moved Amendment No. 1:

My Lords, I welcome my noble friend’s amendments. As my noble and learned friend Lord Mayhew said in Committee, one of the principal aims of the Bill is to provide clarity for service people. It would seem right, therefore, that the same term should be used in each case, rather than “lawful” in some instances and “reasonable” in others.

My Lords, we have some sympathy with these amendments but perhaps the same position might be met in a different way—that it be recognised that there is a duty on the new Director of Service Prosecutions to act reasonably in bringing a prosecution. It is not in every instance necessary to prosecute someone for a breach of one of the provisions of the Bill. If—as perhaps has not always happened—the Director of Service Prosecutions were to act reasonably in making his decision, the fears of the noble Earl would be met.

My Lords, as I explained to the noble Earl in Committee, and as he correctly quoted, we believe that the existing clauses as drafted give the defence of lawful excuse, which is intended to allow a defence that an accused had express or implied authority or that his action was justified by law. Unfortunately, I do not have the military experience of the noble Earl and so, on the Floor of the House, I do not think that it would be appropriate for me to come up with military examples such as he describes. He has given a number of examples as we have discussed this matter, but I do not intend to go through them in detail and detain the House. Suffice it to say that we believe that the term “lawful excuse” is sufficient to cover the circumstances that he has described.

As the noble Earl said, “reasonable excuse” would give a wider defence and allow a court martial to look at all the circumstances and to decide whether it thought that the accused’s conduct was reasonable. The offences of assisting the enemy and obstructing operations are very serious, as they could potentially have a catastrophic effect on operational effectiveness and may, in the worst case, result in loss of life in our own forces. Amendments Nos. 1, 2 and 5 may well suggest to a serviceman that it was open to him to consider whether, for example, it was “reasonable” for him to give an enemy information that would be useful to it. I am sure that noble Lords will appreciate that the matters that are prohibited in Clauses 1 and 3 are so central to the operational effectiveness of our services and their operations that there is no room for grey areas. As the clauses are drafted, it is clear to all servicemen that they must not do these things unless a clear legal reason exists.

I share the view of the noble Lord, Lord Astor, about the importance of the Bill in providing clarity to our Armed Forces. We believe that the Bill gives such clarity. These are not matters that can be open to debate or personal discretion. What one man considers to be reasonable may be completely unreasonable when other matters are considered. In the present environment in which our Armed Forces so often operate, it would be unreasonable of us to place the burden on them of having to weigh up such decisions. It is far better that we give clear direction to the services on these matters—and that direction is that the matters listed in Clauses 1 and 3 are prohibited in the absence of a lawful excuse.

I strongly believe that it is appropriate that the narrower defence should apply to both those offences and, for the reasons stated, I cannot support the amendments. I urge the noble Earl to reconsider.

The remaining amendments in the group—Amendments Nos. 7 to 10, 20, 24 to 26 and 29—raise issues similar to the ones to which I have responded in my reply to Amendments Nos. 1, 2 and 5 and I do not propose to go further and detain the House by repeating myself. I reinforce our belief that the narrower offence of lawful excuse should be applied to the offences to which the noble Earl, Lord Attlee, has drawn attention. Offences that would be affected by these amendments are also likely to be the subject of orders, such as standing orders, which do not allow for personal discretion or debate.

My Lords, I am grateful to the Minister, but my basic point is that “implied authority” must be the equivalent of taking a reasonable course of action. Let me give a simple example: the Minister touched on giving the enemy information that would be useful to it. That is a common military tactic—it is called deception. Sometimes it fails, especially at a low level, and servicemen could find themselves extremely vulnerable under this charge.

I am afraid that I disagree with the Minister. However, it is far too early to start dividing, and I will not be returning to the issue again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 3 [Obstructing operations]:

[Amendment No. 3 had been retabled as Amendment No. 4A.]

moved AmendmentNo. 4:

My Lords, Amendments Nos. 4, 4A and 6 change the substance of the offence of obstructing operations. Amendment No. 4 seeks to add “without lawful excuse” to Clause 3(1)(a). It would mean that doing an act that was likely to put at risk the success of an action or operation would not be an offence if it was done with a lawful excuse. This cannot be right. The offence provides that such an act requires that the defendant must have intended or been reckless as to whether he prevents the success of the action or operation. But there can never be a lawful or even a reasonable excuse for preventing the success of an action or operation when there is an intention to do so or the person is reckless as to whether success is prevented.

The position on the next subsection is different. Here the Bill includes the defence of “without lawful excuse” in the offence of delaying or discouraging an action or operation. It is right that we have included “without lawful excuse” in relation to this offence because there may be good reason to do so. Indeed, there may be express or implied authority to do so. For example, it may be necessary to delay in order to await more troops. But the same, as I have said, can never apply to preventing the success of an action or operation.

Amendments Nos. 4A and 6 relate to the lawfulness of the action or operation for an offence to have been committed. This is a similar issue to that that arises later with regard to the offence of desertion. I understand the thinking behind these amendments, but they are simply unnecessary. Issues of international law are rarely straightforward, and members of the Armed Forces should not be expected to wrestle with the complexities of this field of law.

I dealt with these arguments in Committee in some detail, and I hope that your Lordships will forgive me for repeating myself. International law looks at Governments and states in relation to the legality of operations; it does not expect the ordinary serviceman or woman to assess whether an operation is sanctioned by international law. It would totally undermine the cohesion of the Armed Forces to provide, in respect of operations, for a member of the Armed Forces to obstruct an action or operation because he or she thought that it was unlawful or contrary to international law.

The law relating to whether a war or an occupation is lawful essentially applies at a national level. It certainly does not create a legal liability on service personnel who participate in it. The law which applies to them is the law in relation to the conduct of that operation.

The decision to go to war is for the Government of the day, and we take our legal obligations, both domestic and international, extremely seriously. Any decision to take military action is carefully considered in all circumstances, and legal advice is obtained at the highest levels. I hope that with this explanation the noble Lord feels able to withdraw the amendment.

My Lords, I have not heard an explanation that satisfies me about the distinction between Clauses 3(1) and 3(2). I am concerned about the response to the other amendments; that is, my attempt to insert “lawful” in the appropriate places. I have no doubt that before any action is taken by way of warfare, that action is carefully considered, as the Minister said a moment ago. But I am not asking a serviceman to grapple, as he put it, with international law. I am saying that if he is brought before the courts and his defence is that the action was unlawful, it is not enough for the prosecution to say, “It is a matter of national law, the Attorney-General has decided that it is lawful, and the courts cannot interfere”. That excludes the jurisdiction of the courts, which cannot be right. At the end of the day, it must be for the courts to determine whether an operation and the orders that depend upon it are lawful.

As the noble Earl, Lord Attlee, said, it is early in the afternoon, but this is a matter of such important principle that I would like to test the opinion of the House.

moved Amendment No. 11:

My Lords, I thank the Minister for taking note of the points that I raised in Committee. I am happy with the amendment.

On Question, amendment agreed to.

moved Amendment No. 12:

moved Amendment No. 13:

My Lords, I must advise the House that if Amendment No. 14 is agreed to, I cannot call Amendments Nos. 15 to 19 by reason of pre-emption.

Clause 8 [Desertion]:

moved Amendment No. 14:

My Lords, I shall speak to Amendment No. 18, which is in this group. Ideally, I should have liked to speak to this amendment separately but, in view of our procedural ruling, there may not be an opportunity to speak about the importance of Amendment No. 18 if Amendment No. 14 prevails.

I make plain that I feel as strongly as anyone about the seriousness of desertion; I do not want any misunderstanding on that score. Desertion can be a literally terrible offence. In the modern technological services, the implications of desertion can be even greater than was ever imagined in the past. The desertion of a key person could have huge implications for the whole operation and for the well-being and safety of comrades and colleagues.

In his earlier amendments, concerning the word “lawful”, the noble Lord, Lord Thomas of Gresford, dealt at some length with the arguments. Although his arguments did not prevail—I was sad about that—they were very powerful and I shall not repeat them all now. As the noble Lord kindly remarked, in Committee I tabled an amendment about the word “legal”. I listened very carefully to the Minister's reply and recognised that he and the Government believed that there were complexities relating to the interplay between international and domestic law. In view of the significance of the arguments put forward by my noble friend, I decided that, although I believed the issue remained vital, it was important to address it with slightly different wording.

Perhaps I may anticipate an argument which the Government may deploy against my amendment and which the Minister used in dealing with a previous amendment. It is the suggestion that ordinary serving men and women should not really be worried about the implications of international law, as that is something for Governments. I am not persuaded by that argument. It seems to me that an individual serviceman who does something that is not lawful is, in the end, responsible for his action and can be brought to task for it very properly.

My Lords, I oppose Amendment No. 18. We have heard another passionate and lengthy recital, as happened on Clauses 3 and 8. The noble Lord, Lord Judd, knows perfectly well that he has done little but repeat what was said then. He also knows that the noble and gallant Lord, Lord Bramall, and my noble and learned friend Lord Mayhew have rightly advised the House that the question of lawfulness the noble Lord goes on about is not a matter for the serviceman. It cannot be. In the field, it is wholly impractical to expect it to be. According to the noble and gallant Lord and my noble and learned friend, it is not a matter for the serviceman or the courts of law but for the Attorney-General in the exercise of his supervisory role.

My name is attached to Amendment No. 14. I do not propose to repeat anything that the noble and gallant Lord, Lord Craig of Radley, said. I agree with all of it; it was most neatly and eruditely prepared. I shall, however, make a short point. Listening to the noble and gallant Lord, I thought, as your Lordships may have done, that he made a good case for essentially retaining what we know has worked reasonably well and is satisfactory. I think that the noble and gallant Lord has thus far been unable to discover any breakdown or hint of criticism.

Why, then, resort to primary legislation without a clear, reasoned justification? The noble and gallant Lord got none on the previous occasion. He sowed his seeds of wisdom in Committee, which bore fruit on mutiny but fell on barren ground with desertion. Desertion is essentially a question of intention: you move from being absent without leave to desertion as a matter of intention. There seems little justification for meddling with the extant system, for the reasons that the noble and gallant Lord has given.

My Lords, I fully support Amendment No. 14 tabled by the noble and gallant Lord, Lord Craig of Radley, who, as my noble friend Lord Campbell of Alloway said, made a good case.

The amendment would provide a far more satisfactory definition of desertion than Clause 8. As the noble and gallant Lord has said, it would continue to use the current statutory definition, familiar to members of all three services. The language used in the amendment of the noble and gallant Lord has the advantage of both clarity and continuity.

On Amendment No. 18, I echo wholeheartedly what my noble friend Lord Campbell of Alloway said.

My Lords, I have not previously intervened in your Lordships’ debates on this Bill. My plea in mitigation is that there has been nothing in the Marshalled List in the terms raised by my noble friend Lord Judd’s amendment. I hope that the noble and gallant Lord, Lord Craig, will pardon me if I address that amendment.

I congratulate my noble friend on posing a question that causes concern to a number of young people in many parts of the world. I accept at once that it does not admit of an easy answer. It is part of a larger question and it may help to consider it in context. It has a long ancestry. It really consists of two questions. If a soldier is commanded to do an act that is a criminal offence, should he be excused from military discipline for refusing to obey? That gives rise to the converse question. If he carries out the command, should he be excused from criminal responsibility on the ground that he is acting in obedience to superior orders, a matter raised earlier in our proceedings today by the noble Lord, Lord Thomas of Gresford?

We are presented with a conflict between two principles. The first is the constitutional principle that the military is subject to the law, as we all are. It is its constitutional duty to recognise that it is subordinate to the civil authorities. A military commander has no power in law to excuse a subordinate from complying with the criminal law. The second principle—of course I accept entirely what was said by the noble Lord, Lord Campbell—is that an army requires discipline if it is to be effective. If every order evokes a debate, an army simply cannot function. Traditionally, that dilemma has been addressed in two ways. First, it has usually been provided that a soldier commits a disciplinary offence only by refusing to carry out a lawful order. That reappears in this Bill in Clause 12—

My Lords, this is for clarification. That affects the constitutional position, I think. Does the noble and learned Lord draw any distinction between an order given on the field of action in armed combat and an order not given in those circumstances?

My Lords, if the noble Lord will forgive me, I hope to come to something approaching his question in a few moments. He asks whether I draw a distinction. I am not clear that I can draw a relevant distinction. If there is such a distinction, I have not heard it formulated.

I was going to say that, traditionally, a soldier commits a disciplinary offence only by refusing to carry out a lawful order. It appears in Clause 12. As my noble friend Lord Judd pointed out, it is referred to in Clause 1. Fairly clearly, it underlies a lot of the thinking on military discipline and has been reappearing in military disciplinary provisions for a long time. Secondly, most systems have accepted that a soldier commits an offence against the criminal law in obeying an order only if that order is clearly unlawful. That has become known as the doctrine of manifest illegality. It goes well back in history—it was provided for in the Roman army. A soldier was given a window of escape from his dilemma. It would be possible to avoid both prongs of the fork. It worked reasonably well when a soldier was expected to be a trained automaton. His duty was to obey an order instantly and unreflectively. More recently, as my noble friend has pointed out, and particularly since the Second World War that position has changed. First, before enrolment, soldiers are expected to attain impressive standards of education. They are encouraged to show initiative and to reflect on what they are doing. A soldier is no longer an automaton. Secondly, questions arise in a wider context—and we come to the question posed to me by the noble Lord, Lord Campbell. We are all being subjected not only to our domestic legal systems, but also to a developing international legal order, and people with no pretension of being international lawyers debate whether a particular war is a lawful war.

Even that dilemma is not new. Martin Luther addressed it when he said that there was no blame attaching to participation in an unjust war, unless it was manifestly unjust. That may not necessarily be persuasive to everyone. Napoleon said that questions of theology were for the next world. But von Moltke said that he opted for what he called,

“an army which does not deliberate”.

That has sometimes been misunderstood. What he meant was not that the military should be unrestrained but that it should carry out the instructions of the civil authority without question. There we find ourselves perhaps parting company with some of our friends. Even the instructions of the civil authority are not ethically conclusive. Someone may say, “Even if my Government command me to do something, that does not necessarily silence my conscience”. In the last resort we cannot pass responsibility for our actions on to the shoulders of others.

My Lords, as I said in Committee, Amendment No. 14, tabled by the noble and gallant Lord, Lord Craig, brings clarity to the desertion provision in the Bill. The provision was clear before in previous legislation. I have read in detail the Minister's remarks in response in Committee but I still do not understand the advantages that the new wording would give us.

There is the idea that the new wording will in some way constrain the offence so that it applies specifically to active service. Our Armed Forces today may not always be in the theatre of operation, but they are all participating in contributing to active service. It seems that, in order to make those constraints, the government proposals are trying to define things too neatly and finely. There was clarity before. So I support the amendment of the noble and gallant Lord in all but one respect, which is covered by my amendment, Amendment No. 19—that amendment will of course fall if we agree to Amendment No. 14, but I give notice that I will return to the question of the maximum punishment if Amendment No. 14 is agreed to today.

I will not prolong the debate on AmendmentNo. 18, to which I have added my name. We have heard cogent arguments from the noble Lord, Lord Judd, and the noble and learned Lord, Lord Archer of Sandwell. There are concerns that need to be addressed when we describe responsibilities under international law. The noble Lord, Lord Judd, made the important point that we are legislating for unknown futures. I welcome the fact that, in the same way, if the amendment of the noble and gallant Lord, Lord Craig, is accepted, we will have another opportunity at Third Reading to consider Amendment No. 18.

My Lords, I follow my noble friend Lord Garden in congratulating the noble Lord, Lord Judd, on his usual passionate espousal of the rule of international law. I also congratulate the noble and learned Lord, Lord Archer of Sandwell, whom we have missed in our deliberations, on a very thoughtful and wide-ranging speech—ranging not only into history but internationally.

Both noble Lords made the point that, inClause 12, the offence is refusal to obey a lawful command. It is therefore a defence to that charge to say that the command was not lawful. Why, therefore, should it not be a defence to a charge under Clause 8 that the operations referred to were unlawful? I appreciate the position that has been so fervently expressed by the noble Lord, Lord Campbell of Alloway, who takes the view that the Attorney-General is the final arbiter of whether the actions or operations are lawful. I do not accept that. I believe that it should be justiciable. Just as it is possible for a defendant to a charge of refusing to obey a lawful command to argue in a court for a decision that the command was unlawful, it should be possible—

My Lords, what is really worrying me is that there is a convention on Report that one does not go in for a long histoire of matters that have already been debated. I have tried to be brief. I shall not take any more time, but I do not think that it is right to resuscitate matters that have been debated at great length in Committee.

My Lords, I beg to disagree. Although it is right that we should confine ourselves so far as we can on Report, the principles behind a particular issue become clearer as the debate goes on. The importance of those issues is also highlighted. So it is here. Where we are dealing in essence with a constitutional matter, it is important that it should be expressed, particularly if we are going to vote on the matter, which we did not do in Committee.

The Crown’s prerogative—used to declare war, to send our troops into operations, and so on—must at the end of the day be subject to scrutiny. If the exercise of that prerogative is illegal, the domestic courts of this country should be able to say so. It is not a question of the particular defendant, when he deserts or refuses to obey a command, getting a book on international law to see what the situation is; it is a question of whether, later in the courtroom, he can argue legality or illegality before the people who are charged with deciding such questions properly, should Her Majesty’s judges decide whether Her Majesty’s Ministers have taken a legal action.

I fully support Amendment No. 18. Although Amendments Nos. 15 to 17 are listed in a later group, I shall not address your Lordships any further in the subsequent debate.

My Lords, we have sought in Clause 8 to modernise and limit the offence of desertion. The first change that we are making is to remove the current maximum penalty of life imprisonment for all cases of desertion. This maximum was applied to all desertion cases by the Armed Forces Act 1971. The second is to remove the test for desertion or absence without leave to avoid any service overseas or when before an enemy, and to replace it with the narrower test of avoiding “relevant service”, which covers the sort of service that is often called “active service”.

The noble and gallant Lord, Lord Craig, and the noble Lord, Lord Campbell, have asked why perfectly good drafting in the current discipline Acts should be changed. The changes to the drafting have two aims. The first is to limit the offence—we do not think that it is right that there should be a specific offence to avoid any service overseas. The second is to limit the circumstances in which a maximum sentence of life imprisonment is available. We therefore could not leave the offence as it is. The current offence is too broad but, because it is broad, it has the attraction of being stated briefly.

We believe that it is right to make the changes that I have mentioned, but I recognise that it has resulted in complexity. The noble and gallant Lord, Lord Craig, has been unflagging in his efforts to persuade me that we could do better. His drive to achieve plainer English for our Armed Forces is to be commended, and I must say that, on further reflection, I think that he has a point. I have therefore decided to have one last look at the drafting of Clause 8 with a view to simplification. I think that we should be able to achieve an improvement and I hope to bring forward a simplified version of the clause at Third Reading.

My Lords, I have not yet spoken to my amendment about life imprisonment. It is in a separate group.

My Lords, I thank the noble Lord. The noble and gallant Lord, Lord Craig, asked two questions about the definition of “relevant service”. The first is about the meaning of operations,

“for the protection of life or property”.

The second is about the meaning of “military occupation”. Those expressions have very well established meanings and are used in the current definition of “active service” in each of the current service discipline Acts.

An operation to protect life and property simply refers to where our Armed Forces may take part in operations abroad in response to a threat to people or to physical property of any sort, so long as the threat is great enough to justify the operation. Clear examples of this would be operations to evacuate civilians and safeguard their property in the event of a national disaster or a local conflict, such as occurred respectively in Montserrat or more recently in the Lebanon. The definition of “property” in the Bill, like that in the existing Acts, relates to clauses dealing with property in the UK, and so does not apply to this clause, which specifically relates to operations overseas.

Military occupation involves the idea of control. It is therefore limited to where our forces, perhaps with allies, have established military control of a foreign area or country whether or not there are also civilian authorities. It does not therefore cover a situation in which we are present abroad either fighting to establish control or where we are there at the request of the foreign Government. For example, before reunification our Armed Forces in Berlin were one of the occupying forces. But in West Germany our forces were of course not in occupation of the country. On that basis, I hope that the noble and gallant Lord will withdraw his amendment.

Under Amendment No. 18, it would not be desertion to go absent without leave to avoid service in a military occupation unless that occupation was fully in accordance with international law. We expect all members of the Armed Forces to be aware of their personal responsibilities under international law. They are trained in such important matters as the respect for property and the proper treatment of prisoners, enemy wounded and civilians caught up in the conflict. These personal responsibilities are ones for which a deliberate breach brings criminal liability.

However, the decisions to go to war and to occupy a foreign state are matters for government and Parliament, and are subject to democratic accountability. I would add that even Governments and Parliament find the issues of what international law requires or prohibits extremely difficult. I therefore believe that it would be wrong in principle to remove from members of the Armed Forces their obligations where they consider that an occupation is not in accordance with international law.

There is another reason. Of course it is right that members of the Armed Forces, like all citizens, should consider the rights and wrongs of operations in which they take part. They should exercise their democratic rights on the basis of what governments expect them to do. But it is another thing to provide that a member of the Armed Forces may in such a situation simply desert his colleagues and his duties. That in my view is the wrong thing to do. I believe that nearly all members of the Armed Forces would agree. To allow it would be tantamount to telling all other service personnel who stayed to do their duty that they were misguided. I cannot imagine what effect this could have on morale and on operational effectiveness.

My noble friend Lord Judd has asked why Clause 1 refers to international law. He pointed out that the clause makes it an offence for service personnel captured by an enemy to assist the enemy in any way,

“not authorised by international law”.

He said that this would require the prisoner to consider what international law requires and asked what objection there can therefore be to allowing members of the Armed Forces to decide whether an occupation is in accordance with international law. I have already indicated where I believe the difference lies. The responsibility for undertaking operations is not on the individual; it is a responsibility of states and a matter for democratic control. Captured members of the Armed Forces should not generally assist the enemy, and Clause 1 rightly makes that an offence. But the Geneva Conventions recognise that captors may require prisoners of war to do certain types of work, so it would be quite wrong for a prisoner to be guilty of assisting the enemy where he has simply done what international law allows his captors to require him to do. Our personnel are trained on their rights if captured and they will know when they may be required to work.

My noble and learned friend Lord Archer of Sandwell asked whether a soldier can disobey an order to commit a crime. On this point I can give a reassurance to my noble and learned friend—a serviceman does not have to obey an order to commit a crime. However, Amendment No. 18 is different; it is not about crime. It allows a soldier to desert if he is serving in occupation of a foreign country and that occupation does not have the full backing of international law.

I hope that, with the explanations and reassurances that I have given, the noble and gallant Lord will be persuaded to withdraw his amendment.

My Lords, I should like to thank the Minister most sincerely for the way in which he has sought to reconsider Clause 8. I accept that more work needs to be done on it, but in the mean time I should just like to put on the record my warm appreciation of the way in which the Minister has responded to the points that I have made both on this clause and on an earlier one. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

[Amendments Nos. 15 to 18 not moved.]

moved Amendment No. 19:

My Lords, we cannot support the amendment. As the noble Lord, Lord Garden, acknowledged in Committee, recently a full life sentence has been used very sparingly in desertion cases. None the less, it remains a crucial sanction to retain. We have heard many times in this House how discipline is central to the success of our Armed Forces. Desertion has been identified as perhaps the biggest threat to discipline and is among the worst offences as viewed by fellow soldiers. Service men and women need to be able to rely on one another absolutely. In some cases, the potential threat of life imprisonment is essential to ensure that soldiers continue to carry out their duty while on dangerous operations. As the noble Lord, Lord Judd, said earlier, a key person deserting could have huge implications for an operation.

My Lords, as I have already said, in Clause 8 we have sought to modernise and limit the offence of desertion. One of the changes that we are making is to remove the maximum penalty of life imprisonment for all cases of desertion. This maximum was only applied to all desertion cases by the Armed Forces Act 1971. We recognise that in some cases it is not appropriate for an offence of desertion to carry the maximum penalty of life imprisonment. However, we are not persuaded that in the most serious cases—that is, when a serviceman is on relevant service—he should not face the possibility of life imprisonment.

“Relevant service” is the kind of service in which all involved need to be able to rely completely on everyone else involved—a reliance and trust that are undermined where a member of the service leaves his colleagues without permission. It is also the kind of service in which the success of an operation can depend on every member of the force involved. As I said on 24 July, leaving your mates in the lurch at the time they need you most by deserting in the face of dangerous operations is viewed in the Armed Forces as just about the worst thing you can do.

I have listened carefully to the arguments that have been made both today and in Committee on this matter, but I do not think that the case has been made for the reduction in the maximum sentence envisaged in the amendment. In such circumstances, a maximum sentence of life imprisonment may be appropriate in an extreme case and should be available as a maximum for a court martial. I trust that the noble Lord will see the requirement for retaining the sentence of life imprisonment in the limited circumstances in which it will continue to be available and understand why I cannot support the amendment.

My Lords, I thank the Minister for his not unexpected reply. I do not doubt that in the past his predecessors said the same about execution being the best way to encourage the troops to do their job. One has to make a judgment about what is proportional—and life imprisonment is not proportional, in my view, in this case. I would like to test the opinion of the House.

moved Amendment No. 21:

My Lords, I am grateful to the noble Lord, Lord Garden, for again giving the House the opportunity to discuss this important issue. Amendments Nos. 21 and 22 seem to constitute a valuable change, which takes account of the realities of operations. I am also sympathetic to Amendment No. 23.

My Lords, I am grateful to the noble Lord, Lord Garden. My previous remarks on performance-enhancing drugs and the very few occasions on which they might be needed are probably covered by Clause 20(2)(a), which stipulates that a drug should be,

“taken or administered on medical advice”—

one would get medical advice—

“and A [a person] complied with any directions given … of that advice”.

I do not have a problem with that provision.

My Lords, Amendments Nos. 21 and 22 seek to make it a defence that a drug was taken on the advice of any superior officer. These two amendments are unnecessary as the situation which I believe the noble Lords are concerned about is where a superior officer advises a serviceman that he should take certain drugs to guard against the effect of chemical or other weapons. If a superior officer advised a serviceman to take such drugs, he would do so on fully considered medical advice. For this reason the serviceman would have a defence to a charge of unfitness through drugs by virtue of subsection (2)(a) if,

“the drug was taken or administered on medical advice and [he] complied with any directions given as part of that advice”.

I am confident, therefore, that the clause contains safeguards that address the concerns that noble Lords have raised. I urge the noble Lord to reconsider the amendment.

In my letter I made the point that it is important that the advice is given through the chain of command. The chain of command would therefore give the advice based on considered medical advice given to it.

Amendment No. 23 provides for an additional requirement when administering drugs for “operational performance enhancement” reasons. I take on board the noble Lord’s point about the potential development of such performance enhancing drugs. I have considered the matter further. It is important to state specifically that the drug must be authorised by the Secretary of State and requires the written consent of the individual.

There is no policy specifically relating to the authorisation of so-called performance-enhancing drugs. Indeed, we have no agreed definition of what constitutes such a drug. This is a developing area of research and at present we do not sanction their use by service personnel. I believe that the concern is that in the future members of the Armed Forces might be required to take them. As the noble Lord says, this Bill looks to the future and therefore we should think about that matter. We have thought about it. The important point here is that, were we to move in this direction, such drugs would be subject to the current arrangements that cover all drugs. Singling out performance-enhancing drugs is neither helpful nor necessary. No matter what its purpose, each drug should be looked at on its own merits through a medical assessment of the risks and benefits. The assessment would then be made of whether it would be beneficial, or indeed lifesaving, to the servicemen.

Normally, as I have said, drugs are administered to members of the Armed Forces on the basis of advice, considered medical advice and then informed consent. Personnel would not normally be ordered to take drugs. If they were to be ordered to take drugs, that would be done only with the express agreement of the Secretary of State acting on legal and medical advice. Apart from the difficulties of the definition of performance-enhancing drugs, I do not see the need for a specific clause about them. I hope that reassures the noble Lord.

My Lords, I am grateful to the Minister for the very helpful response to both questions that I raised. I take his assurances on my first two amendments on advice. I would welcome some clarification in writing perhaps about the question of relative rank, because I have not quite got my head around that yet.

We have had a useful exchange on performance-enhancement drugs. I accept that we are looking at an uncertain future, and the noble Lord has given some assurances about how these drugs will be handled. The only thing that concerned me slightly was that he appeared to want to lump performance-enhancing drugs into the same category as those that either cure illness or prevent infection and the like. There are wider arguments, but this Bill is not the place for them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 22 and 23 not moved.]

Clause 24 [Damage to or loss of public or service property]:

[Amendment No. 24 not moved.]

Clause 31 [Hazarding of ship]:

[Amendment No. 25 not moved.]

Clause 32 [Giving false air signals etc]:

[Amendment No. 26 not moved.]

Clause 36 [Inaccurate certification]:

moved Amendment No. 27:

My Lords, these necessary amendments extend the scope of Clause 36 and the offence of inaccurate certification to beyond ships and aircraft. We argued for that change in Committee and I am grateful to the Minister for his response. Although Amendment No. 28 is perhaps vague at first glance, I fully accept his argument in favour of flexibility and I am pleased that he has left it to the Defence Council to prescribe descriptions of equipment to which the offence will apply. That will allow the Armed Forces themselves to influence which equipment is covered by the offence. Therefore, we welcome and support these amendments.

My Lords, We, too, welcome the amendment. The Minister wrote to me on 23 October to explain how he had taken on board my concerns expressed in Committee about the narrowness of the inaccurate certification clause. I am pleased that he has brought forward these amendments, which will allow the regime of certification to meet future challenges.

However, the annexe to the Minister’s letter stated that the situation remained that testing and checking of all land equipment did not involve a formal certification procedure and that such a procedure would not be practical or useful. I understand that the Minister believes that he needs to look at the issue on a case-by-case basis, and that is important, but the letter gave the impression of there being closed minds within the land systems staff. As the services work more closely together, they need to pick up best practice from each other. Lives depend as much on proper servicing and checking of audit systems on land as on the sea and in the air, where the services have been more practised in that.

I welcome these amendments, but perhaps the Minister might wish to keep an eye on this matter, outside the confines of the Bill.

My Lords, the noble Lord is right to be alive to the nuances of such language. I am focused on this area and recognise, given the changing technology of our land systems, that these issues are as relevant to complex land systems as they are to the maritime and air environments. I shall keep my eye very carefully on them.

My Lords, I, too, am grateful for the amendment. One of its advantages is that most people in the Armed Forces will not bother to look at the Defence Council regulations, but it will concentrate their minds in that they must not sign a false certificate.

On Question, amendment agreed to.

moved Amendment No. 28:

moved AmendmentNo. 30:

My Lords, this is an important matter, so I will speak to it in some detail. Amendment No. 31 seeks to prevent civilians who are under 18 being tried before a court martial. As the noble Lord, Lord Thomas of Gresford, said, on24 October the European Court of Human Rights gave its judgment in the case of Martin. We need to be clear what it decided.

As we have heard, the case was about the son of a serviceman who was tried by court martial in 1995 for the murder of a civilian in Germany. The court martial was subject to the same objections as were found to exist in the Findlay case in 1996, and which were remedied by the Armed Forces Act 1996. So it is no surprise that the European court also decided in Martin that the court martial was not compliant. The court did not decide that courts martial should not try civilians or that they should not try civilian juveniles, but it stated the important principle that a military jurisdiction should only be exercised over civilians if there are “compelling reasons” to do so. In Martin, there was the possibility of civilian trial in the UK, because the charge was murder. The European court did not decide whether there had been compelling reasons for a court-martial trial. It did not need to, because, as I have said, it decided the case on the basis that the court martial was not compliant. It did not go into what it thought would be compelling reasons. In the Martin case, the reasons for court-martial trial were mainly to do with the availability of witnesses, most of whom were German. But there were other factors.

My Lords, will the Minister accept that cases are being tried in this country in which witnesses are being brought from all parts of the world, including Iraq?

My Lords, I accept the noble Lord’s point. In the Martin case there were other factors. Besides his age, Martin was no longer subject to service law. He had been back in the UK for over a year and his father was no longer in the Army. The European Court of Human Rights commented that it had “considerable doubts” about whether it would have found the reasons for court-martial trial “compelling”. I believe that we should provide for all civilians subject to service discipline to be subject toa system of investigation and trial which will apply the criminal law of England and Wales, which conducts its proceedings in English and which is ECHR compliant. This is especially important for contractors and others who increasingly accompany our forces on operations abroad.

The noble Lord, Lord Thomas of Gresford, this evening stated that civilians subject to service law should not be subject to trial by court martial for any offence in the UK carrying life imprisonment. I should make it clear that a civilian is never subject to service law for offences committed in the United Kingdom. That jurisdiction only applies to the services abroad.

My Lords, the amendment does not confine itself to civilians. It refers, as does the current Army Act, to serving soldiers or service personnel, as well as to civilians subject to service law.

My Lords, I am grateful to the noble Lord, but I thought that it was important to make that point.

It is in the vital interests of the services, the civilians who live and work with them and the civilian population among whom they operate that there is a fair and robust system of justice outside the United Kingdom to deal with offences by civilians, as well as service personnel. We must recognise that the use of civilians deployed with our Armed Forces has increased in recent years. This is the reason for our general approach in this area.

The largest constituency affected is our service families overseas. We realise that 20,000 or so children accompany them. This presents real challenges. We must accept, however, that from time to time these under 18s may commit serious offences against other service dependants or even against service personnel in UK service bases overseas. In these circumstances, as the noble Lords, Lord Borrie and Lord Kingsland, have said, the foreign local jurisdiction may be highly undesirable. Even if it affords a compliant court, it will not apply the law of England and Wales and may not conduct proceedings in English. I believe that we would be failing in our responsibilities if we did not provide that. Of course we must ensure that the court martial makes proper provision for juveniles and I know that judge advocates receive the same training as Crown Court judges in this respect.

Amendment No. 35 seeks to permit service personnel and civilians subject to service discipline to elect trial before civilian courts in the United Kingdom where those civilian courts have extra-territorial jurisdiction. I start by restating two key principles that underpin the Bill and with which, I am sure, no noble Lord would disagree. The first is that our Armed Forces require a separate system of military justice. The second is that the service system must underpin service discipline at all times. The military context in which offences occur is important in operational and non-operational environments. Although it is not absolutely clear, it appears that the purpose of Amendment No. 35 is to permit service personnel and civilians subject to service discipline facing the most serious criminal charges to elect trial before the civilian courts. It therefore undermines both the key principles just described. Giving such persons the right to opt out of the military justice system, which would be the effect of the amendment, would have a detrimental effect on its standing. It would suggest a lack of faith in the service system, and that the military context is not crucial to the handling of serious offences committed in the service environment.

I am convinced of the case for a separate military justice system. I recognise the importance of the military context. I believe that our military criminal justice system is competent and compliant. The military justice system is well able to deal with the most serious cases. The recent decision of the Judge Advocate General to appoint a High Court judge to a court martial and the willingness of service prosecutors from time to time to instruct civilian counsel demonstrates that, on those rare occasions when specialist experience is required, the military justice system can import it. The result is that the most serious and complex cases can be dealt with and the system, in turn, commands the confidence of the public and the Armed Forces. It is not hard to envisage circumstances where the interests of justice might be best served and victims’ rights best protected by trying charges together. The amendment would prevent exactly that, where a series of serious criminal offences included some committed overseas. Similarly, if the alleged offences included both criminal conduct offences and service discipline offences, should the accused be able to force separate hearings? Again, that cannot be right. A key characteristic of the military criminal justice system is that it is able to conduct trials anywhere in the world. In recent years courts martial have sat in the United States, Belize and the Falkland Islands, and there is a trial pending in Brunei later this year. Trials overseas often make good legal as well as military sense. There are many reasons for a portable, effective and, of course, compliant court-martial system. Making that system a hostage to the preference of the accused in the way proposed would not work.

In response to Amendment No. 31, I have set out our position on civilians subject to service discipline, following the recent case of Martin. I believe that our military system is compliant and that it delivers a high-quality system of English law in the English language, anywhere in the world. However, if, on consideration, we need to make changes in the light of the judgment, we will do so. Powers already in the Bill make that possible. In doing so, we will take careful account of any requirement of compelling circumstances regarding the trial of civilians subject to service discipline. For the reasons I have given, I hope that the noble Lord will withdraw his amendment.

My Lords, the very point I seek to make is that the European court has held that the system is not compliant. It is not enough for the Minister to come here three or four days later and say “I believe it to be compliant” when the European court has held otherwise. It is therefore for the Government to make a proper response. For that reason I will not be pressing Amendment No. 31 tonight.

On the broader issues, of course I accept that there should be a military disciplinary system. I said in Committee that it is right that defendants should be tried in such a way overseas. The point about Amendment No. 30 is that it relates to offences in this country—murder and rape in this country. Why should a defendant, because he is a soldier as opposed to a policeman or a postman, find that somebody chooses to try him by a court martial rather than allowing him the greater procedural safeguards in the Crown Court?

The most obvious procedural safeguard, which we will debate shortly, is the requirement for unanimity in a jury or a majority verdict of 10 to two. As your Lordships are aware, in a court martial only a simple majority is required. If five officers sit they can decide guilt by three to two—or innocence by three to two if it comes to that. Similarly, if three are sitting they can decide on offences—to which life imprisonment is annexed for offences committed in this country, if the amendment to the Act that the Government propose goes through—by a simple majority.

Why should a serviceman, or a civilian subject to service discipline, be tried on these important issues for an offence committed in this country by a number of officers, with perhaps one warrant officer sitting in? Maybe we should go back to Cromwell's days. Maybe the court martial system is so great that we should get rid of juries altogether and have military commissions sitting all over the country deciding guilt or innocence. The fact that a person is a serviceman or the son, daughter or wife of a serviceman, should not mean that he is to be treated differently for an offence committed in this country. That is Amendment No. 30. I will come back to that because, as I said, I wish to broaden the area of the exceptions.

Amendment No. 35 extends slightly a provision that has existed in our law for 150 years, since 1861. No reason given by the Government for rejecting any of these amendments carries any logical sense other than to state over and over again that we must keep military discipline. That is not, in my submission, a proper way to approach legislation of this sort. I beg leave to withdraw Amendment No. 30.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

moved AmendmentNo. 32:

moved, as an amendment to Amendment No. 32, Amendment No. 33:

My Lords, I am particularly anxious to get at least into the proceedings of the House, if not into the Bill, the last fourwords—“made in good faith”—in proposed new subsection (2) of Amendment No. 32, in my name and that of the noble Lord, Lord Campbell of Alloway. Noble Lords will realise that it is absolutely essential—this has been said many times, most recently by the noble Lord, Lord Kingsland—for a solder in an operational situation to have confidence in everything around him. He must have confidence in his chain of command, confidence that if he is wounded he will receive immediate and first-rate medical attention, and confidence that, if he is brought into a situation where he is required to take action that may result in killing someone or opening fire on people but where he acts in good faith under the orders that he has been given, he will be dealt with fairly and consistently under the law by that chain of command.

It is very difficult to describe “good faith” absolutely and precisely. In the same way, I am very grateful to the noble Lord, Lord Kingsland, for the way in which he described not the prescriptive nature of rules of engagement but the rules of engagement as a framework, whose statutory force, which again is not prescribed, is essential in order that our Armed Forces can have confidence that, if they act in good faith within that framework, they need not fear anything from the chain of command—or the legal chain of command, as it were—that goes with it. That is why I am pleased that the amendments in the name of the noble Lord, Lord Kingsland, stand with Amendment No. 32.

My Lords, these are ingenious amendments or, more accurately, a new clause and amendments. If they are carried, perhaps with a little alignment or tidying up, they will serve as a very present help in times of trouble. Properly understood, they would do so without impinging on the doctrine that being obedient to an unlawful order is no excuse. Nor would they breach the principle that disobedience to a lawful order should attract punishment. They would also provide a fair criterion for visiting a serviceman’s conduct when engaged in armed combat with criminal liability in a proper case. This is a fair criterion, because it is realistic. If it were not realistic, it would not be fair.

There are circumstances that impose on a serviceman who is required to engage in armed combat a degree of stress that must be unique in any field of employment. Of course, it is possible even when engaged in armed conduct to behave in such a way that by any standard and by any criterion one is guilty of murder. No one suggests that that is not so. Equally, no one suggests that those circumstances are such that they always can properly lead to a conviction for murder. To put it another way, no one has suggested that the circumstances of combat are such that the offences of murder or manslaughter are legally incapable of being committed. They plainly are so capable. The amendments seem to address the availability of liability to conviction.

A point that has been made before more persuasively and vividly than I can make it is whether a soldier has done what he has done in the heat of action and in the fear of action, which is perhaps more important, or whether what he has done was in breach of the common law of manslaughter or murder. That cannot sensibly be determined by a fine examination of the matter months later in a prosecutor’s office. The nearest thing to a bang that would be heard there is when Archbold’s Criminal Practice falls off the desk. Still less can we realistically expect a soldier in action to perform this exercise for himself. Surely what the soldier steers by are his rules of engagement and the orders made pursuant to them, as has been pointed out by my noble friends Lord Kingsland and Lord Campbell of Alloway, which can and frequently are varied—and the latest version is all that the soldier can reasonably be expected to bear in mind.

I suggest that justice requires that the soldier knows when he is sent into action that his conduct will be judged thereafter by a test that is fair and simple, which should be something like this: “You are subject to the rules of engagement and rules made pursuant to them, and if you come through this action you will in any event be safe from prosecution provided that you have not deliberately set out to disobey any of them”. The soldier will understand that: it is simple, clear and fair. That is the just way to order things. It will remove the lurking fear, which soldiers have spoken of so frequently and so recently—we have all read it—of a civilian prosecution process that is unfair because it fails to take cognisance of the exigencies of armed combat.

My Lords, we are very sympathetic with the thinking behind these amendments, although we are not very happy with the actual wording. It should be quite simple: if a serviceman acts within the rules of engagement, he will not be prosecuted—never mind convicted. He will not have—as certain servicemen have arising out of the Iraq conflict—years of worry that prosecutions are pending against him. It should be one of the foremost principles on which the Director of Service Prosecutions acts. He should consider, where the rules of engagement were conveyed to the proposed defendant, whether the defendant deliberately breached those rules and, if so, what the consequences of that were.

The noble Lord, Lord Ramsbotham, said that the question is whether the soldier acted in good faith. He pointed out that there are difficulties in defining “in good faith”. The noble Lord, Lord Kingsland, said that a soldier should know where he stands. In the case of the paratroopers tried at Colchester last September—I declare an interest in that I was involved on behalf of one of them—it was apparent that no thought had been given in the prosecution to what the rules of engagement were at the time. The defendants were a platoon of soldiers who had been patrolling in the Maysan province. As far as they were concerned, they had been told by an officer, “Well, it’s back to Northern Ireland rules now. We have just won this war”. In fact, it was not and those were not the rules of engagement. The rules of engagement that were still in force at the time of the incident with which they were concerned were the rules of engagement that were employed on the invasion of Iraq—to seek out and destroy the enemy. That was the broad concept in operation, but the paratroopers thought that they should be acting like policemen in the role that they were familiar with in Northern Ireland. Your Lordships will remember that, for a time, berets were worn in an attempt to win hearts and minds in the southern part of Iraq. The situation was that they did not know what the rules of engagement were because the rules of engagement had not been conveyed to them.

My Lords, I had not intended to intervene in this debate, but one point is not being sufficiently stressed. I was an infantry officer in a line regiment in 1944. I fought from Normandy to Belgium. During the last action in which I took part and was wounded, we were informed that there were no Germans on the start point of the operation. In fact, there were Germans at that start point, greatly to our surprise. If I ask myself whether I would have had time to think about the rules of engagement in that situation, I believe that I would have been shot, and so would some of my men. The decisions have to be made instantly.

My Lords, I, too, support the noble Lord, Lord Campbell of Alloway. I cannot help wondering whether, if our soldiers had had to go into battle fearful of shooting, even in self-defence, pulling their punches all the time lest they be tried for murder, we should have won two world wars. How, in the speed and heat of battle, as the noble Lord, Lord Blaker, has said, can a soldier have time to be certain whether he is being threatened? It is his life or his enemy’s. It seems to me quite wrong to ask him to risk his life for his country with his hands tied behind his back, as it were. Under those circumstances, how can we be surprised if recruitment becomes rather sticky? I could not nowadays encourage my grandchildren to join the Armed Forces knowing what they could face when they come home.

My Lords, it would be difficult for me to overstate the importance of this subject, which is why we have had a number of briefings on rules of engagement during the debates on this Bill. I am very grateful to noble Lords who have attended those briefings and discussions that we have had in this House and at the Ministry of Defence. So I will speak at some length on this matter. As we have debated the Bill, there have been clear differences of opinion on a number of issues, but on the matter of rules of engagement there has been a higher level of misunderstanding across the House than on any other issue, which is why we in the Ministry of Defence have taken so much trouble to try to explain to noble Lords the practical purpose of rules of engagement. Perhaps I may expand on that a little.

Rules of engagement are key documents vital to the success of every operation. They are always classified to ensure that information about the way our forces will operate during a mission does not get into the public domain or into the hands of the enemy. Despite that, at a briefing held on 23 October for noble Lords, we took the unusual step of showing copies of actual rules of engagement for an operation. We did that to give noble Lords an opportunity to understand the way in which they are written, their complexity and their purpose. I think that those noble Lords who were able to attend the briefing found them illuminating and perhaps even surprising.

Rules of engagement give our commanders the political and military framework to achieve their mission, including limits on the use of force. They must be consistent with the law, of course, but their purpose and even their language is operational. Rules of engagement are and must be flexible. They must not and do not tie commanders’ hands unnecessarily. They leave important decisions to commanders on the ground and those commanders need and value this responsibility. Rules of engagement are more often than not specific to individual missions. No two profiles are the same. Crucially, they can be modified quickly to meet the needs of a changing threat or a changing mission. Rules of engagement must retain these key characteristics. If they do not, it would damage our operational effectiveness. To give rules of engagement statutory force in the way suggested here would be prejudicial to those characteristics on operations.

Servicemen know that the rules of engagement will help them to conduct operations in a way consistent with the law, but each serviceman still has a responsibility to carry out his role lawfully. To that end, personnel rely on a combination of their training and detailed guidance. I shall address the points made just a moment ago by the noble Lady, Lady Saltoun, because she is absolutely right: it is vital for the individual soldier to have confidence in the basis on which he can operate so that, under pressure, he is able to make clear, split-second decisions with confidence and clarity. But giving statutory force to the rules of engagement is not the way to achieve it.

I recognise that Amendment No. 32 in the name of the noble Lord, Lord Campbell of Alloway, seeks to safeguard the position of soldiers in combat. It would mean that a serviceman who opens fire during armed combat or peacekeeping is not guilty of unlawful killing unless he intended not to comply with an order or rule of engagement. This defence is to apply where the serviceman has acted mistakenly but in good faith. I understand the intention, but orders and rules of engagement simply do not cover every situation in which a serviceman might open fire. I have tried to explain why rules of engagement should not be drafted to tell each soldier exactly what the law requires of him in every possible situation. To take a simple example, rules of engagement do not say, “Do not kill a prisoner”; that is a matter for training. So I return to the principle: do noble Lords want rules of engagement to be legal documents or operational documents? They cannot be both.

Amendment No. 33 would give all rules of engagement the force of law. It is a pity that the noble Lord, Lord Kingsland, was not able to attend the briefing on 23 October because we went into some detail on this point. As we looked at the detail of rules of engagement, it was clear how it would be inappropriate to give them statutory force. As I have said, they have an operational purpose and they vary between operations. The amendment would mean that the law would change both between and during operations; that is, changing as swiftly as the operational situation changes. It would create a position of legal encirclement of our Armed Forces in a way which, I am sure, the noble Lord does not intend.

My Lords, the noble Lord says that rules of engagement change and so they do, but what is the status of the yellow card that a soldier carries, telling him what he can and cannot do? Can he shoot to kill, or may he fire only in self-defence? These are important issues of principle. It is no good saying to a soldier, “We are giving you a card, but by the way, operational circumstances may cause these rules to change tomorrow”.

My Lords, I am grateful to the noble Lord and I will address his point in a moment. Rules of engagement may form a document many pages long and of some complexity, detailing the nature of the operation. The card sets out guidance to a soldier operating in certain circumstances which I will come to shortly. However, we should not confuse the yellow card, as it was known during operations in Northern Ireland, or card alpha, as it is sometimes referred to, with rules of engagement. One is a sub-set of the other and we should not use the terms interchangeably.

Amendment No. 34 would refine and limit Amendment No. 32. As I understand it, it would limit the defence under Amendment No. 32 to where there were rules of engagement which were relevant to conduct alleged. But the problems I have outlined in relation to Amendment No. 32 also apply here and, as I have explained, these are operational and not legal documents in their drafting.

There are vital points of principle here. How are our operations to be directed if every change in the mission framework has statutory force? What effect is that going to have on the officers drafting these operational mission frameworks? How is our criminal law to work if we purport to change it between and even during operations, and how are our servicemen to be trained in what the law requires? Nevertheless, I recognise the sincere aim of noble Lords in addressing this matter. I recognise that underlying these amendments is a matter which is of the greatest importance to this House, and as we have debated the issue we have heard how in operations, servicemen who are tired, perhaps under fire and therefore under considerable pressure, may have to make split-second decisions about when to open fire. As we have just heard from the noble Lord, Lord Blaker, from his experience, it is vital that our servicemen have complete confidence in their position so that they can make instant decisions in response to a situation, given the difficult circumstances in which they often find themselves. Given that, I welcome the opportunity to give the following assurances. Whether a serviceman who opens fire and kills someone is guilty of murder depends on his view of the situation at the time and what he does on the basis of that view. This applies both in combat and at any other time. For example, if a soldier opens fire because he believes that he is faced with an enemy combatant, he has not committed murder even if he has made a mistake. It is the honestly held view of the service man or woman which counts at all times but inany case, a serviceman can use lethal force against anyone who he thinks is posing an imminent threat to human life. Again, what matters is the honest belief that he has in making the assessment. This is the law of self-defence and no rules of engagement can interfere with that inherent right, as is explicitly stated on every rules of engagement profile.

My Lords, I am very grateful to all noble Lords who have spoken. That is no mere trite acknowledgement; very valuable contributions have been made, including that of the noble Lord, Lord Drayson.

But it is very difficult to know quite how to approach what has been said. The fundamental conflict is that the noble and gallant Lords think there should be a new service law which recognises the realities of armed combat and which servicemen can trust—they have said so on Second Reading and on other occasions too—and the noble Lord, Lord Drayson, says, “No, we do not want that”. The second form of conflict, which could be resolved, is that the noble Lord, Lord Thomas of Gresford, says, “Yes, perhaps we should do something about it, but we are not going about it in the right way”—a perfectly legitimate comment. My noble and learned friend Lord Mayhew of Twysden thinks we should do something about it and, naturally, would like to think again about how we are going to do it. Unfortunately, how we are going to do it, I am afraid, could never be agreed between the noble Lord, Lord Kingsland, and myself because we have a fundamental disagreement about statutory force, an issue which we cannot resolve. In that respect, I am basically on the side of the noble Lord, Lord Drayson. I quite agree that there are many principles at stake, but what are we going to do about it? Frankly, I do not really know, but I think something must be done.

I should say to the noble Lord, Lord Thomas of Gresford, that in the case of the Scots Guardsmen—I happen to know about it—the soldiers’ orders that morning, a Scots Guardsman having been killed by a sniper the day before, were to stop and search. They had been trained with their rules of engagement to give the warning twice—“Stop or I’ll fire”. They had been trained to fire in a certain position, in a certain way, at a certain part of the body to kill or maim. That was their training. On the last occasion, General Sir Mike Jackson was sitting on the Army board. He cross-examined them in depth and was totally satisfied that they were telling him the truth. It is no use saying that if people comply with the rules of engagement, as the noble Lord, Lord Drayson, did, they are all right. The men did not have a defence—they were not all right. If they had had a defence, they could have avoided their conviction.

I will not take up more of your Lordships’ time. I frankly do not know what to do about this, but I feel, like I think the majority do, that something has to be done. I will try and find out how to do it and will be withdrawing the amendment.

My Lords, Amendments Nos. 33 and 34 are amendments to Amendment No. 32 in the name of my noble friend Lord Campbell of Alloway. Although I do not in any way resile from what I said in support of them, I do not propose to press them. I beg leave to withdraw the amendment.

Amendment No. 33, as an amendment to Amendment No. 32, by leave, withdrawn.

[Amendment No. 34, as an amendment to Amendment No. 32, not moved.]

My Lords, I beg leave to withdraw the amendment.

Amendment No. 32, by leave, withdrawn.

moved AmendmentNo. 35:

moved Amendment No. 36:

My Lords, I supported the noble Earl in Committee on what seemed a sensible amendment, seeking to harmonise detention powers to levels that have been perfectly satisfactory for the Army and Royal Air Force in the past. I look forward to hearing from the Minister how often the Royal Navy uses its powers between 60 and 90 days and why the circumstances are so different.

There is another question, which I trust that the Minister has examined, of the resource costs that may be affected by this. Of course, if one brings up a level of punishment to a higher one, it sucks up the cases of people who would normally get lower punishments. That may involve extra resources in detention provision. I hope that the Minister will be able to tell us that that has been taken into account.

My Lords, there has been much interest in the position of the commanding officer in the military criminal justice system, and I believe that we are all agreed on the importance of this. In recent years, some 95 per cent of cases have been dealt with at summary level. These sorts of cases, minor in terms of the criminal law, cover the low-level misconduct which, if not dealt with, can have a significantly corrosive effect on unit discipline and cohesion. We are convinced, and I am sure that the noble Earl will agree, of the merits of this approach.

A key element of our consideration has been to ensure that in the future commanding officers will be able to deal with an appropriate range of offences. We have looked carefully at the different approaches of each of the services. We have done so in anticipation of the requirement in years to come and therefore against a background of an increasingly expeditionary approach to operations in all our armed services. This has informed our approach to the offences that commanding officers should be able to deal with and the levels of punishment which they should have available.

Under the Bill, Army and Air Force commanding officers will be able to deal with a small increase in the number of offences than they can deal with now. These are offences, such as assault occasioning actual bodily harm, which in straightforward cases are regularly dealt with by their naval counterparts and which, if proved, may require greater punishments. We must not forget, of course, that at Clause 239 it is specifically provided for that an accused must be given credit if he admits an offence and has co-operated with service police, and this applies to punishments awarded in the new summary hearing system as well as at the court martial.

I am happy to send further detailed examples to the noble Earl of the Navy’s use of this power, but I can give some data on how often it is used. In 2005, Royal Navy commanding officers awarded periods of detention 79 times at summary trial. Of these, eight were for60 days or more, and seven of these followed a guilty plea. In a further 24 cases, commanding officers awarded punishments of more than 40 days’ detention. In 23 of these, credit for guilty pleas may have reduced the punishment from more than the 60 days which this amendment proposes. Removal of the power of 60 to 90 days’ detention for the Royal Navy would therefore generate an unacceptable increase in cases sent for trial by court martial. It would quite simply have an adverse impact on confidence in the system of discipline and on operational effectiveness.

Conversely, by gaining these powers, the Army and RAF might well see a small reduction in the number of cases that need to be dealt with by court martial if accused persons are happy to be dealt with by their commanding officer. There are important safeguards in place over the use of extended powers to deal with the additional offences and the use of sentences of detention longer than 28 days.

The powers of punishment available to commanding officers is an integral element of Bill proposals. The amendment would have an immediate adverse affect on the administration of discipline in the Royal Navy and would remove what would be an important improvement for the Army and Air Force. The proposals in the Bill have been carefully developed to reflect the current and anticipated future requirements for commanding officers and safeguards appropriate for service personnel. I hope that in light of this explanation the noble Earl will withdraw his amendment.

My Lords, I am still a bit disappointed. The Minister mentioned actual bodily harm. It is sensible to include that as an offence that could be dealt with summarily, for the simple reason that actual bodily harm need not be a very serious assault. It is a matter of some damage being done to the victim.

The Minister said that the Bill was being carefully considered. I suspect it is rather more that the Royal Navy won this battle. I am grateful for the Minister’s response. I think he is wrong, but I will not return to my amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 37 not moved.]

moved Amendment No. 38:

My Lords, I welcome the fact that the noble Earl, Lord Attlee, has moved his amendment on administrative tribunals, which we did not have time to consider in Committee. The use of administrative action by the services in order often to bypass the need for legal action was commonplace in the past and, from what the noble Earl says, that has not changed over the years since I was in the services. Whereas civilians have recourse to industrial tribunals when their employer deals with them through comparable action, the only action open to the serviceman at the moment is a redress of grievance, which we know is ponderous and not transparent in showing justice being done.

I recognise that we may have a new situation with the ombudsman arriving, which may solve some of the problems. The one criticism I had of the noble Earl’s amendment was that at Amendment No. 39 the rights of appeal seemed to be rather narrowly drawn. I can think of cases of administrative action, varying from merely placing a letter on the personal file through to a posting on short notice, that might in other jobs amount to constructive dismissal because it has affected the person’s career.

I support the principle here. If we can ensure the needs are covered by the commissioner, we may be able to meet the needs that there are, but we need to be aware that administrative action in the services is an important part of the set of different disciplinary measures available to commanding officers.

My Lords, Amendments Nos. 38 to 48 seek to create a right of appeal to a form of tribunal against certain administrative actions, mainly any decision to discharge someone or to require him to resign. The tribunal would be able to overturn the decision or decide on other administrative action.

The amendments propose appeals to the tribunal on three counts. In the case of discharge and the resignation of a commission, service personnel already have the right to respond before the discharge or resignation is made final, and thereafter the right to redress should they feel there are grounds for complaint. Equally, where an individual is required to pay for the loss or damage of service equipment, that requirement may be as a result of summary proceedings against which he has the right of appeal or, if not, representations through the chain of command, and, ultimately, service complaints are available.

Given the limited grounds proposed for the tribunal, the redress system would still be required for other cases. We have confidence in the streamlined redress system that the Bill provides and do not think that it would be right to introduce a totally different system for certain cases. The tribunal would represent an unnecessary and bureaucratic change that would serve only to delay and complicate matters.

I note the points made by the noble Lord relating to the services ombudsman. Given what I have said, I request the noble Earl to withdraw the amendment.

My Lords, I am extremely grateful to the noble Lord, Lord Garden, for his comments on the amendment. I tabled it as I have witnessed the problems that it seeks to address. I am aware of situations where servicemen have been required to resign or have been discharged and where the redress of grievance procedure is not fit for purpose. I hope that the Minister will inform me in writing—he is extremely reliable in that regard—although the Bill may by then have completed its passage, how many redress of grievance claims have been made in respect of discharge or requirement to resign a commission, how long each has continued and how many are outstanding. Frankly, I am not happy about the increasing use of administrative action to get round the problems that we have created by making it harder to exercise summary jurisdiction. However, that is not something that we want to put in the Bill. We have a lot still to do. For the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39 to 48 not moved.]

Clause 155 [Constitution of the Court Martial]:

moved Amendment No. 49:

My Lords, other matters arise in this grouping. The noble Lord, Lord Drayson, has followed some of the suggestions made in Committee, for which I am grateful. However, I say in traditional Liberal Democrat tones that he does not go far enough.

The points of principle to which I refer in Amendments Nos. 50 and 51 are important. I imagine that to those who have been in the services and have sat on courts martial it must seem very odd that in America a court martial can consist of a cross-section of the Armed Forces, as opposed to officers and warrant officers. However, as I said previously, if one looks at the matter from the point of view of the defendant who is seeking a fair trial, there is a basic principle involved. The basic principle as set out in Magna Carta is that he should be tried by his peers. The private soldier who appears before officers cannot expect them to have the same understanding of the circumstances in which he committed offences as a jury drawn from a cross-section of the community, particularly if he is charged with a civil offence.

I pose again the point I made in Committee. First, would it not seem odd for a policeman to be charged or tried by senior police officers or for firemen to be tried by senior fire officers, or for someone working in the City to be tried by senior accountants or financiers from the City? Throughout the community it can always be said, “We are part of a special group. We have special rules that only we understand. Therefore, it is only right that we should be the people who try the underling who is brought before us because of his misdemeanours. We are part of such an arcane mini-society that only we can understand the matter”. That is not the principle on which the criminal law generally acts in this country. Whatever a person’s position, when he is brought before the ordinary criminal courts of this country he is tried by a cross-section of the community with wide experience of all matters and he can expect them to have a full understanding of his background and position.

Secondly, Amendment No. 51 proposes that the court martial should consist of a cross-services section of people. I understand that there is a considerable desire in the services for them to remain separate. They have different traditions in many regards, which we respect. But surely the armed services should be looked at as a whole in the context of a Bill which brings them together for the purposes of courts martial and criminal proceedings. A Director of Service Prosecutions covers all branches of the services. Amendment No. 58, in the name of the noble Lord, Lord Astor, suggests that,

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

That seems inappropriate. Surely it is right that experience across the services should be shared and that there should not develop one level of understanding or of justice in one service and another level in another.

I shall not pursue Amendment No. 52 at all. Amendment No. 55 would simply require the qualifications for membership of the court martial to be limited to a serving member of the Armed Forces without reference to rank or position. In Committee I pointed out that that is the position in the United States, and has been for many years. I see no reason why we should not move to a more egalitarian system in courts martial in this country.

My final point, on Amendment No. 57, is very different. It is on majority verdicts. I have already spoken about that today, and I am not going to repeat what I said. It is the most distinctive part of courts martial that the decision is by a simple majority. I know the verdict is decided by simple majority in Scotland, but there are 15 jurors there. There are simple majorities in some of the continental systems, but we have always thought our system of trial by12 jurors to be superior to systems where only a few people sit.

Magistrates’ courts in this country deal with 95 per cent of criminal cases, but they have very limited powers and deal with minor offences. If courts martial confined themselves to disciplinary matters, which take up most of the first part of the Bill, and did not get involved in civil offences, I would have a different attitude. However, where murder, manslaughter, rape and so on can be charged, and where prosecutions can proceed before courts martial, it is only right that majorities, as set out in Amendment No. 57, should be required before guilty findings are made. I have said as much as I need to without repeating what I said in Committee.

My Lords, I will speak to Amendment No. 58. We have tabled the amendment again as it concerns an issue that men in the Armed Forces feel strongly about, not least noble and gallant Lords in this House, as well as the Chief of the General Staff and the First Sea Lord, as they made plain in their evidence to the Select Committee in another place. It is very much our view that members of a court martial panel should be drawn from the defendant’s own service. Despite what the noble Lord, Lord Thomas of Gresford, said, that view is shared by many of the service men and women in all the services to whom we have spoken.

I am very grateful to the Minister for his helpful response to the amendment, both in Committee and outside the House, and I have taken his comments on board. I accept that in his position he has to allow for the rare situations where there is a case for mixed panels at court martial. I would very much like to see a presumption for a single service panel, and I would be grateful if the Minister could give an assurance that there will be such a presumption. I also support Amendment No. 59, proposed by my noble friend Lord Attlee.

My Lords, I am grateful for the Minister’s amendments in this group, which are welcome. I do not support the amendments proposed by the noble Lord, Lord Thomas of Gresford. If he is right in his general approach, perhaps we should dispense with courts martial entirely and remand all the cases to Crown Courts in the United Kingdom—just bin courts martial altogether. I do not think that that is the view of the House. I do not know whether the noble Lord has noticed, but not all soldiers are particularly bright, and if you had a small panel, they would struggle with a complex fraud case, as does a jury now.

My Lords, does that go for the other services?

My Lords, generally speaking, the other services, on average, have more intelligent servicemen. That is a fact of life. Royal Air Force equipment is rather more delicate than a Challenger tank, and the Royal Navy’s equipment is really complicated.

Also, the noble Lord’s position assumes that the officers on a court martial feel it their duty to convict. I have not sat on a contested court martial, but I know that the ethos among officers is definitely not to want to convict, because then you are going to have to sentence. Officers in a court martial want to be absolutely sure, if they are to convict, that the person is guilty beyond all reasonable doubt. I strongly support my noble friend Lord Astor of Hever in his Amendment No. 58. I would be extremely unhappy if I found myself being court martialled by a panel other than one made up of Army officers who understood the context of the situation in which I had found myself.

I have an amendment in this group, and I declare an interest because I have a cousin in legal practice in Scotland who undertakes a considerable number of service cases. My understanding is that the most northerly court martial centre will be in Catterick and there will be none in Scotland. However, there are a large number of service bases in Scotland, such as Kinloss, Lossiemouth, Leuchars, Arbroath, Rosyth, Helensburgh and Edinburgh. Surely, a tri-service court martial centre in Scotland would be viable. There are considerable costs in moving all the court players all the way to Catterick from Scotland.

There is a further problem with the summary appeal court, which sits at a court martial centre. As I said, the most northerly court martial centre is Catterick, and a serviceman might be deterred from appealing a summary jurisdiction, even though he knows that he has been unfairly dealt with—I am afraid to say that I have been told that even today there are one or two commanding officers of questionable parentage. The reason for this reluctance is the need to go all the way to Catterick—not just for himself, to appeal, but for all the other players. That does not compare well with the civilian situation, where you can appeal a magistrates’ court decision in the local Crown Court. I hope that the Minister can assure me that one of the benefits of the Bill will be that we can have a tri-service court martial centre in Scotland.

My Lords, I will make one or two comments about some amendments in the group. First, the noble Lord, Lord Thomas, contends that there is a need to have privates or other ranks on the court martial panel. I am unable to agree with that. The noble Lord, Lord Thomas, said that the court members should be experienced. Certainly he will find that the private, or even the corporal, does not have sufficient experience. Experience is vested in the warrant officer, or indeed in the officer, given that, certainly in the Royal Navy, a third of officers have come up through the ranks. It can be perfectly well found among officers and warrant officers sitting on the court. By the way, the services are not egalitarian; let us try to remember that.

On the amendment proposed by the noble Earl, Lord Attlee, about Scotland, I mentioned in Committee, and before, the importance of making sure that our court martial locations are distributed throughout the country. In addition to the points that the noble Earl made, I will add two more. First, if you are having a court martial and you are coming down from Scotland, you would lose a large chunk of your unit, who may be witnesses or friends. That can be disruptive to the unit’s activities. Secondly, the reason for having a court martial in a local area is pour encourager les autres; it allows people in the unit to see the person being court martialled in the area where he has been operating, appointed or drafted. I would like some reassurance from the Minister that we will not just see two or three court martial centres, as currently outlined.

Finally, I support the noble Lord, Lord Astor of Hever, in his plea that the default position should be that a single person being court martialled should have on the court martial largely those from his own service. I do not agree that you will see a trial involving, for example, a flying incident being properly judged by a court martial with no aviators on it, or, vice versa, a trial involving a grounding incident in the Navy being properly tried by those in other services. If the amendment is not successful, I hope that the Minister can reassure us that there will be some sort of provision to make sure that, by and large, the court martial trying a single service defendant will be populated by people from the same service.

My Lords, I will now deal with Amendments Nos. 50, 51 and 58, which relate to how membership of the court martial is selected.

Although some of these matters are dealt with in the service discipline Acts, we believe they are more appropriate for rules. But those rules will be subject to the affirmative resolution procedure. I can confirm that we intend that the court martial will comprise a majority of officers with provision in rules for there to be one or two warrant officers, depending on the size of the court.

Amendments Nos. 51 and 58 take completely opposite viewpoints on whether there should be mixed-service panels. We strongly believe—this is the view of all three services—that a court martial should generally be made up from individuals of the defendant’s own service, and that should be the presumption. There will be exceptions to that—for example, when there are co-defendants from different services. Rules will provide the criteria upon which the court administration officer should select a mixed panel.

It is important for the service context to be given due weight in relation to any offence, whether or not it occurs during operations. Also, most personnel usually serve in their own single service environments and would expect to face a tribunal comprised of members of their own service. We believe that members of the Armed Forces broadly have confidence in the court martial system, and changes that dilute the service character of the court martial can undermine the confidence of service personnel in it. Subject to that, selection should be random. Obviously, none of the members can come from the same chain of command as the defendant, nor are they likely to have any involvement in the case, and that is stated in the Bill. It would not make sense to select from that group where no person is or should be eligible. The Bill provides for a joint court administration officer, who will ensure consistency in the selection procedures.

Amendment No. 55 would, in effect, prevent the appointment of civilian lay members at the court martial of a civilian. That is clearly inappropriate. We shall consider the composition of the court martial on the trial of a civilian and can deal with that in rules. The recent judgment in the Martin case is relevant here. We will certainly want to consider whether a majority or even the whole lay membership of the court should be civilian in those rare cases where a civilian is to be tried for an offence in the service system. Those rules are already subject to affirmative resolution procedure, which will ensure that your Lordships will have an opportunity to scrutinise our proposals in due course. I would therefore urge the noble Lord, Lord Thomas of Gresford, not to press his amendment.

Amendment No. 57 makes various proposals in relation to verdicts. I can agree on one: that the judge advocate should have no vote on finding; but that is already provided for in Clause 160(2). I have recently written to the noble Lord on the remaining issues, so I will briefly summarise our position. The imposition of a system of unanimous verdicts has an attraction to those familiar with the English jury system. However, a court martial is not the same as a jury trial. The vast majority of cases that the court martial will hear are equivalent to those that are dealt with in the magistrates’ courts in England and Wales, where a simple majority suffices—namely, a vote of two to one. This will be mirrored in the court martial for the majority of its cases.

There is nothing inherently unfair in a system where simple majority verdicts are allowed. As well as in our own magistrates’ courts, they are used in jury trials in Scotland, in the Court of Appeal and in many other jurisdictions across the world, including in the House of Lords and the European Court of Human Rights. Simple majority systems are different, but not inferior.

We accept that the members of the court martial should seek unanimity on the verdict if possible. Judge advocates already give a direction to the lay members to seek to do that. By attempting to impose the allowed split of a majority verdict, the amendment would introduce the risk of a hung court and a retrial. It would mean that an accused who, in the court martial system may be acquitted on a three to two decision, for example, would instead have to be retried. That would be most unattractive to the Armed Forces.

I cannot support an amendment that would require the division on a majority verdict to be disclosed to the court. That does not occur in the magistrates’ court, as the decision of the lay members of the Bench is the decision of the court. That is the effect that we seek to replicate for the court martial. The only occasions when splits are announced to a court are when judges are giving their verdicts—for example, in the House of Lords. Lay members of a court martial are not judges and I see no good reason to depart from the model of the magistrates’ court in that respect.

Finally, on Amendment No. 59, I welcome the opportunity to address the issue raised by the noble Earl, Lord Attlee, and spoken to by the noble and gallant Lord, Lord Boyce, in relation to court centres. As I said at Second Reading, the military criminal justice system must operate where there are significant concentrations of service personnel. It is therefore quite right for the noble Earl to raise the issue of Scotland, where in future there will be more personnel from all three services, from Faslane to Lossiemouth. As I said in June in reply to the noble and gallant Lord, I believe that there is a strong service case for Scotland, and for the south-west.

I do not believe that the court martial in the UK should be confined to the three new court centres. I am sure that in complex cases where their excellent facilities will be essential, all three services will use them. That is common sense. It is also common sense that where there is no such specialist requirement, the key driver must be the operational effectiveness of the services and not of court buildings. I am sure those who provide services to the military criminal justice system will recognise that.

I hope that the noble Earl will understand why, having supported his reasoning, I am unable to support his amendment. This is not a matter on which we should legislate, but I hope that I have given comfort to him as to our direction in this matter. I hope that the noble Lord will be encouraged by my response and will not press his amendment.

On Question, amendment agreed to.

[Amendments Nos. 50 and 51 not moved.]

My Lords, Amendments Nos. 52 and 53 have been entered wrongly on the Marshalled List, so I shall first call Amendment No. 53.

moved Amendment No. 53:

moved Amendment No. 54:

moved Amendment No. 56:

had given notice of his intention to move Amendment No. 57:

moved Amendment No. 61:

My Lords, when the noble Lord refers to an independent member, does he mean someone with no military experience whatever or someone who has military experience but is no longer serving in the regular Armed Forces? It might be desirable for someone who is no longer serving and is out of the system to take an independent view, but I am not sure about the presence of a complete lay person.

My Lords, I mean an independent member in the same sense as in the clause. Perhaps an independent member should always be present rather than only when the Secretary of States decides that one should be there.

My Lords, Amendments Nos. 61 to 63 would require an independent member to be present on all service complaint panels, and Amendments Nos. 64 and 65 would allow the Secretary of State to require more than one independent member in prescribed cases.

Our starting point is that at the heart of the relationship between service personnel and the chain of command is the chain of command’s responsibility to investigate wrongs and remedy them. But, in some cases, the balance moves in favour of an independent element in that process.

We have already identified the key areas where an independent element is needed. They are where a complainant alleges unlawful discrimination or harassment, bullying—which can amount to harassment in some instances—or bias or other improper behaviour. But we do not intend to limit the cases to those instances. There will certainly be others in which expertise or independence calls for an independent element. We also propose to ensure independent oversight of the effective working of the system by the appointment of a statutory Service Complaints Commissioner, who will report directly to the Secretary of State.

We considered very carefully the value that an independent member would bring to the decision-making process and concluded that, in addition to the key requirement to inject a fresh but informed perspective on a case, we would also look at the knowledge and experience in a particular field. In other cases, independence is not a key requirement, and in those cases there is no reason not to use panel members from the wider chain of command or civil servants—especially ones with knowledge and experience relevant to the complaint.

We therefore believe that our proposals for an independent member on panels in the consideration of certain cases will 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 by the chain of command with a clear understanding of the service context.

There should not be a requirement for more than one independent member to fulfil this function, given that one member will have been appointed to a particular panel on the basis of his independent and fresh perspective and also, perhaps, experience and expertise applicable to the complaint in question. It is important that the services do, and are seen to, consider and remedy any wrongs, but there should also be an independent element within the system and an independent review of the performance.

On the strength of my response to the proposals, I hope that the noble Lord will feel able to withdraw the amendment.

My Lords, I do not believe that the Minister said anything new this evening compared with his previous response on this issue, but I shall study what he said carefully in Hansard. This is an important issue as regards how we give the independent panellist some status, but, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 62 to 65 not moved.]

moved Amendment No. 66:

My Lords, we oppose the amendments in this group, which are an unnecessary addition, given the presence of Clause 366. We are concerned that the amendment would give even more powers to the commissioner and would therefore undermine the chain of command even further than is done by Clause 366. We have heard many times from noble and gallant Lords and other noble Lords in this House that preserving the chain of command is the essential ingredient for the discipline of the Armed Forces, and we cannot support an amendment that would further weaken that.

My Lords, we now return to what I previously called a key part of the Bill, on which I have written to noble Lords. In speaking to Amendment No. 66, I shall also cover Amendments Nos. 67 and 72.

I remain absolutely convinced that the appointment of a Service Complaints Commissioner under the Government’s amendments moved in Committee is right for the way that the Armed Forces operate. It meets the overall objectives underpinning Mr Blake’s recommendation in the Deepcut review, which sought to promote the effective operation of existing military proceedings, rather than to replace them and to provide independent assurance that the procedures are working as effectively as they can. It will provide the best solution for service personnel. They need to have confidence in a fair and efficient system. I believe that this is best achieved by the changes we are making in the Bill. They streamline the existing system and introduce independence where that is necessary. But they also retain a connection between redress and the services. I think it essential to retain the important role of the services in looking after the welfare and discipline of those under command.

I would like to reiterate some of the main points of our proposed system. First, the Service Complaints Commissioner will have an important role in relation to allegations of bullying, harassment and other forms of misconduct. The commissioner will be able to refer such complaints to the chain of command, which will then have to check with the alleged victim whether he or she wants to make a complaint. These allegations can be sent to the commissioner by the alleged victim or any other member of the public.So the Bill will provide an alternative to going straight to the chain of command. We will lay down in subordinate legislation, which will be subject to affirmative resolution, how the commissioner is to be kept informed about cases he has referred to the chain of command. This will also ensure that whoever contacted the commissioner about the case can also be kept informed of progress.

There will be independent oversight by the commissioner of the performance of the system as a whole, with direct reports to Parliament and direct access to Ministers. Further, the independent element in the consideration of complaints related to bullying, harassment and other forms of misconduct will be provided by the presence of an independent member on service complaint panels. We have already talked about complaint panels and I now want to concentrate on the commissioner.

As I have said previously, and I again stress here, although some of the proposals in AmendmentsNos. 66 and 72 coincide with those of the Government, Amendment No. 72 goes beyond what is proposed by the Government. The noble Lord’s amendments would involve the creation of a parallel system of complaint, controlled and directed by a commissioner. The relationship between its decisions and those of the internal redress system is not specified, but I suspect that having two systems would inevitably be complicated. The amendment leaves it to the Secretary of State to work out the details of this parallel or alternative system.

However, these amendments would undermine the responsibility of the services for dealing with complaints and the parallel system they require would mean that some complaints would be dealt with under the internal system and some under the commissioner’s. This could result, for example, in a lack of consistency in dealing with complaints; in the application of time limits; and ultimately, a significant and worrying decline in the ability of the services effectively to look after their own people.

However, I share the view of the noble Lord, Lord Garden, expressed in the House on 12 October, that it will be crucial to ensure that the post of Service Complaints Commissioner is filled by an appropriate person. As such, we intend that this individual will be someone of the stature and experience appropriate to a post of this importance, as the noble Lord has said. We will consult the Children’s Commissioner in line with the recommendation of the House of Commons Defence Committee.

We envisage that appointment will take place through public advertisement and a fair and open competition, and that the normal principles of the public appointments process will apply. We will consult further with any other persons whom we think can usefully contribute. We intend that the selection panel will include an external, independent element, and we are exploring the possibilities, including the opportunity for the selection panel to be chaired by a senior Civil Service commissioner. I remain convinced that the appointment should be made by the Secretary of State, as is the norm in comparable cases, and we see no reason to be different with this appointment.

I also agree that the commissioner should be adequately resourced in order to give effect to the role. This will need to be kept under review in relation to the commissioner’s workload as the role develops. As an individual officeholder, the commissioner will have the legal powers necessary to appoint staff. The commissioner’s annual report will provide the commissioner with the opportunity to raise any concerns about resources and the ability adequately and effectively to carry out the role on that basis. I most firmly believe that the existing system will work fairly and efficiently, and that it will maintain the balance between the service role and the appropriate degree of independence in responding to complaints. I therefore ask the noble Lord to withdraw the amendment.

My Lords, I am grateful to the Minister for his response. I now find myself somewhat confused about what this new post will do, which is part of the problem. There seems to be a reluctance to define the post in any great detail. The Minister has raised the issue of the independent member of the service complaints panel, yet when we discussed that a moment ago, that was something that would be invoked only when the Secretary of State saw fit. On these Benches there is a real concern that we may find that all the recommendations of Nicholas Blake after Deepcut fall between two systems, neither of which has been fully implemented.

I turn to the suggestion of the noble Lord, Lord Astor of Hever, that Clause 366 says everything necessary—I think he was indicating that. In that case, we differ because it is a very sparse clause and just says that the Service Complaints Commissioner exists.

I take seriously the Minister’s concerns about particular aspects of the schedule that we are offering in Amendment No. 72. I shall reconsider that, but we have not finished the debate on whether we have a clear view through the Bill on what the Service Complaints Commissioner will be able to do and whether that will meet the requirements of Blake. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 339 [Reports by Commissioner on system for dealing with service complaints etc]:

[Amendment No. 67 not moved.]

moved Amendment No. 68:

My Lords, I am not clear whether we are to debate this amendment or not.

My Lords, under pressure from various sides, in view of the time, I was attempting—

My Lords, I can help the House. I am happy to debate this matter at Third Reading.

My Lords, I am most grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 69:

My Lords, my name is on the amendment, so it will come as no surprise to your Lordships that I support it. It comes in a slightly different form from its previous incarnations, but the purpose is very much the same: to ensure that there is some rule, regulation or standardised procedure whereby the use of UK aerodromes and airspace facilities is prevented, in any shape or form, from being involved in the unlawful practice of rendition.

My Lords, I also lend our support to the amendment of the noble Lord, Lord Garden. As he indicated, we had a long debate about this matter in Committee, and he has reformulated the amendment to accurately reflect the international law on torture. It seems, admirably, to summarise the current legal situation, and I congratulate him on bringing it forward.

My Lords, I support the thrust of these amendments. For myself, I would be happier if the provision started, “A person subject to military law commits an offence if”, but I am grateful for the advice of my noble friend Lord Kingsland that it is a good amendment.

Members of our Armed Forces should not have anything to do with extraordinary rendition. As the noble Baroness, Lady D’Souza, said, they should have nothing to do with it “in any shape or form”.

My Lords, the amendment once again raises issues such as extraordinary rendition, as well as international obligations. In the context of the Bill and the debate in Committee, however, the concern relates particularly to the responsibilities of commanding officers.

I do not intend to add to what my noble friend Lord Triesman said on extraordinary rendition in general in the debate on 18 July. Nor do I wish to add to what was said more recently, on 18 October, by my noble friend Lady Scotland. She made it clear, in the context of the Police and Criminal Justice Bill, that the Government are more than satisfied that the police already have sufficient legal powers. They are able to react to any intelligence suggesting that any offence under either UK domestic law or our international obligations is being committed when foreign aircraft transit through our jurisdiction, including our military airfields.

I am afraid that Amendment No. 69 does not add anything to the law as it stands. As I have said, there are already sufficient legal powers to react to any intelligence that an offence is being committed. Any regulations that might be made under the proposed clause would not add to those powers. Propose subsection (2) of the amendment, again, adds nothing. Of course commanding officers, like anyone else, must not become parties to crime. We do not consider that there are any other international obligations which this clause could be referring to.

I hope that what I have said adds to the debate and reassures noble Lords that this amendment is neither necessary nor desirable. There is already sufficient provision in domestic law to cover their concerns. I hope that, having raised the matter once more, the noble Lord feels able to withdraw the amendment.

My Lords, I am grateful to the Minister. We at last seem to be getting towards a consensus on a way forward on all Benches apart from those of the Government. The noble Earl, Lord Attlee, gave me a useful thought on how we might modify the amendment a little to bring it back when, I think, we will find the House will support it. When I have had a chance to look at that, I shall come back at Third Reading. For now, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved AmendmentNo. 70:

My Lords, I am grateful for the noble Lord’s flattery in tabling an amendment I tabled in Committee.

My Lords, I also support this amendment, which, as my noble friend Lord Attlee said, he moved in Committee. It is absolutely right that records should be kept of any servicemen evacuated from operations as a result of injury or serious illness. The perceived lack of information in this area, whether justified or not, is not helpful either to the families of service men or women, or to public opinion. The argument that records are being collected anyway is not, in my view, strong enough to keep this provision out of the Bill.

My Lords, as I said in Committee, I recognise absolutely the deep importance of properly recording casualty figures. I also said that records are made and kept of all those who are transported out of theatre for medical reasons. I have since provided further information to the noble Earl on the defence medical information capability programme.

For the wider benefit of noble Lords today, I inform them that this programme will contain reporting tools enabling the Defence Medical Services to compile and analyse information about the progress of service personnel receiving treatment following injury or illness on operations. It will also identify the types of injury and illness experienced during an operation. This new system is due to enter service progressively from next year and it will be available to deploy on operations from 2008. Given that we already collect and communicate the data on casualty figures and are doing so much more to improve casualty reporting, I ask the noble Earl to withdraw his amendment.

My Lords, it is, in fact, in my name, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 364 [Director of Service Prosecutions]:

moved Amendment No. 71:

My Lords, I support the amendment moved by my noble and gallant friend Lord Inge. It is important that the confidence of our Armed Forces is sustained in the Director of Service Prosecutions, the best way being by him having appropriate military experience. If there is an exceptional situation where he does not have such experience, he should be given the opportunity to gain some before he takes uphis post.

My Lords, my name is also on this amendment. The background of the Director of Service Prosecutions remains a critical issue to those in the services. I would agree with the noble and gallant Lord, Lord Inge, and say how helpful the Minister has been. I hope that he will consider the suggestion in the noble and gallant Lord’s amendment. I support the idea of an induction course in those cases where a director with uniformed experience cannot be found.

My Lords, I recognise the strength of feeling on this important matter. As noble Lords and noble and gallant Lords have said, I have looked at it again following our debate in Committee to see whether it would be helpful and appropriate to amend the Bill. I have especially taken on board the views of both current and former service chiefs, who have considered this matter very carefully indeed—rightly so. They have assured me that they are content with the Bill as it stands and with the proposals that I outlined to your Lordships for the selection process. They welcomed the consultation that there will be about the job specification, and the terms and conditions for the post, and the involvement of a senior serving officer in the selection process. I think we agreed on two things: that the director should have appropriate service experience; and that the recruitment process should be sufficiently robust to ensure that the person appointed will be an outstanding individual who will enjoy the confidence of the services while being entirely independent from them.

By “service experience”, I mean an understanding of service life and operations in each of the services and of the needs and the working of a service system of justice and discipline. It is possible that there will be an outstanding candidate for this important post who does not have previous uniformed experience or, indeed, whose service might have been some years before. In both cases it would be particularly important for them to undertake an appropriate induction period before taking up the appointment. Similarly, where the director to be appointed is from one of the services, he or she might also need a period to develop a deeper understanding of how the other two services operate. We recognise that such an induction process needs to be intensive and of a sufficient duration in order for the individual to develop a detailed understanding of life across all three services. As I have already said, it is essential that the director has a knowledge of how each of the services operates and of the needs and the working of the service system of justice and discipline. On the basis of these reassurances, I hope that the noble and gallant Lord feels able to withdraw his amendment.

My Lords, I thank the Minister for that encouraging reply, particularly what he said about an induction course. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

Clause 373 [Orders, regulations and rules]:

moved Amendments Nos. 73 and 74: