not derive from any desire to rewrite history. Indeed, the clause makes it specifically clear that it is not doing that; it does not affect any conviction or sentence. My support derives from the gross inadequacy of the procedures—which were required and supposed to be judicial in character—by which the law in respect of those offences was enforced. By any objective standards, they were generally travesties of justice. If anyone doubts that, I recommend them to read a book published in 1983 written by His Honour Judge Anthony Babington QC, who had a gallant record in World War II and was gravely wounded. He conducted meticulous research into the 318 traceable executions in the British Army relating to the war. Perhaps I may quote five sentences from the book’s preface. It states:

“Viewed by the standards of today few of the executed men received the most elemental form of justice. They were tried and sentenced by courts which often regarded themselves as mere components of the penal process and which, until the final year of the war, were asked to perform a complex judicial function without any sort of legal guidance. The cases for the accused were seldom presented adequately and sometimes were never presented at all. If crucial matters were raised which might have established their innocence they were rarely investigated by members of the court”.

I omit two sentences for brevity’s sake. It continues:

“What made it even worse was the fact that the decision of a court martial was virtually unappealable”.

It is this which, in Judge Babington’s words, has,

“ever since given rise to a profound uneasiness in the national conscience”.

And he comments that that uneasiness was,

“more than justified”.

It is absolutely right and fair that the point should have been made that the commander-in-chief commuted all but 10 per cent of those capital sentences. I very much agree with the comments that there is no implicit criticism of that great man. But some, I know, will fasten on the words:

“Viewed by the standards of today”.

Where living people—related families—are suffering continuing distress from the outcome of proceedings that today we see in the main to have failed the most elementary tests of fairness, surely it would be wrong to say to them, “We will do nothing to palliate your pain; those were the admittedly woeful standards of that time, but for your relatives—and for you—that must remain simply bad luck”. I do not think that I can find any towering principle in that.

It is not necessary to take special account of the extreme youth of so many of these soldiers, nor the fact that many of them had volunteered to serve, sometimes falsifying their age to do so. There is quite enough already to show that the humane and just, as well as the constitutionally sound, course is not to overturn the convictions, not to overturn the sentences, not to impugn the decisions of the commander-in-chief, but to effect posthumous pardons for these unhappy men. I support the new clause.

I share the views that have just been expressed by the noble and learned Lord, Lord Mayhew of Twysden. I recollect the book from which he quoted, published more than 20 years ago. The only thing that I would add to the useful quotations and points made about that exposé of First World War court martial procedures is that, when Judge Babington began to interest himself in this subject more than 30 years ago, it was not possible to get at the files; it was not possible to research the issue until Lord Callaghan changed the set-up when he was Prime Minister and enabled the learned judge to get at the files and write the books from which the noble and learned Lord has so helpfully quoted.

The judge was talking about the hugely stressful conditions of the First World War when he referred to the inadequacies of court martial procedures at the time. In my view, the Government are right to bring forward this new clause, which must have been very difficult to draft. The points made by the noble Lords, Lord Luke and Lord Astor of Hever, are perfectly valid in the sense that this is not a comprehensive amendment dealing with the rights and wrongs of all the various executions and the convictions that did not result in execution. It is not trying to deal with that comprehensively. The 300-plus pardons proposed will, however, help to remove the most extreme dishonour, stigma and indignity that the First World War executions created, which have been inherited by the men’s families and descendants and have continued, as we know from the campaign about this, to oppress them. Nobody has mentioned war memorials, but excluding the executed men from the list of those killed in the First World War is one of the great features of stigma and indignity to which the families have referred.

As has been said, the Government are not impugning the individual convictions of individual men or the individual sentences; they are not even being critical of the inherently hurried and hasty procedures that led to the convictions and executions. A very fine line is being drawn. It is by no means perfect, as those who are not keen on this amendment have suggested. The pardon that is being proposed is, as I understand it, a very special, peculiar statutory recognition that a line should be drawn. It should be drawn because in so many cases—not in all—execution now seems to have been an unjust outcome for the offences committed in those hugely stressful conditions of World War I. I support the amendment.

