moved Amendment No. 165:

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Amendment, by leave, withdrawn.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.

moved Amendments Nos. 169A and 169B:

moved Amendment No. 171:

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.

moved Amendment No. 173:

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]:

moved Amendment No. 173A:

moved Amendments Nos. 174 to 177:

moved Amendment No. 177A:

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 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.]

moved Amendment No. 182:

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.

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.

moved Amendment No. 183:

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.

moved Amendment No. 183A:

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 drafting team held a briefing meeting earlier this week, for which I was very grateful. It was certainly illuminating. I understand from the meeting that there is an agreement between the UK and other western nations whereby military aircraft are cleared by senior government personnel so that they have already been cleared by the time they arrive. I also understand that this is an old arrangement, which continues. This introduces a serious lack of transparency, and I am slightly more concerned about the possibility of the practice of extraordinary rendition than I was even before I learnt about this. Someone somewhere must be taking that decision based on evidence that is nowhere near available to the public, although it is certainly a public concern and of public interest, as we know. Can we discuss with the Minister between now and Report some way in which we could introduce some measure that would ensure much greater accountability in view of the seriousness of the suspicion and also because of the public concern?

I strongly support the amendment, apart from the fact that it does not go far enough. Members of our Armed Forces should be prohibited from having anything to do with extraordinary rendition.

I support the amendment, but it does not really deal with the essence of the problem, which has been debated on many occasions. On 18 July, in a debate on arrangements made for extraordinary rendition, the noble Lord, Lord Garden, asked the very question, at cols. 1219-20 of the Official Report, that concerns us today. I shall not take very much time today, as I spoke in that debate; in fact, I initiated it. At cols. 1223-24, which is the crucial passage, the noble Lord, Lord Triesman, dealing specifically with the question put by the noble Lord, Lord Garden, spoke about arrangements for extraordinary rendition and said that exactly the same arrangements apply to the transfer of weaponry. He said:

“On military airfields, the United Kingdom has given the United States military and state aircraft”—

I think that includes those on charter to the CIA—

“clearance to overfly … and to land at military airfields in the United Kingdom without seeking prior permission”.—[Official Report, 18/7/06; col. 1223.]

Soon after, we read in the papers, and it was never denied, that the same arrangements were being made to carry sophisticated weaponry from the United States through Prestwick, to land for refuelling, to Israel to bolster the attack on Hezbollah, for which the ceasefire had been postponed.

One need not, in the context of international obligations, start to enumerate how many are involved. Therefore, I very much support this proposal. However, I think that the background is relevant to this degree. On 24 July, I sought to ask a Private Notice Question on this matter. The Question was:

“To ask Her Majesty’s Government whether notwithstanding any extant arrangement they have proposals to ensure that aircraft used by the Government of the United States which break their flights to refuel at civil and military airports in the UK shall be searched and all weaponry removed”.

The Question was rejected on the advice that there had been no substantial development since the debate on 18 July and that it did not fulfil the dual criteria of urgency and importance. Of course it does not matter that the Private Notice Question was refused. But it does show the attitude of the Government. One must be careful here, because I think it is fairly understood that at that time—over the ceasefire and the delivery of arms—the attitude of the Cabinet was split. Inevitably, the Private Notice Question was going to fall into a quicksand.

I mention the background not to complain that they did not take my Question—that does not matter. What does matter is that the amendment proposed by the noble Lord, Lord Garden, should be put in context with the background. I support the amendment.

I do not think that I would support the amendment in its present form. It is not that there are not serious concerns about this which have been expressed from various sides of the House. But I think that one must recognise that in any unilateral action such as this there is almost bound to be a tit for tat. I do not suggest for one moment that our military or civil aviation would behave illegally. But it is not how we might perceive it: it is how the hosting nation might perceive it. One needs to give a lot more thought to a proposal of this sort than appears to have been given so far. It has to be seen in the international context, not just in the national one.

We are signatories to the 1984 Convention on the Prohibition of Torture, which prohibits torture in all circumstances. Its intimate link with torture makes extraordinary rendition an international crime. It is an international crime which is not just applicable to states: it is a crime that engages the actions and responsibilities of individuals who are themselves vulnerable to prosecution for any transgression of the convention. Moreover, every state that is a signatory of the 1984 convention is under a legal duty not only to prosecute anyone who commits torture within its jurisdiction, but also anyone who is complicit in an act of torture. That follows from Article 4 of the convention.

