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Armed Forces: Chain of Command

rose to call attention to the case for upholding the integrity and legal authority of the Armed Forces chain of command; and to move for Papers. The noble Lord said: My Lords, the object of this speech, devoid of political motivation, is to seek to   persuade the Government and the noble Lord, Lord Drayson, to clear a pathway through the stables of the Ministry of Defence’s regime under the aegis of the director of Army Legal Services, in order to uphold integrity and legal authority of lawful decisions of commanding officers taken under military law, and to enjoin that no further request shall be made by the Ministry of Defence to challenge the rectitude of such decisions in such circumstances under the concurrent jurisdiction. The Trooper Williams case but exemplifies the woeful ineptitude of the extant ill-conceived regime, which remains of general application to all outstanding cases. Perhaps other noble Lords will deal with other cases. Albeit that the challenge in that case was to no avail, the chain of command and its integrity were none the less impugned, as was the intention, as is wholly apparent from the documents to which reference shall be made in this case. Those documents also reveal that this is no little legal difficulty. The decisions of the commanding officers under military law were commended by the trial judge, now a member of your Lordships’ Appellate Committee, on the basis that there was no evidence on which a reasonable jury, properly directed, could convict of murder. The charges laid by the Crown Prosecution Service, on reference by the Attorney-General and at the request of the MoD, had, for such reason, to be withdrawn by the Crown at the trial. Hence, the concern of the noble and gallant Lords on the Cross Benches, who speak for the three armed services with ultimate authority. On 19 May, the third day of the debate on the Address, this problem was referred to by the   noble and gallant Lord, Lord Inge. He referred to the investigations in the case of Trooper Williams, which were instituted by General Sir Anthony Walker. It is right that your Lordships should know that without the general’s advice, this speech could never have been made. The noble and gallant Lord also expressed his concern for the number of soldiers being investigated for war crimes and said that,"““British lawyers are hiking their wares in Iraq . . .  on a ‘no fee, no win’ basis””.—[Official Report, 19/5/05; col. 144.]" The noble and gallant Lord also said that those investigating such cases need to understand the real pressure under which our soldiers operate and the fact that the number of cases being investigated is a cause for concern and will undoubtedly affect the morale of our own Armed Forces. Against that background, one comes to the Trooper Williams case. In the wake of the collapse of the trial, Trooper Williams, who served with a squadron of the 2nd Royal Tank Regiment which was part of the 1st Kings Battle Group in Iraq, and in the wake of the observations of the trial judge, the case for upholding the integrity and legal authority of the chain of command—the bedrock of trust—could already have been made in those proceedings. However, your Lordships’ attention will also be drawn to MoD procedures that are to be revisited in this debate and even perhaps, in due course, by amendment to Queens Regulation or the Armed Forces Discipline Act. The threat of indictment for war crimes or murder hovers over our armed peacekeepers, in aid of a civil power. In this case, the facts are now fairly well known. The indictment was laid on 7 September. At the trial in February 2005, two weeks after a warning from the judge that if the Crown could not adduce evidence on which the jury could convict, the case would be thrown out. On no previous occasion, in such circumstances, has resort been had to the concurrent jurisdiction. Regarding indictments for war crimes, when the noble and gallant Lord, Lord Boyce, as Chief of the Defence Staff, sought assurance that armed intervention in Iraq was lawful under public international law, the chain of our command of our Armed Forces entered a new dimension. No such assurance had ever been sought before. Article 8 of the Rome statute envisages the institution of such proceedings in the United Kingdom or before the ICC. As long ago as 10 April 2001, the noble Viscount, Lord Slim, advised the House that this   is a matter that occasions ““disquiet among field   commanders””. Can pre-emptive armed action be justified as self-defence in the absence of an immediate substantial threat of attack? It is understood that a number of servicemen, some of field rank, have already been warned that they may be charged. As to the procedures, Lieutenant-Colonel Griffin of the 1st Battalion, the Kings Regiment, carried out an investigation, satisfied himself that the shooting was within the rules of engagement, which had been observed, and that no action was necessary. That decision was taken under guidance drafted by Colonel Barnett, the senior legal adviser in Iraq, which was issued on 28 July; that is, post-TELIC 2, the second phase of operations. Then on 18 August, the MoD advised further enquiries. On 4 November, the Special Investigation Branch sent its report in favour of a charge of murder to the   commanding officer of the 2nd Royal Tank Regiment. On 20 November 2003, he dealt with the charge, which had been reported under the Army Act and had been laid contrary to the advice of Colonel Barnett. On the evidence, Colonel Barnett provided a strongly worded minute to the effect that there was no prima facie case and the charge should be dismissed. That advice was highly commended by the trial judge. On 14 February, the file was handed to Brigadier Vowles, the Brigadier Advisory, who disagreed with the decision. On 4 March, he minuted a proposal to amend Queen’s Regulations to make it more difficult for a commanding officer to dismiss charges in future. On 24 March, the Adjutant-General wrote to CGS and CIC Land, copying his letter to the Brigadier, to inform them that he intended to write to the Director of Army Legal Services to ask him to draw the case to the attention of the Attorney-General for the purpose of having resort to the jurisdiction. In that letter, the reason given was:"““With current legal, political and ginger group interest in the deaths of Iraqi civilians during operation telic: our investigation and subsequent failure to offer for prosecution could become a cause celebrefor pressure groups, and a significant threat to the military justice system””." Such extraneous reasoning has nothing to do with the merits of the case and bore no kinship with the due administration of justice; and no suggestion was made at any time either before or after trial that the decisions of the commanding officers were irrational, perverse or incompatible with or contrary to the ECHR. Was that to have been a show trial on that reason? On 31 March—