The language of pardon is rooted in our Christian history. What pardon does is clear the agenda. In this case, it lifts a cloud that has drifted from the First World War across our history. It has the genius that it does not require us to pass judgment on anyone. Indeed, it lifts the burden not just from the families of those who were executed, but from those who may carry the burden of having required that to take place. So everyone’s burdens are lifted when you carry forward a pardon.

While it is very important never to take away the burden of responsibility that lies on every individual for their own actions, in war in particular the community bears a collective responsibility for the atmosphere in which the event is conducted. It seems therefore to be entirely right that Parliament should take this action as a collective act of responsibility for clearing an issue in the past that has put a burden on all points of the circle that surrounds these events.

Perhaps I may be a little personal about this, because this is a sensitive amendment which has been introduced in an intelligent way. However, I was always told that history could not be written until the last person who was alive at the time was dead. We can look at past perfect or future perfect, but most of us will have no memory of those times or—I will probably become a little emotional—just a second-hand memory.

My grandfather won the Sword of Honour at Dartmouth and was invalided out of the Navy just before the war, and he wanted to fight. He had a brother-in-law, my uncle Sir Stafford Cripps, who also wanted to fight, but he was too ill to do so. The two of them got together with others in a double-decker bus and went off to the front. When they arrived, they asked, “What can we do?”. They were told that they could be medical orderlies. They then wrote a letter back to their father-in-law, JC Eno, who had invented Eno’s Fruit Salts, asking for some help. Eno went to his car-maker and had a special ambulance made, which he sent out to the front, and my grandfather and my uncle both became stretcher-bearers.

My grandfather would talk to me at the age of six and seven and tell me what it was like—that he had to go out to pick people up from no-man’s-land, which as a child I called “nobody’s place”. He had to try to find limbs to match people who had been wounded and bring them back. He took people in to have limbs amputated by surgeons and then buried the limbs, only to find that they had been dug up by wild dogs. He said that this was the most terrible time that anybody could have. Sometimes, they would have to go with a stretcher to collect someone who had been shot at dawn. He said that, on one occasion, a man was standing there whom he heard say that he did not want to be blindfolded in any way. He brought him back and there was his brother, who was still alive.

Obviously, you cry as a child sometimes when you try to think as a man. You realise that these were terrible, emotional times. My grandfather and Uncle Stafford—he would never talk about it afterwards—would try to explain that, while these people had been wounded or shot, all people at the front suffered from emotional stress; that mental illness was the same as physical illness; and that there were people who actually prayed that they would be wounded so that they could escape. Whatever the law may have been at that time, and whatever the rules were, you could almost say that the immortal memory of those awful times is more important. We who did not live in those times will never know them, but I will always remember my grandfather. I therefore support this amendment entirely.

I find this a very difficult topic, and obviously others in your Lordships’ House have been considering it deeply—including the Government, given that the position of this amendment is the complete reverse of that expressed by them during the Starred Question on 9 January, when passions in the House were high. The problems outlined by the noble Lords, Lord Luke and Lord Astor of Hever, are real concerns that one has when trying to put this narrow pardon into a Bill that is about the future of military law, rather than changing the past. However, I have listened carefully to the debate, and I find myself convinced by the legal minds that have told us that doing it this way will be all right—the noble Lords, Lord Campbell of Alloway and Lord Borrie, and the noble and learned Lord, Lord Mayhew of Twysden—and the thoughtfulness behind this measure. It is clear that whatever precedent it may set, it will be of key importance to the families, who will see it as a great comfort if we pass this.

I make one observation, however, as we introduce this measure in what is a strange place; that is, in the Armed Forces Bill for the future. It reminds us that in earlier times legislation was made by people who thought the death penalty was appropriate for these offences. We do not have the death penalty any more; instead, we have life imprisonment. I remind your Lordships that when we discussed a number of these offences earlier in the Bill, there was great enthusiasm for life imprisonment. When we come back on Report, perhaps we should ask whether we are repeating the mistakes of our forefathers in some respects, and whether we want to prevent, in another 90 years, your Lordships’ House—if it still exists—having to make retrospective legislation to change decisions we make about this Bill.