I am in no doubt that if the commanding officer of any aerodrome in the United Kingdom had reason to believe that an in-transit aircraft was engaged in an act of external rendition, or there was a real risk that it was so engaged, he would be under a personal legally binding duty to investigate the matter, irrespective of any superior orders he had had to the contrary. Not to act, in those circumstances, would render him liable to prosecution for complicity in torture.

That being so, in my view this amendment is unnecessary; because all the ingredients of the duty are there already by nature of our international obligations which run right through to the actions of individuals. But if we were to have an amendment of this sort on the statute book, I would certainly wish to have it drafted differently. By saying that I in no way intend to criticise the noble Lord, Lord Garden, who I applaud for raising the issue in the course of the debate.

The particular problem I have with the drafting of his amendment is that a commanding officer could escape the personal responsibilities that he is undoubtedly under simply by accepting the word of a superior officer that there was no problem. That is almost counterproductive; in fact it misleads a commanding officer, as perhaps the Italian officer now being prosecuted in Italy found out to his cost. I can see the noble Lord, Lord Garden, helpfully nodding in assent. I do not think it is necessary to have something on the statute book, but if we are, we need to reflect a little further on the drafting.

I recognise the concern on this matter, in particular as it has been expressed in so far as it relates to the subject of extraordinary rendition. On that area, on behalf of the Government I do not have anything to add to what my noble friend Lord Triesman said on the subject in the debate on 18 July, as has been highlighted by the noble Lord, Lord Campbell of Alloway. But I hope that I am able to reassure noble Lords about the specific concern which has given rise to this amendment: that station commanders might themselves be liable to prosecution as a result of extraordinary rendition flights.

I have written to the noble Lord and others and, as the noble Baroness, Lady D’Souza, has highlighted, only the day before yesterday we had a briefing on this subject. However, I am pleased to have the opportunity to put some aspects of this on the record. It is important to stress at the beginning that the position with regard to military flights is that they are given diplomatic clearance on the basis that they are military flights. It is not a matter of looking at each flight and deciding whether or not to clear it. As the noble Baroness pointed out, it is a matter of the clearances being given at the diplomatic level. So, foreign flights are subject to those diplomatic or other flight clearance arrangements and therefore they arrive at a military base with the necessary flight clearances. They land, refuel and leave. That is part of the normal arrangements between states, and as the noble and gallant Lord said, there is a reciprocity aspect to this.

I understand the desire for ensuring transparency in these arrangements and I will read Hansard, reflect further on it and then pass on comments to my colleagues in government about the concerns which have been expressed in our discussion this afternoon. But I do not believe that it is appropriate in this Bill to put the responsibility on to commanding officers. We can see no real basis for concern that commanding officers might be criminally liable under the current arrangements. I was not aware of the case in Italy, but I shall study it.

I am grateful to the Minister for his reply and to those who have spoken in this short debate. The noble Baroness, Lady D’Souza, has been a great ally in looking at the different aspects of how we can ensure that extraordinary rendition does not happen in movements either within the United Kingdom or through United Kingdom airspace. The noble Earl, Lord Attlee, was supportive but wanted even more. As extraordinary rendition is illegal for the reasons that the noble Lord, Lord Kingsland, explained, I think that my amendment encompasses the noble Earl’s concerns. I am again grateful to the noble Lord, Lord Campbell of Alloway, for his continuing support in this area. I take very much to heart what the noble and gallant Lord, Lord Craig, said about the problems of other states taking reciprocal action, but I do not think that that can stop us ensuring that we have in place the right procedures for obeying international law.

I thought that the analysis of the noble Lord, Lord Kingsland, was wonderful. I take full responsibility for the drafting—I am not a lawyer, nor ever will be—and I look forward to receiving help in getting the words right. The problem would be solved if the Hansard report of the noble Lord’s speech were issued to every commanding officer, because it would tell them what their responsibilities were. The Minister said it is unfair to put such responsibilities on them. But it is not a question of whether it is unfair to put these responsibilities on them—they have them under international law and cannot get out of it. Whether they know they have this responsibility is an entirely different matter, but you cannot start excusing the responsibility on the basis of bureaucratic burdens and so on. As we all know, commanding officers have lots of bureaucratic burdens of one kind or another. They do not personally go and inspect every aircraft that comes through—they have systems—but they are the focus of responsibility. The Bill gives them that responsibility in many different areas and the amendment would be no different.

