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Armed Forces Bill

Volume 685: debated on Thursday 12 October 2006

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.