It will be for each of your Lordships to decide how they feel about this subject, but, listening to the debate, I have been moved to change my view, and I will support the Government’s amendment.

Perhaps we could debate whether a Government or politicians should tamper with and sanitise history, but we do not need to do so today. One or two noble Lords have mentioned their fathers and grandfathers. I remember having this conversation with my father. I can recall it quite well. He said to me, “I think the problem was that if you were court-martialled for this, you probably didn’t have much of a chance”. Rather like the noble and learned Lord, Lord Mayhew, said, it was the court martial system, its speed and so on. Then my father said one thing else: “Mind you, I think probably one or two of them deserved it”. That is probably true.

In this instance, I go along with the noble Lord, Lord Dubs. He and I have spoken fairly briefly on the matter. I do not consider that enough has been said about the people who had to put these laws into action. Fortunately, Members of the Committee have today rightly spoken about exonerating all those who sat on the courts martial. It was not much fun being on such a court martial, particularly if an officer had fought through the night and had been pulled back to sit on a court martial.

We should look forward. As the noble Lord, Lord Garden, rightly said, we are considering a forward-looking Bill. If a soldier has stuck it out in the line for a long time and has done his duty—“done the business”, as they say today—he does not think much of a chap who deserts or throws his rifle down, lies in the bottom of a slit trench and takes no further part in the battle. Whether that is cowardice or desertion is probably for a lawyer to decide, but men who stick out a battle do not think much of a chap who behaves like that. Therefore, when making law on mutiny or desertion, as we are doing in the Bill, we must think of that aspect. It is not just a case of lawyers or governments making law but of the view of men who behave perfectly correctly in battle not thinking much of a chap who chucks in the towel. We must be very careful not to make a habit of this sort of clause, even though today we do not shoot people accused of these offences. The soldier who does his duty in battle and does it well is perfectly entitled not to think much of a chap who does not.

I wish to make one comment on the amendment. I accept its thrust but I am disappointed that it should be included in this Bill. It seems to me that this is a rather half-hearted way on the Government’s part of going about what is a very significant and unique change of direction. As it is of such significance, it deserves its own Bill. I am extremely disappointed that it should be included in this one, which, as has been said, concerns the future rather than the past.

From the Government’s point of view it would be difficult to find legislative time. Nevertheless, such a Bill would not be heavy and would generally enjoy support. The Government would have strengthened their position if they had taken the full up-front approach on this. The Government have sought to include the amendment in this Bill for convenience. I wonder whether they considered the Charities Bill a vehicle for it. I am sorry that it should be included in this Bill.

I hope that the Committee will forgive my speaking, not having heard the earlier speeches, but I was committed—curiously, in view of the subject of the amendment—to be with the Czech ambassador at the laying of a wreath to the last of the Czech fighter pilots who fought in the Battle of Britain, and who was remembered today at the Battle of Britain monument on the Embankment. So the enormously difficult circumstances in both the Second, and even more so, the First World War, have been much in my mind.

Like most noble Lords, it is the case for my family that my father and his younger brother volunteered to join the Army in 1914 and fought through the war as infantrymen in the Middlesex Regiment. Quite remarkably, both survived. I found myself wondering what my father or my uncle would have said about this. I think they would have been very understanding about the sheer horror of the man whose nerve cracks; the man who is in fact simply no longer in control of himself. But I think they would have had the gravest of reservations about exercising any form of pardon for those, for example, who had deserted their post, or had simply fallen asleep while they were on duty as sentries and thereby imperilled their colleagues. Therefore, there is some hesitation in my mind about the amendment.

It is both a pity and perhaps also a good thing at the same time that, as I understand it, the records are now so imperfect that there can be little distinction between the offences of which men were accused and found guilty and for which they paid with their lives. It is probably an act of humanity and generosity towards the families of those who suffered this fate; recognising that almost by any standards, even perhaps by the standards of the time, some of these sentences were unjust. We have to recognise that; but we also have to recognise that some of those who will receive pardons under this proposal do not deserve to have been pardoned.

I always have hesitations about revisionism of history. What happened did happen. We are edging onto very dangerous ground in what we are doing, because it is being done in a manner that does not distinguish between those who genuinely suffered an injustice and those who deserved punishment. Once we start going into that second area, we are substituting our views today of what would have been the right punishment for that crime in the views of the people of that time. I think that is dangerous. I do not like saying that that which happened did not; or that that which was, was not. So I do not think that I can bring myself to vote against this, but we should understand that it is an amendment with very many faults, and if it is accepted it should be accepted as being a very imperfect instrument.

Like the noble Lord, Lord Tebbit, I apologise to the Committee for having come in just a few minutes after the debate started, again for unavoidable reasons. In quite a long political career, I have not on many occasions found myself agreeing with the noble Lord, Lord Tebbit, and disagreeing with a man whom I respect very much, the noble Lord, Lord Dubs. But this amendment gives me very grave cause for concern.

Is this a sentimental thing to do? Yes, it is. Is it an understandable thing to do? Yes, it is. Is it a good thing to do? I listened to the right reverend Prelate. In so far as it relieves suffering today among the relatives and families, yes, no doubt it is. Is it a human thing to do? I think it is that, too. Is it a political thing to do? I say to the Minister that I suspect that there is a good deal of politics in this issue, not least because it has been introduced in this strange way and because there has been a complete 180 degree turn, but the Minister will no doubt have his own comments to make about that. But is it a wise thing to do? I do not think that it is, in part for the reasons articulated by the noble Lord, Lord Tebbit.

I do not believe that it is open to us, by revisiting history in this way, to reverse decisions taken legally at the time, according to a law passed by the Parliament expressing the public will at the time. I do not believe that it is right for us to revisit the judgments made at the time. The argument was put forward that some of these cases were inadequately proceeded with and that the procedures were fallible, but fallibility is part of the human condition and it has to be part of the condition of justice. If we said that we should pardon people simply because some of the trials were fallible, where would it end?

Above all, I cannot accept the case that, by doing this very human thing and pardoning those people without full knowledge of the facts, we do not in some way impugn the judgments of those who made the decisions according to law passed by Parliament under the conditions of the day. The Minister says that we will not do that, and noble Lords have said in several interventions that the amendment does not in any way draw those decisions into question. But it must—it can have no other effect. You cannot, simply by stating the case that it does not impugn the judgments of those who made these decisions at the time, say that therefore there is no impugnment of their judgments. You cannot, simply by putting a clause in law, give substance to that wispy claim.

The reality is that if we say that, according to the judgments of our time, these people are pardoned, then according to the judgments of our time the decisions made at the time were wrong. I do not believe that it is open to us to do that. Therefore, although I understand all the sentiments behind the amendment and although I wish to relieve the suffering of the relatives, this is an unwise move for us to make. It is one that could create precedents for the future and it cannot but have the effect of impugning the judgment of the people who made those very difficult decisions at the time. It cannot but have the effect of revisiting history, which is very dangerous, and putting the gloss and judgments of today on decisions made in conditions which we cannot in our time and at this distance make proper judgments about.

I am extremely grateful for the sensitivity shown by all Members of the Committee who have spoken and for the thought which has clearly gone into what they have said. This has been the most moving debate in which I have had the honour to participate in this House.

A number of specific questions have been raised and I shall cover them briefly. On the issue of compensation, I stress that this measure is aimed specifically to address those who suffered the ultimate penalty. These cases stand out for the stigma attached to them and thus to their families. The clause states clearly that this pardon creates no new right to compensation. This matter has never been about money, and it would not be right to consider it after this length of time.

The noble Lord, Lord Luke, asked whether this is a legal pardon. It is clearly not a traditional prerogative pardon. Unlike a prerogative pardon, this measure does not quash convictions or lift sentences. It is a statutory measure whose aim is to lift the stigma. We call it a pardon because, although it is not the same as a traditional prerogative pardon, it achieves the effect of lifting the stigma. By way of comparison, the sole legal consequence of a free pardon under the prerogative is to lift the penalty. It would not remove the conviction. Where campaigners have sought free pardons in the past the moral significance has far outweighed the practical legal effect, which would be redundant when a man has already been executed.

The noble Lord also asked about pardoning other offences. The offences listed in the new clause are those associated with the stresses of war. We do not believe that other offences such as murder, or offences associated with treachery, such as assisting the enemy, should be included. There are no plans to extend the pardon to other campaigns, as this pardon relates to the particular circumstances of the First World War.

The noble Lord, Lord Luke, referred to his role as an historian, and raised the point about us rewriting history. We are not aiming to rewrite history. We cannot change what happened in the past. We are aiming to address the memory of the men who were executed and the feelings of the surviving families by finally removing the stigma. I stress again that we are not calling into question the original trial processes or the judgments of individual officers.

I listened very carefully to the noble Lord, Lord Astor of Hever. It is very important for us to recognise the pressures and stresses that the men who had to take these very difficult decisions were under. He mentioned his grandfather who had to lead our army in that terrible war. I stress again that the amendment does not call into question the action of the officers who were responsible for discipline. Without their actions we would not have won that war.

The noble Lord, Lord Tebbit, asked why pardon them when some of them may have been guilty? He raises an important point, and I am grateful to him for describing the nature of what the amendment is aiming to achieve in the very difficult circumstances of the imperfect records that we have. It is very difficult to make distinctions between individual cases. As a result of the Blitz in 1940, we lost a lot of the records that would have helped to make these distinctions. We need to recognise the pragmatic reality of the data that we have. None the less, we hope that by lifting the stigma in all cases, we may do more justice—it is a balance—than by doing nothing at all.

The noble and gallant Lord, Lord Craig, raised his disappointment at our doing this as part of the Armed Forces Bill. I recognise his concern, but having reached the conclusion with regard to this policy and recognising the age of the families concerned—I stress that our primary objective relates to our thoughts for the families—we believed that it was more important to do something as quickly as we could. The Bill provides us with the opportunity to do that. As I said in my opening speech, it enables us to do it at a time that we feel is particularly poignant for the families concerned.

I have to say, too, as the Minister bringing the Bill to the House, it is appropriate that in a Bill that aims to provide for the Armed Forces a structure for the future, it is at the same time resolving what is probably the most difficult issue of the past. This is a wonderful opportunity to do that, which we should take.

I disagree strongly with the noble Lord, Lord Ashdown, although he expressed his concerns eloquently. I fundamentally believe, as he said, that if something is human and good, it must be wise to do it.

The question of the future, which has been raised, is one that we have taken seriously. We have spoken to the commanders of our Armed Forces today. I spoke a few days ago to the current Chief of the General Staff about this matter, and he raised no concerns relating to current morale. I really do not believe that in passing this amendment we would cause any concerns to the current morale of our Armed Forces.

The suggestion that this is a political gesture is unfair. In the short time I have been in this House, I have been subject to some considerable grilling over Oral Questions but none as vehemently as the grilling I received over this matter just a few months ago. The strength of feeling made a deep impression on me, the feeling that the Government should look at this again and not be satisfied with there being no solution because we had been unable to find one. For me, politics is about doing the right thing in the most difficult and complex circumstances. Yes, the Government have looked at this again and found a solution which meets the need. We have acted in a spirit of compassion and humanity to do something good. I ask the Opposition to join the Government, in the spirit of that compassion, and support us in this amendment.

On Question, amendment agreed to.

[Amendments Nos. 178 to 180 had been withdrawn from the Marshalled List.]

[Amendment No. 181 not moved.]