Although I accept that the drafting of the amendment is imperfect, the sentiment is strongly felt in various parts of the Committee. We need to look at the drafting and consider by what other system, if not in the Bill, we can alert commanding officers to their present responsibilities if they are not ultimately to get themselves into hot water. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 14 agreed to.

Clauses 355 and 356 agreed to.

moved Amendment No. 184:

I am grateful to the noble Lord, Lord Thomas of Gresford, for giving me the opportunity to respond. As he says, Amendment No. 184 reflects an issue raised by the report of the Joint Committee on Human Rights published on 21 July 2006. The committee questioned why, given the importance the European Court of Human Rights in the case of Grieves placed on the need for judge advocates to be civilians, this was not stated in the Bill.

All judge advocate appointments are made by the Lord Chancellor after a fair and open competition conducted by the Judicial Appointments Commission. It is my contention that the civilian status of judge advocates is protected both by their method of appointment and by the policy of all the Armed Forces, most particularly the Royal Navy, following the Grieves judgment of 2003. Therefore, I believe that the amendment is unnecessary. I understand the concern expressed and trust that in the light of my explanation, the noble Lord will agree to withdraw the amendment.

The new clause proposed by Amendment No. 184A defines who may be a judge advocate. The Judge Advocate General is responsible for appointing judge advocates to individual trials. Under this clause, the Judge Advocate General may select a judge advocate who has been appointed under Section 30 of the Courts Martial (Appeals) Act 1951, or he may request that a High Court judge is nominated by or on behalf of the Lord Chief Justice. The power to select judges of the High Court in England and Wales will rarely be used, but as noble Lords will be aware, one has been selected for an important trial which began recently, arising out of the death in 2003 of an Iraqi citizen in British custody. As at present, if the Judge Advocate General wishes to select a High Court judge for a trial, the Lord Chief Justice will need to be convinced that the case is a suitable one for such a judge. The Judge Advocate General will then be informed of the name of the High Court judge under the cab rank rule.

Amendment No. 201ZA is a consequential amendment to add a cross-reference to the new clause into the definition section.

I am grateful for the Minister’s assurance in relation to the civilian status of the judge advocates. I accept his explanation and will not pursue my amendment.

So far as the Government’s amendment is concerned, I welcome the ability of the Lord Chief Justice to nominate, at the request of the Judge Advocate General, a High Court judge to sit in serious courts martial. When he sits in that capacity, he does not have the powers of a High Court judge; he exercises the powers of a judge advocate. However, I have not found that to be a particularly difficult problem. I welcome that and beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 184A:

moved Amendment No. 184B:

moved Amendment No. 185:

My Amendment No. 186 would quantify the military experience required. It is in line with other parts of the Bill where we have looked for military experience. We generally support Amendment No. 185, although, if it were earlier, I might have wanted to debate what,

“approved by the Chiefs of Staff”,

means in terms of political control of the military within the country, but it is probably too late to go into that at this stage.

The two previous speakers have spoken eloquently to the amendments. In our debates so far on the Bill, no one has disputed the need for a tri-services discipline Act. I am certain that our servicemen will draw comfort from the fact that they are seen to be different by virtue of there being a need for the Act, but I am certain also that their comfort will be eroded if a key part in its implementation is not played by a person with uniformed experience. That is important for their confidence in the system. Therefore, I support the proposal that the person concerned should have a uniformed background. I am very happy with the amendment of the noble Lord, Lord Garden.

My name also has been added to the first of the two amendments and I strongly support it. It should be considered absolutely essential that the person who is taking prosecutorial decisions about our service men and women not only understands and appreciates the context in which they operate, but has had some first-hand experience of what service life and conditions entail. Our service men and women must have confidence that the person taking the ultimate decision about whether a case should be brought against them has a first-hand understanding of what serving in the Armed Forces entails. Without it, every time a serious prosecution is brought against one of them, there will be the feeling in the military, rightly or wrongly, that yet again the civilian system is attacking the military. That will only exacerbate the unspoken feeling among our Armed Forces that the Government do not appreciate the maintenance of trust that underpins everything that the military does.

One factor that leads soldiers to trust officers in the chain of command is the belief by a subordinate that his superior officer understands, and has experienced to a degree, the situation in which the soldier finds himself. If we are asking an individual to subject himself or herself to service law and discipline, he or she should be able to have trust in the person who ultimately upholds it. The Select Committee in another place concurred when it stated, at paragraph 73 of its report:

“Whilst we appreciate the difficulties involved in defining military experience in statute, we do consider it important for the Director of Service Prosecutions to have had military experience”.

