rose to move, That the draft order laid before the House on 10 May be approved.

The noble Lord said: My Lords, first, I am sure that the whole House will wish to join me in offering sincere condolences to the family and friends of the soldier who was killed last night in Iraq.

As is customary, I shall say a few words in support of each of the three orders before us today and begin with the continuation order. Although it is a small item of business for Parliament to consider, the order is vital because it ensures that the Armed Forces Act 2006 and the three service discipline Acts will remain in force for a further 12 months. As noble Lords will know, Parliament is asked most years to consider an order of this kind as part of the process by which service discipline Acts are kept in force, but the order we are considering today is breaking new ground because it provides for the continuation in force for another year of the three service discipline Acts—the Army Act 1955, Air Force Act 1955 and Naval Discipline Act 1957—and the Armed Forces Act 2006.

When the 2006 Act was considered by Parliament, there was an expectation that it would replace the three service discipline Acts, and that remains our intention. However, we need to continue the service discipline Acts in force until the 2006 Act is fully in operation. That is why they are included in the order. In years gone by, these debates have provided an opportunity to give the House a progress report on the forthcoming legislation. This year's debate is different because we now have an Act in place. That, however, is not the end of the story. Having received Royal Assent to the Armed Forces Act last November, our focus has shifted to the significant amount of work that will be needed to deliver a single system of service law for our Armed Forces. Foremost among that work is the huge amount of secondary legislation that will put flesh on the bones of the Act. Her Majesty’s Government have been hard at work producing this since the Act received Royal Assent last year.

Altogether we expect to produce about 65 statutory instruments. Many of those will contribute to the single system of service discipline that we intend to have in place by 1 January 2009. Since it is not possible to introduce some parts of this disciplinary system in advance of the other parts, we plan to bring them all in together. Our target date for this is January 2009. At that point, the Armed Forces will move across from the three separate systems in place at present to the single one that will replace them.

The change will have consequences for police investigations, summary dealings, prosecutions and court martial trials to name but a few. So, as well as statutory instruments there will need to be manuals, guidance instructions and training for a wide range of personnel and organisations to ensure that the change happens efficiently and with the minimum of fuss for our Armed Forces. We expect to lay almost all of the 65 or so statutory instruments during 2008. We recognise that it would not help the House if they were all laid at the same time, so we will look to see how they can sensibly be grouped together and laid in batches, perhaps according to the issues that they cover.

Towards the end of this year officials therefore propose to seek views from staff working for the Merits Committee and the Joint Committee on Statutory Instruments. It goes without saying that officials would be happy to talk to other committee officials and staff who might be involved in this work. We hope that, by doing that, we will be able to present the information in a way that assists parliamentary scrutiny and avoids the system being overloaded.

At present, we plan to make some statutory instruments earlier than the majority. These are ones that stand alone and are therefore capable of being dealt with separately from those which go together to underpin the single disciplinary system. They will make provisions in two particular areas. The first deals with service complaints, which might be better known by some noble Lords as redress of individual grievance. The second is in relation to service inquiries, which will replace the existing boards of inquiry.

I should now like to speak to the two other orders before us today: the Armed Forces (Service Police Amendments) Order 2007 and the Armed Forces (Alignment of Service Discipline Acts) Order 2007. The first provides for consequential amendments to nine statutory instruments following the change of name from Royal Navy Regulating Branch to Royal Navy Police. The change is to provide clarity so that the role of the organisation is understood by all those with whom it does business. Various provisions in primary legislation have already been amended to reflect the name change. The affected primary legislation is set out in Schedule 16 to the 2006 Act, the relevant paragraphs of which were brought into force on 10 May by the first commencement order under the Act.

The second order removes the current restriction in the three service discipline Acts on the number of civilians who may sit as lay members of courts martial when the defendants are civilians. Removal of this restriction will allow new courts martial rules made under the service discipline Acts, which we expect to lay before Parliament towards the end of this year, to provide that the military court service may select all-civilian panels when a civilian defendant is tried by court martial.

The need to make this change arose from the judgment in the 2006 European Court case of Martin v UK, when the court said that it would be appropriate to try a civilian by a military tribunal only in “very exceptional circumstances”. Since the court did not provide examples of what those exceptional circumstances might be, it is up to the Government to consider when it might be appropriate to have a mix of military and civilian personnel on a court martial panel. We are clear that, if a civilian faces court martial trial, the default position is that the lay members will all be civilians. However, there are circumstances in which it might be appropriate for a civilian defendant to be tried by a military panel. I give one example. If a soldier is accused of committing an offence while he is in the Army but subsequently leaves the service and is brought back for a court martial trial, should he be tried by a military panel or a civilian panel, or by a mix of military and civilian personnel?

The Government have very carefully considered the implications of the judgment, and we believe that the ability to have all-civilian panels when civilians are being tried provides the remedy. The fact that the judge advocates who provide legal direction at courts martial are all civilian judges provides a further safeguard. In a wider context, making these changes demonstrates once again the Government’s determination to ensure that the military justice system and the legislation that underpins it are compliant with the European convention.

I should like to make a further observation about the orders that we are considering. Her Majesty’s Government have given an undertaking that Ministers moving instruments subject to the affirmative procedure will tell the House whether they are satisfied that the legislation is compatible with the rights provided in the European Convention on Human Rights. The first order is a brief document that raises convention issues only in that it maintains in force three Acts which, as they have been amended over the years, reflect convention rights. As my right honourable friend the Secretary of State declared last year, we consider that the provisions of the Armed Forces Act 2006 are compatible with convention rights. Of the remaining two orders, the second has no bearing on convention rights, and the third will help to preserve those rights—in particular the right under Article 6 to a fair trial—as they extend to civilians subject to the legislation.

In conclusion, I hope that noble Lords have found it helpful to have an update on progress towards full implementation of the legislation. I look forward to future discussions in the House as we bring forward the important secondary legislation that will be needed to establish the single system of service law. I beg to move.

Moved, That the draft order laid before the House on 10 May be approved. 18th Report from the Statutory Instruments Committee.—(Lord Drayson.)

My Lords, I start by sending our condolences to the family and friends of the soldier killed last night in Iraq.

I thank the Minister for explaining the three orders. We on these Benches support the Motions for their approval.

The draft Armed Forces (Service Police Amendments) Order 2007 has been introduced following a high-level review of service police by the Ministry of Defence. It brings welcome clarity to the policing functions of the Royal Navy regulating branch and its personnel and brings the branch more in line with the service police of the Army and the Royal Air Force.

The draft Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2007 will ensure that the three service discipline Acts which form the statutory basis for discipline in our Armed Forces remain in force for a further 12 months. This is essential, and the Chief of the General Staff has noted that discipline and the rule of law are core to everything that the Armed Forces do. The continuation order is also important because it provides an opportunity for Parliament to review annually the disciplinary conditions applied to our Armed Forces. In debating the order, we must ensure that the system of military law supports the operational effectiveness of the Armed Forces.

The key issue to be examined is therefore the implementation of the disciplinary regulations, and I shall ask the Minister a number of questions, of which I have given him notice. What progress have the Government made in producing an accessible manual of military law for members of the Armed Forces? What is the relationship between the court martial system and the Adjutant General’s administrative instructions? Do the Government consider it necessary, in light of recent acquittals, to reappraise the practices and procedures of the service prosecuting authorities? What is the relationship between commanding officers and service prosecuting authorities?

Under what circumstances can members of the Armed Forces deployed or serving on operations abroad be subject to civilian jurisdiction after acquittal by the military legal system? It remains our view that military justice must be a wholly distinct and different process of its own. What was the outcome of the Government’s review of the support mechanisms available to members of the Armed Forces accused under the discipline Acts? What assessment have the Government made of the implications of the recent Law Lords’ ruling in the case of Baha Musa for members of the Armed Forces serving on operations abroad? Will the Government appeal the ruling on the case of Baha Musa? If it stands, what additional training requirements will that entail for the Armed Forces, and what measures will be put in place to protect members of the Armed Forces from any adverse implications of that ruling?

The single services discipline Acts must be kept in force until 1 January 2009, when a single system of military law will be delivered under the Armed Forces Act 2006. As I noted when considering the Armed Forces Bill last year, this is necessary as the old Acts have been so frequently and extensively amended that they have become almost unacceptable as foundation documents. To deliver a single system of military law, among other things, the Armed Forces Act 2006 will provide impetus to a large amount of secondary legislation. Will the Government undertake to brief a group of noble Lords on key issues arising from the draft of all these statutory instruments before they come before this House?

The final order, the draft Armed Forces (Alignment of Service Discipline Acts) Order 2007, is also supported. I would welcome clarification from the Minister on one issue relating to its practical effect. What progress have the Government made in identifying exceptional circumstances where in the court martial of civilians lay members should be members of the Armed Forces and what guidelines do they intend to provide to court administration officers on this?

My Lords, I declare an interest as having appeared as an advocate in a number of courts martial, not least the case involving Baha Musa, to which the noble Lord, Lord Astor, referred, and the case of Martin, which is the fundamental issue in one order before your Lordships' House tonight. It took me back some 11 or 12 years to a time when I stood in a court martial in Mönchengladbach, wondering how I could ensure a fair trial for a young boy of 17—although at the time of trial he was 19—charged with murder, who had been taken to this country on remand and had been on remand in Colchester for 12 months but was flown back to stand trial before a court martial, although he was a civilian and although his father, who had been a serving soldier, had left the Army. It struck me at that time—and I made an application as a result—that nothing could be more unfair or appear to be unfair than to have a young civilian boy tried for the most serious crime before military officers when he had not himself ever become a member of the military.

It was a tragic case. The unfortunate victim had undoubtedly been murdered, but although she was not a serving soldier herself she was a member of the officers’ mess, which to my mind made it rather worse. As your Lordships know, we appealed it all the way to the Judicial Committee of this House, on the basis that the trial was unfair. The Appellate Committee unanimously held that if Parliament had said that a 17 year-old boy was subject to service discipline and could be tried for murder in Germany, it could not be described as an abuse of process. This was before the Human Rights Act had come into force or was even a Bill. Consequently, we lost the appeal. However, the noble and learned Lord, Lord Slynn of Hadley, said that it was,

“disturbing and … wrong in principle”,

and the noble and learned Lord, Lord Hope, said that it was quite inappropriate.

I pay tribute to my instructing solicitor, Mr Gilbert Blades, who has done so much to improve military law in the course of his career and who with great determination took the matter to Europe. It took 12 years—or nine years, anyway. The date of the application was 1998 and the decision was made in the autumn of last year that there should be a judgment from the European Court of Human Rights in Strasbourg to the effect that only in exceptional circumstances should a civilian be tried by a military tribunal.

I raised this matter at the Bill’s Second Reading on 14 June last year. I was delighted that, in the end, the legislation contained provisions for the members of trial tribunals to be entirely civilian laymen but, as yet, the Act has not come into force. It seems to me that, by introducing this provision tonight, the Government have responded perfectly properly and have indicated how the Human Rights Act and the European Court of Human Rights can work. The Minister will appreciate how pleased I am by the Government’s decision to take this step and by how far it ensures that the military system of justice will work properly for the civilians who accompany the Armed Forces abroad.

I now come to the draft continuation order before us. Last year’s Act was a significant step forward: it did a great deal to improve the quality of military justice. From these Benches we put forward certain suggestions which were not acceptable, even to military people on the Cross Benches. We suggested that at times the services should sit as, for example, a joint tribunal and that there should be input from each service into a case. That was not acceptable, but our proposals were all minor compared with the thrust of the Bill that brought the three service disciplines together. I hope that in future there will be a fair and proper system of military justice based on the principles set out in that Bill.

The noble Lord, Lord Astor, referred to the acquittals that have taken place. They have occurred not because of any weaknesses in the military justice system but, in my view—I merely give my opinion and have declared my interest—because of a lack of resources in the investigation phase and mistakes made at that point which led to the prosecutions that did not succeed. However, if the Government are prepared to provide the investigatory branch of the Armed Forces with full and proper resources and training so that they are on an equal footing with the investigation forces in the United Kingdom—if they are capable of doing the samesort of thing forensically and so on—I have no doubt that the procedures will be fair for everyone. Consequently, I am looking at only one aspect of the measure. I know that the continuation order covers a lot of military matters which have nothing to do with courts martial, but I am very pleased to see the order continuing. I assure the Minister of our active interest in, and probable support for, the many statutory instruments that will follow.

On the service police amendments order, I have nothing to add to what the noble Lord, Lord Astor, said, save that we support it.

My Lords, I am grateful to the noble Lords for the support that they have given to these three orders. I noted carefully what the noble Lord, Lord Thomas, said in response to the action taken by the Government following the Martin case, of which he has much knowledge and experience.

The notice the noble Lord, Lord Astor, gave me of his questions enabled me to provide substantive answers and I shall take each of his points in turn. The noble Lord asked what progress the Government have made in producing an accessible manual of military law. I am delighted that work is well in hand on that. In future, the manual will be known as the Manual of Service Law. It will provide guidance to the members of all three Armed Forces and will come into effect in January 2009, although a version will be available for training in summer 2008.

On the relationship between the court martial system and the Adjutant General’s administrative instructions, I point out that those are the Army General and Administrative Instructions. In essence, the court martial deals with criminal offences, rather like the Crown Court in civilian life, while administrative action, which is provided for under the Army General and Administrative Instructions, is intended to deal with professional misconduct. The AGAIs can deal with a professional failing that has been brought to light by a court martial or a civilian court.

The noble Lord asked whether the Government think it is necessary, in light of the recent acquittals, to reappraise the practices and procedures of the service prosecuting authorities. I remind the House that the service prosecuting authorities are independent of the chain of command in terms of the role that they perform as prosecutors. In that regard they come under the general superintendence of my noble and learned friend the Attorney-General. If any action were needed to reappraise their practices and procedures it would be a matter for him to decide.

In matters of service discipline, the relationship between commanding officers and the service prosecuting authorities is most easily defined by the soldier who finds himself in trouble. The service prosecuting authorities are independent of the chain of command and will take an independent view based on the facts of the case and whether there is sufficient evidence to bring a case to trial. In that context, the commanding officer is the chain of command and he is responsible for ensuring that a man under his command who is facing charges is cared for properly and has everything to which he is entitled. It is important that we provide the proper training and support to commanding officers to ensure that they are properly equipped to fulfil that role.

The noble Lord asked under what circumstances members of the Armed Forces deployed or serving on operations can be subject to civilian jurisdiction after acquittal by the military legal system. I suspect that the noble Lord is referring to the case of Trooper Williams, or Lance Corporal Williams as he now is. I shall not detain the House on the background of the case, as I am sure noble Lords are fully aware of it. Trooper Williams was acquitted of charges in the civilian system. The changes introduced in the Armed Forces Act 2006 mean that there should be no repeat of the circumstances that led to Trooper Williams being tried in the civilian system. Commanding officers will no longer have the power to dismiss charges, as Trooper Williams’s CO did, but the Director of Service Prosecutions will have the power to issue a direction that there should be no further proceedings in the military or civilian system. However, if a member of the Armed Forces is tried by the military justice system, the rules against double jeopardy would prevent even a murder charge being tried in the civilian system. I concur with the noble Lord that it is very important to maintain a distinction between the military justice system and the civilian criminal justice system. I believe that the provisions of the service discipline Act and the Armed Forces Act 2006 operate to do just that.

The noble Lord asked me what the outcome was of the Government’s review of the support mechanisms available to members of the Armed Forces accused under that discipline Act. That is quite a complex area. I shall write to the noble Lord to update him on the issue and I shall place a copy in the Library of the House.

I was asked about the recent Law Lords ruling in the case of Baha Musa and what assessment the Government have made of the implications for members of the Armed Forces serving on operations abroad. We have already accepted that the European Convention on Human Rights applied in the Baha Musa case. However, it is important to recognise that the judgment says that the Human Rights Act applies in limited circumstances when we have control of an area such as an embassy or, as in this case, a detention facility. The policies and procedures covering detention are already consistent with applicable UK convention obligations. The judgment on the application of the Human Rights Act relates only to the availability of a remedy before UK courts in respect of alleged breaches of the convention by the Government. The criminal law regulating the conduct of our Armed Forces and the standards demanded of them remain the same and are wholly unaffected by this judgment.

The noble Lord further asked me whether we would appeal the ruling in the case of Baha Musa and what additional training requirements on the Armed Forces will be entailed. As this is a House of Lords judgment, the Government cannot appeal it. As far as our Armed Forces are concerned, it is business as usual which will not require additional training or measures.

Finally, on the progress which the Government have made in identifying exceptional circumstances—where, in the court martial of civilians, lay members should be members of the Armed Forces—and the guidelines we intend to have, this is an important and difficult area. Because the European Court did not define “exceptional circumstances” in the Martin judgment, it would be rash for us to draw up a prescriptive list of what it includes. It was clear from the judgment that the European Court meant “very exceptional circumstances”. From the work we have done on this to date, it seems apparent that each case will have to be judged on its merits, which makes it difficult for us to provide hard and fast guidance to the court administration officer. But we will be working closely with the Military Court Service to develop a set of indicators which might point to exceptional circumstances in a particular case.

My Lords, before the Minister leaves that point, who decides? Is it to be an application to the judge to decide whether it is all civilian, or will it be the court administration officer? Will some sort of formula be applied?

My Lords, my understanding is that the court administration officer would decide. It is difficult to provide prescriptive guidelines to the court administration officer but, as I have said, we believe that by working closely with the Military Court Service we will develop a set of indicators to provide help as to what would define “very exceptional circumstances” in a particular case. This is something which we need to monitor carefully.

My Lords, I assume from the Minister’s reply that the decision of the court administration officer would be subject to judicial review in some way, should the defence think it an unfair determination on his part.

My Lords, the noble Lord makes an important point. I will consider it further and write to him.

I am grateful for the depth of thought which has gone into the consideration of these orders. I will look carefully at Hansard to see whether there is anything that I have missed. I have committed to write to both noble Lords on one point each.

My Lords, I do not want to delay approval of the continuation order for the Armed Forces Act and the service discipline Acts because, of course, continuation is essential for the carrying on of good order and military discipline of our Armed Forces. Excellent work has been done in your Lordships’ House and the other place on the Armed Forces Act and I am happy about the transition arrangements. However, as we are talking about discipline, I wanted to ask the Minister a straight question—as I feel that I am entitled to do—on the disciplinary actions of the unfortunate maritime incident which occurred in the Gulf and on which there have recently been two reports. I should make it clear that although I was one of the people put forward to receive a briefing on this, the short-notice meeting at the Ministry of Defence was called on Garter Day, so I could not attend, and I have not been given an opportunity to read either of the reports. I know only what the media have been in a position to tell everyone, which is not a great deal.

My Lords, I am sorry to interrupt the noble and gallant Lord.

One minute, if I may, my Lords.

My Lords, perhaps the noble and gallant Lord can draw his remarks to a close because I am told that he is out of order.

My Lords, I thought I was entitled to say this. It seems a reasonable thing to say. Has the Deputy Speaker ruled it out of order?

My Lords, we wanted to hear what the noble and gallant Lord, Lord Bramall, had to say, but it should have been said before the Minister drew his remarks to a conclusion. It would have been better had the noble and gallant Lord made his remarks in the body of the debate rather than after the Minister sat down.

My Lords, I have only two more sentences. If the Minister does not wish to reply to me, I shall understand. I allowed the Minister to reply to both Front Benches, which I thought was in order.

My Lords, the noble and gallant Lord had every right to come in after the Front Benches.

My Lords, I understood that it was right for the Minister to answer the Front Benches first. Perhaps I may finish, and I thank the noble Baroness for notifying me of that.

My final point was, how can the Minister justify the complete exoneration of those who in the first place should have done all the things that needed to be done, and which are now going to be done to see that such a lamentable incident so out of character and harmful to the reputation of our glorious Royal Navy does not happen again?

My Lords, I understand the concerns the noble and gallant Lord, Lord Bramall, has raised. He may not know that the House of Lords group that met was determined by the usual channels. The timing and the organisation of that was not under the control of the Ministry of Defence. I recognise that his inability, therefore, to read the Fulton report, as those members were able to do, puts him in a difficult position. I will see what can be done to provide him with an opportunity to see the report under conditions of confidentiality. I note that his comments are based, as the noble and gallant Lord said, on the media. Therefore, perhaps I may answer some of those points directly.

The Hall review, the second of the inquiry, is published, and is available in full on the Ministry of Defence website. I will write to the noble and gallant Lord and provide him with a copy. The Fulton report and the Hall review came to the clear conclusion that, although nothing was done which would justify, we believe, disciplinary action being taken, this was not a good day for the Royal Navy. A number of actions that took place and a number of things that were not done, which could have been done, mean that there are grounds for taking administrative action. That administrative action will be taken by the chain of command of the Royal Navy in the normal way.

The noble and gallant Lord made a specific point on hazarding the ship. I cannot go into the detail for reasons of operational safety, but the ship was not hazarded as part of the circumstances of the operation.

On the point about taking responsibility and errors of judgment, the Secretary of State has been absolutely clear that he takes full responsibility for what took place, both operationally and in the media handling of the event afterwards. He has made that very clear and apologised to the other place in very clear terms.

People have not been exonerated. I do not accept the characterisation of that made in some aspects of the media today. However, I recognise that it is important for the noble and gallant Lord to have an opportunity to see these conclusions.

Within the Ministry of Defence, we absolutely take on board the point that we do not want to see this series of events happen again. There are some very serious aspects from which we need to learn, which have been set out in the Fulton report. We are embarking on a programme of action, which we expect to be completed by the end of this year. We are quite happy for a group of noble Lords to review the level of progress against those actions and to assess whether they are satisfactory.

On Question, Motion agreed to.