After Clause 354, insert the following new clause-


(1) Service personnel under the age of 18 are not permitted to serve in combat areas.

(2) Service personnel under the age of 18 are not permitted to carry out guarding duty with live weapons.

(3) Service personnel under the age of 17 are to be accommodated in dedicated locations, and particular attention is to be given to their care.”

The noble Lord said: The amendment deals with how those under 18 should be handled by the military. I have raised this matter in various parts of the Bill. In this case, we are trying to ensure that the rules for how members of the Armed Forces under 18 are treated are clear and in the Bill. The amendment simply puts into effect the recommendations of Nicholas Blake QC.

The first ensures that there are no circumstances in which under-18 year-olds should be put into combat zones. The second ensures that, when they are outside combat zones, they do not find themselves in a combat situation with live weapons. The third is a direct recommendation for the special arrangements needed for under-17s.

I was disappointed by the Ministry of Defence’s response to the Blake report in these areas. It is full of “if circumstances permit”, or “it will take time to provide special facilities”. We are talking about child soldiers. The Blake report made it quite clear that Nicholas Blake saw no justification on recruiting and manning grounds. The only rationale that allowed him to support the involvement of under-18 year-olds was that the education and training the military gave them was rather better than the rest of the education system provides. He said that when the state education system comes up to the standard of the military, it will be time to look again at whether we need under-18s.

We must be clear—given the international rules on the use of child soldiers and the fact that we do not approve of it in other nations—that the rules are there, that we will follow them and there will not be exceptions. I beg to move.

We fully acknowledge our duty of care to all service personnel and the importance of understanding and addressing the vulnerabilities and requirements of those under the age of 18.

Much work has already been done to improve safeguards for those who join the Armed Forces under 18, but we recognise that more can be done. Our responses to the House of Commons Defence Committee’s Duty of Care report and the Deepcut review reflect the importance which we attach to this issue.

We firmly believe that we should continue to recruit from age 16, but we have a clear commitment to take all feasible measures to ensure that those who have not reached the age of 18 do not take a direct part in hostilities.

The UK ratified the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict on 24 June 2003, and procedures are in place to ensure that under-18s are withdrawn from their units before deployment on operations, wherever possible. However, there may be some situations where, exceptionally, there will be a risk of direct involvement in hostilities by under-18s. For example, that could happen if a ship or a unit is already in theatre and it is not practical to remove under-18s without undermining operational effectiveness or if removing them would endanger the mission or the safety of other personnel.

We would not want to rule out the possibility of suitably qualified personnel aged 17 or over undertaking armed patrolling duties. They would be judged by a competent officer to have the maturity and appropriate attitude to take personal responsibility for a firearm with live rounds and would be accompanied by another appropriately trained and qualified service person. Particularly for the Army, weapons handling and guard duty are important aspects of service life.

We fully recognise the special responsibilities that come with arming under-18s and take appropriate precautions relating to their safety and well-being. These include: tighter procedures to identify those at risk of self-harm and to deny them access to means; the need for weapons training and assessment before an individual is qualified to be armed; the responsibility of the chain of command to know each individual and to be confident that they are sufficiently mature and sensible to carry a weapon; and the requirement for each guard to be under the command of a guard commander. Any detachment isolated from the main guard is to be commanded by an NCO. Commanders at all levels are responsible for ensuring that all personnel issued with arms and ammunition for security duties are properly trained and that regular refresher training is carried out.

We have taken steps to reduce the need for trainees to conduct armed guarding duties as a routine requirement by increasing recruitment to the Military Provost Guard Service. In the longer term, it is expected that the recruitment of additional members to the Military Provost Guard Service will obviate the need for phase 2 trainees to undertake routine guard duty.

We fully appreciate that the training environment should take into account the specific requirements of recruits and trainees under the age of 18. In the Army, there are training facilities exclusively for recruits under the age of 17 at Harrogate and Bassingbourn, although some under-17s are also trained at other training establishments.

However, we do not believe that this is an appropriate approach to adopt across the Armed Forces, as accommodating under-17s separately from their colleagues would cause barriers that do not reflect the reality of the service environment. We have, however, concentrated on improving accommodation for all recruits at several training establishments, and there will be ongoing improvements to the training environment through the defence training review.

Commanding officers take their responsibilities towards their people extremely seriously, and they are well aware of the particular needs of younger recruits and trainees. Guidance for commanding officers specifically relating to working with under-18s is being reviewed in the light of the Deepcut review.

Other work has included the development of a “care of trainees” module, which was introduced to the training programme for instructors and other supervisory staff and has now been incorporated into the “train the trainer” course for instructors. In addition, a new policy on the provision of supervisory care in phase 1 and phase 2 training establishments has been introduced. This requires each unit to produce a supervisory care directive, which is based on the thorough assessment of the risk to trainees, taking into account the particular factors pertaining to the establishment and nature of the training undertaken.

In view of the measures already being introduced, which I have described, I am confident that the needs of service personnel under the age of 18 are being robustly addressed and that there is no requirement to introduce primary legislation to enforce the special provision for these young service personnel.

I am grateful to the Minister for reading out the annexe to his letter to me of 9 October. It saves me from doing so because that is the very evidence I would use to suggest that the Ministry of Defence is not taking this problem seriously. I think that he may have misread one bit because my annexe refers to recruits under the age of 17 at Harrogate, whereas he actually said “under the age of 18”. But that is a small point.

If operational actions are compromised because under-18 year-olds are there when suddenly a combat situation develops and you cannot get them off the ship or out of the theatre, that suggests that there has not been enough thought about putting them there in the first place. They have been put in a position where they are liable to be in a combat situation.

It is extraordinary that such servicemen must have live ammunition to guard because there are not enough members of the Military Provost Guard Service “but we are rather hoping that we can find funds to get some more”, and the thought that the Ministry of Defence is just going to ignore the recommendations of the Deepcut inquiry about under-17 year-olds is outrageous.

We need to talk about how to move forward urgently so that we can bring forward something that will not cause major difficulty with the Bill on Report. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

After Clause 354, insert the following new clause-


(1) On the enactment of this Act the Secretary of State shall cause to be prepared and publish a document to be known as the Manual of Military Law (“the Manual”).

(2) The Manual shall include-

(a) an index of the provisions of this Act and of the other statutes and conventions in force as listed in accordance with this subsection, (b) the terms of the Geneva Conventions, (c) the terms of the International Criminal Court Act 2001 (c. 17), (d) the terms of the Human Rights Act 1998 (c. 42), (e) a schedule of all other statutes in force relating to Her Majesty's forces, (f) a schedule of all statutory instruments in force relating to Her Majesty's forces, (g) formal guidance on the circumstances in which the Special Investigations units of the service police should be instructed to undertake investigations and the procedure in such investigations, (h) a definitive statement on the duties and powers of the service prosecuting authorities and of their supervision in their exercise of their duties and powers, (i) such other information relating to the application of this Act as the Secretary of State or the Judge Advocate may consider as calculated to assist the proper understanding of the applicable law as it relates to members of Her Majesty's forces or others within the ambit of this Act and those advising them. (3) The Manual shall be prepared and published in such form and manner as best enables all information that it contains to be up-dated as appropriate.”

The noble Lord said: This is very much a probing amendment. It seeks to impose statutory requirements on the manual of military law. Such a manual already exists and is both long-established and in frequent use.

Commanders in the field are under obvious pressure and great strain even before taking into account their legal obligations. They need to take prompt and well informed decisions. It is therefore essential that they have a single and complete document that allows them to understand their responsibility and which gives appropriate guidance. It should be in language that one can read quickly and is easy to understand.

The Government argued in another place that this clause would remove “flexibility” from this document. However, it is essential that those in the heat of battle and under intense media scrutiny can refer to it with full confidence. It is right that we prescribe its contents to include all the various sources of law that affect our troops. It is equally important that there is provision for updating the manual when necessary.

The amendment allows all the “flexibility” needed in language, length and form of the document. But for the manual to serve its purpose it needs to be authoritative. Its value to commanders and their advisers is that they can rely on it completely.

It is essential that the accused and the accuser in any case will have had reference to the same authoritative document. Finally, it is important to remember that this manual is the document that the Armed Forces will use and refer to, not the Bill we are discussing in Committee. I beg to move.

I support my noble friend. I have two questions about the future manual of military law, manual of defence law or whatever it gets called. Will it be available for units electronically? Will it be published and available on the net?

I generally support the amendment. We all know that there must be a manual of military law at some stage on the basis of the Bill. If the amendment were accepted, we might want to consider additions to subsection (2), such as reference to the redress procedure and the service complaints commissioner—the sorts of things we are adding to the Bill at the moment. But I certainly support the amendment of the noble Lord, Lord Astor.

From a practical point of view, such a manual is very much needed. There is no readily available volume which is updated, as the noble Lord, Lord Astor, said and which is comprehensive. It would greatly assist lawyers as well as officers in the field to have the law comprehensively set out in a manual.

I can be very helpful and direct on this point. We are in complete agreement with noble Lords on the need for such a service manual. We have already started working on it. We recognise the fundamental importance of getting it right. On the point raised by the noble Earl, Lord Attlee, yes, it will be available on the net; it will be available electronically. I hope that, having made that absolutely clear, with that assurance, the noble Earl will feel able to withdraw his amendment.

In the spirit of flexibility that we have at this stage, perhaps I may also comment on the previous amendment. I have heard the strong feelings expressed by the noble Lord, Lord Garden. I will reflect on them and talk to my ministerial colleagues to see whether I can do anything to help further to meet his real concerns. As I have said, the outcome of the Blake review of the learning from Deepcut is of central importance to us.

I thank my noble friend Lord Attlee and the noble Lord, Lord Garden, for their support. I very much take on board the points that they and the noble Lord, Lord Thomas, made. I thank the Minister for his very positive response. I am very pleased to hear that his department is hard at work on the new manual. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

After Clause 354, insert the following new clause-


(1) Where any foreign military or civil aircraft movement occurs at a military facility, the commanding officer of the facility must satisfy himself that the aircraft is complying with United Kingdom legal requirements and international obligations.

(2) If the commanding officer is not so satisfied, he shall forthwith-

(a) prevent further movement of the aircraft; and (b) inform higher authority.”

The noble Lord said: My amendment is designed to clarify the position for commanding officers of any service who have an airfield under their command if they have suspicions that the aircraft movements on their airfield contravene either national or international law.

The Minister sent me a letter today in which he picks up one aspect of that: extraordinary rendition. Of course there are other possible breaches of international or national law, for example the movement of weapons from one country to another when there is an international sanction. But perhaps we may just consider extraordinary rendition for a moment, which we debated in the context of the Civil Aviation Bill and will debate in the context of the Police and Justice Bill.

This is a narrow question, but we now know that military airfields are used for flights by Central Intelligence Agency aircraft. The status of the aircraft was difficult to establish within the Civil Aviation Bill—whether they were commercial, civil, military or what—but we know that Brize Norton and Northolt have certainly been used and that the transits of those aircraft are to and from places where there might be interest in moving people for interrogation. We do not know whether that happens, and we receive endless assurances from the Government that they have always received assurances from the American Government that that is not what the flight is being used for.

Nevertheless, there is a question to be asked: what is the responsibility of the commanding officer? I raise that because there has now been a case in Italy where a member of the Italian military in the intelligence branch has been prosecuted for assisting in extraordinary rendition. So military officers appear within Europe to be liable if they have in some way assisted in extraordinary rendition. My amendment seeks to make clear where the buck stops for the commanding officer, the limits of responsibility, and what action should be taken to discharge that responsibility. I beg to move.

I have put my name to the amendment, and shall say a very few words. The Minister, senior military personnel and some of the legal drafti