I support the amendment in the name of my noble and gallant friend Lord Inge. In preparing for our debates on this Bill, I have spoken with the Adjutant-General of the Army, the person responsible for discipline, a post that I once held. I asked him which aspects of the Bill the Army as a whole felt most strongly about. There were two. One has come up many times: the position of the commanding officer. The second was that the prosecuting officer must be someone with service experience. I merely pass that on, because it must be relevant; the views of the Armed Forces must be taken into account when we are discussing this issue.

I urge the Minister to accept this amendment, or something similar.

I recognise that this is an important area of the Bill. It is a subject on which we have had many discussions over the past months during the Bill’s passage, in this House and at the briefings at the Ministry of Defence. We recognise the strong feelings about it not only in this House but also, as the noble Lord has just emphasised, in the Armed Forces, particularly the Army.

I shall cover Amendment No. 185 and the points about qualifications first, because it is important for me to stress upfront that the issue here is how we can best meet these concerns. We do not believe that doing so in the Bill would be the most pragmatically effective way, as I shall explain.

Noble Lords will understand that the minimum qualifications required to hold the post of director are prescribed in the Bill. These are minimum legal qualifications, which do not amount to a personal specification for recruiting purposes. I also remind noble Lords that my right honourable friend the then Secretary of State said in the other place that it is important that the Director of Service Prosecutions should have relevant service experience. Moreover, under the Bill the prosecuting officers will all be serving officers.

It is our intention that one of the essential requirements for the director should be service experience. However, we believe that we could find ourselves in difficulties if we sought to define in the Bill the kind of service experience that is required. As the noble Lord, Lord Garden, mentioned, that is very difficult to do. Are we talking about someone who held a short service commission maybe 10 years ago? That counts as service experience. Or are we talking about someone who has been in the front line of operations? Not many lawyers are in the front line of operations, although in recent years they have increasingly served in operational theatres. However, that is not the case for our more senior service lawyers.

Rather than finding ourselves in difficulty by putting that requirement in the Bill, we propose to do it through the recruitment process. I recognise that, in their amendment, noble and gallant Lords are looking to put that requirement in the Bill, so we will need to convince them that the recruitment process will be sufficiently robust to meet their concerns. We envisage that the selection panel will be chaired by a Civil Service commissioner and that the vice-chief of the defence staff, on behalf of the chiefs, will be a member, together with a senior member of the judiciary.

Amendment No. 186, which seeks to quantify the type of service experience in terms of years, would mean that we would miss the point regarding the nature and location of that experience. We need to make a qualitative assessment of the type of experience that a candidate for the post has had. Ensuring that the selection panel has on it someone who is in a position to make that judgment is the most effective way of deciding who is to be appointed to the post.

The qualifications of candidates will be a much better way of narrowing down the sort of experience that we want the director to have. Moreover, they are not confined to military qualifications. This will be a demanding post and we will wish to appoint a director who in all aspects is an outstanding individual. This means that he will need, in addition to service experience, a proven track record in relevant legal skills, leadership and what we might term “management skills”.

I have referred to service experience. By this I mean an understanding of service life and the operations of each of the services and of the needs and the working of a service system of justice and discipline. This will be essential if the director is to develop effective relationships and enjoy the confidence of the Armed Forces while maintaining prosecutorial independence.

If the requirement is drawn too tightly in the Bill or in regulations, we could find ourselves excluding the person whom we are really looking for—the best person for the job. I feel sure that there are people of the right calibre currently serving who could do this job, but it is vital that a director is appointed on merit in a competitive field, which could include civilians who have relevant experience of the services. That is the way to ensure that we get the right person for the job, rather than recruiting from a narrow field and perpetually running the risk of criticism that there were better external candidates.

The proposed recruitment process will draw on the one used successfully to appoint the Director of Public Prosecutions. There will be a small, independently chaired panel which will make a recommendation to Her Majesty. As I have said, we intend that a very senior serving officer representing the chiefs of staff will be a member of the panel. I hope that this will give precisely the assurances that noble Lords are seeking through their amendments.

The recruitment process, job specification and terms and conditions against which the director is appointed will also be agreed with the services. It is inconceivable therefore that the director would be someone who is unacceptable to the services. For the reasons that I have given, I invite the noble and gallant Lord to withdraw the amendment.

I thank the Minister for that reply and the assurances that he has given. He clearly recognises our concerns. I understand why it is not possible to include the measure in the Bill. However, somehow we need to involve single service people such as the Adjutant-General, the Air Member for Personnel and the Second Sea Lord in selecting candidates so that they are confident that the person selected is someone whom they can support. I ask the Minister to recognise that this is a matter about which the services, not just noble and gallant Lords sitting in this Chamber, feel strongly. I shall withdraw the amendment, but I may wish to return to the matter on Report.

I am grateful to the noble and gallant Lord. I recognise the strong feeling in the services on this matter and I shall do as he requests.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 186 not moved.]

Clause 358, as amended, agreed to.

Clause 359 [Prosecuting officers]:

moved Amendment No. 186A:

moved Amendment No. 186B:

I wonder whether the Minister would agree not to move that amendment at this stage. I think that my noble friend Lord Garden indicated that he wished to consider the amendment, which was tabled rather late, and would return to the matter on Report. We would welcome the opportunity to look at the wording and possibly to improve it.

Would it not be better to have it in the Bill and, if we are not quite happy with it, to amend it on Report?

On Question, amendment agreed to.

Clauses 360 to 363 agreed to.

Schedule 15 [Civilians subject to service discipline]:

moved Amendment No. 187:

Amendment No. 187, on which I can be brief, would extend the service jurisdiction to civilians in military aircraft before it is necessary to do so. That is why we do not believe that it is necessary.

Speaking more fully on Amendment No. 188, the noble Earl, Lord Attlee, asked whether we believed that the schedule was fit for purpose. We do, since the extent to which the new Act should apply to civilians has been very carefully considered by the Ministry of Defence. The starting point was to identify those civilians with a sufficient connection with the Armed Forces to justify making them subject to a limited range of offences under service discipline. Two key requirements emerged from that. First, that civilians should be subject to this limited system if they are physically located with the forces, for example, when resident or staying in service accommodation, or travelling in Her Majesty’s ships afloat. Secondly, even if not physically located with the forces, civilians should be subject to service discipline if the nature of their relationship with the forces is such as to justify it. Thus, for example, the jurisdiction should extend to persons working in the support of the forces. I have seen for myself in operations the vital work that those civilians do, for example, in the support of our communications network.

The noble Earl’s substantive amendment would not cover the range and diversity of the civilian workforce connected to the Armed Forces; for example, journalists, freelance consultants, employees of welfare bodies such as the British Red Cross, or the Navy, Army and Air Force institutes, to name but a few, would be excluded. More broadly, the amendment does not provide flexibility for the Defence Council to categorise civilians on a case-by-case basis or to specify geographical or physical locations to where service disciplines should apply. In short, the noble Earl’s amendment is undesirable and I hope that he will not press it.

I thank the Minister for his reply and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 190:

Perhaps if I speak to my amendments, some of the commentaries might be short-circuited. This is a complex grouping that relates to Clause 366, a useful part of the Bill in which all the delegated powers are grouped so that they can readily be seen. I should remind your Lordships that I am a member of the Delegated Powers and Regulatory Reform Select Committee. The problem with the clause is that it refers to many previous issues that we have dealt with, and the Government have picked up most of the Select Committee’s recommendations, so I can be brief.

My Amendment No. 192, which seeks to provide stronger parliamentary scrutiny to part of Clause 127, has fully been addressed by the government amendment following the recommendation of the Delegated Powers and Regulatory Reform Committee in paragraph 10 of its report.

Amendment No. 197 seeks to ensure that any changes to the court martial rules covered by Clause 162 are subject to the affirmative procedure. The clause gives a long and detailed, but not necessarily exhaustive, list of provisions that may be made. Therefore, it is at the heart of ensuring that the system is fair and just. Paragraph 17 of the Delegated Powers and Regulatory Reform Committee’s report recommended that,

“rules dealing with the composition of the Court should be subject to affirmative procedure”.

I note that a government amendment deals specifically with that point. I agree with that, but I wish to go further: we need all rules to be subject to affirmative procedure, given their central importance to the court martial system.

My Amendment No. 199 brings four sets of regulations into affirmative action. I shall not deal in any detail with those covered by the government amendments—that is, Clause 270, Clause 326(2)(c), Clause 328 and Clause 332(2).

However, I should like to address Clause 334(5). Clause 333(1) enables the Defence Council to delegate its functions to a service complaint panel, but Clause 334(5) allows the Secretary of State to change the composition of that panel by negative procedure. Given that that could change the new system in a significant way, affirmative action is appropriate, as the Delegated Powers and Regulatory Reform Committee recommends at paragraph 26. However, I note that the Government have narrowed their change down to just Clause 334(5)(a). In my view, that does not meet the recommendation of the Delegated Powers and Regulatory Reform Committee and it leaves open all aspects of the service complaint panel, apart from composition. I wish to hear the Government’s reason for not fully addressing the committee’s concerns.

I am in awe of the noble Lord’s grip of the complexity of these matters at this late stage in the consideration of the Bill. I shall respond to Amendments Nos. 195, 197 and 199. I am grateful to the noble Earl, Lord Attlee, for his clarification and for avoiding unnecessary description.

This group of amendments all have the same effect: making the rule-making clause to which they refer subject to the affirmative resolution procedure. To a large extent, the government amendments achieve what each of the noble Lords’ amendments would do, but we are not convinced that quite all those which are the subject of amendments should be subject to the affirmative resolution procedure.

The Bill contains a number of rule-making powers. Many concern procedural detail, which may need to be amended to accommodate operational requirements or changing circumstances. When it is appropriate to make a rule-making power subject to the affirmative procedure, we have provided for that. In particular, we have accepted all the recommendations of the Delegated Powers and Regulatory Reform Committee.

In relation to Amendment No. 197, concerning court martial rules, we consider that the rules which govern the constitution of the court martial and those on sentencing when an accused has elected trial should be subject to the affirmative procedure. However, we do not consider that it is necessary or appropriate for the rules which deal with procedural details to be so subject.

Similarly on Amendment No. 199, we agree that the aspects that relate to matters which are excluded from the redress system and the composition of the panel should be subject to the affirmative procedure, and, among other things, government Amendment No. 195A achieves that. But we are not persuaded that it is appropriate for the affirmative procedure to apply to all the procedural detail concerning the panel.

Finally, we do not consider that, as proposed in Amendment No. 199, the regulations concerning desertion and forfeiture of service under Clause 328 merit the affirmative procedure. We have made a number of other matters subject to the affirmative procedure by our amendments to this clause. These include the procedure for referral of cases to the prosecuting authority, the referral of cases by the service complaints commissioner, and any provisions that we make aligning the service discipline Acts with the Bill.

I hope that noble Lords are content that in large measure we agree with their view of what needs to be subject to affirmative resolution and that they recognise that in general the government amendments achieve that. In the circumstances, I ask noble Lords not to press their amendments and to support those of the Government.

The Minister’s reply contained no surprises in the sense that it restated the position as it is. The only area at which I will need to look further is my question whether the Government’s amendments have fully taken on board paragraph 26 of the 23^rd report of Delegated Powers Regulatory Reform Committee, which recommends that the power in Clause 334(5) shall also be subject to the affirmative procedure, in that the amendment relates to paragraph (a) of that subsection.

It may sound like a detail but these delegated powers are remarkably important, so we could perhaps discuss that and come back to it, particularly as the government amendments have rejigged the way in which they have been presented at rather late notice, and I may not have caught all the subtleties of it.

I am grateful to the Minister for that response, and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 191:

moved Amendments No. 193.

I have to tell the House that if Amendment No. 194 is agreed to, I cannot call Amendment No. 195 by reason of pre-emption.

moved Amendment No. 194:

moved Amendment No. 195A:

moved Amendment No. 200:

moved Amendments Nos. 201ZA and 201ZB:

moved Amendment No. 203A:

I welcome the provisions for preliminary hearings as to plea, which is very important in saving time. It will be appreciated that courts martial do not come into existence until they are convened. It has therefore been very difficult to take a binding plea before that step. We now more closely approach the procedures of the civil court and Crown Court. There are considerable advantages to all sides from this step.

I also associate these Benches with the goodwill and thanks transmitted to Judge John Sessions on his retirement from being Judge Advocate of Her Majesty’s Fleet. I said earlier that there is too much tradition in military law and procedure, and here we see an example of it disappearing. From 1663 to now is a pretty good time span for the position of Judge Advocate of Her Majesty’s Fleet. It has a wonderful sound to it and takes us back to the three-masted vessels of that time—almost to Elizabethan times. No doubt there have been many illustrious forebears to the current Judge Advocate of the Fleet, and we remember them at this minute.

From these Benches, I associate myself with the warm comments of the noble Lord, Lord Thomas of Gresford, about the Judge Advocate of Her Majesty’s Fleet.

I am sorry to come back to earth; there is a small amendment of mine tucked in this grouping. Amendment No. 204 is separate from the various government amendments. It looks like a remarkably simple amendment—just to add the word “not”—but I am afraid it changes the sense of what the Government are trying to achieve.

Clause 373 deals with transitional arrangements. Clause 373(6) allows the Armed Forces Act to work in anticipation of the coming into force of Section 61 of the Criminal Justice and Court Services Act 2000. I am seeking to find out why this should be done, particularly with regard to the under-21s and custodial sentences. The Explanatory Notes, which have been remarkably useful and are very clear compared with those for some Bills, state that it is to allow the current procedures for the imprisonment of 18-to-20 year-olds under the service discipline Acts, but Section 61 of the Criminal Justice and Court Services Act 2000 has still not been brought in after six years. The Ministry of Defence is not usually in the vanguard of advances in public law and the like, and the aim of my amendment is to question why we should use the Bill as a vehicle for achieving something in the military that we have not yet managed to achieve on the civil side.

I am grateful to the noble Lord for his positive comments on the Explanatory Notes, and I echo the sentiments he expressed about the work done by the Bill team.

I am sure that the noble Lord will not be surprised that I cannot support Amendment No. 204 although it proposes inserting only one small word. It would prevent transitory arrangements being available to the services in respect of custodial sentences for persons over 18 but under 21 years of age. The sentencing provisions of the Bill have been drafted in the anticipation that the various changes in the civilian criminal justice system, introduced by earlier Acts of Parliament, will have been commenced by the time the Bill comes into force. In particular, it is anticipated that Section 61 of the Criminal Justice and Court Services Act 2000 will have been commenced. That section abolishes sentences of detention in young offender institutions and sentences of custody for life. It also prohibits a court sentencing a person who is aged at least 18 but under 21 years of age to detention under Section 108 of the Powers of Criminal Courts (Sentencing) Act 2000 for certain matters, such as default of payment of a fine or contempt, or making an order fixing a term of detention under that provision.

However, if Section 61 of the Criminal Justice and Court Services Act 2000 has not been commenced, we will need to provide for the service system to reflect the current civilian system and to align with Section 108 of the Powers of the Criminal Courts (Sentencing) Act. This amendment would not allow us to make that provision, and the services sentencing regime would therefore be at odds with its civilian counterpart.

I am most grateful to the Minister for that explanation. It appears that what I am after is going to be achieved anyway, but it will not be implemented before the civilian Section 61 is brought in. The Minister is obviously a great optimist to believe that, after six years, that will happen in the next couple of months—but I am entirely content with the amendment.

On Question, amendment agreed to.

moved Amendments Nos. 203B and 203C:

moved Amendment No. 203D:

moved Amendment No. 205:

moved Amendment No. 206:

I will be brief. We are all agreed that the Armed Forces Bill, once enacted, should be subject to the same renewal provisions as the current service discipline Acts. Parliamentary oversight and approval of these provisions is important. I have absolutely no doubt of the good intentions of the noble Earl, Lord Attlee, but I believe that the amendments achieve no more than the current wording. I will reflect on what he said about the need to emphasise these matters in certain quarters. In reality, however, it makes no difference whether these provisions are in one or two clauses and whether they come at the start or, as is the custom, at the end of the Bill. The important thing is that they are there. It may be helpful if I make it clear that, as the provisions of the new Act are brought into force, the related provisions of the existing Acts will be repealed. I hope that the noble Earl will agree to withdraw his amendment.

I absolutely agree that the drafting of my amendments makes no difference whatever to how the Act will work. My concern was presentational: Section 1 straight away, in your face, would say that the Armed Forces are under parliamentary and political control, whereas Clause 374, as drafted, is unintelligible. It does not matter technically. We all know that we need a continuation order, but my view is that it would be better put in Section 1. Perhaps the Minister would give that a little consideration. It is entirely up to him, of course. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 374 agreed to.

[Amendment No. 207 not moved.]

Clause 375 [Commencement]:

moved Amendment No. 207A: