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Army: Advice of Attorney-General

My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for instigating this debate and for his thought-provoking introduction to a very important subject. I am grateful for the chance to contribute to the debate and shall try to place it in context. The changing nature of war is now accepted as fact. I am sure that any noble Lord with an interest in military affairs will have read Sir Rupert Smith’s recent book The Utility of Force: The Art of War in the Modern World,in which he describes ““war among the people””. I shall quote from that book:"““Because of the nature of war among the people, the use of force is usually initiated at a relatively low level. It is the citizen and soldier who are affected, not just leaders and commanders. All parties therefore need to know where they stand . . . Our servicemen need to know too: it is they who are held accountable in law when matters are considered after the event. International humanitarian law (IHL), most especially the Geneva conventions and the laws of war, is supposed to be a standard text for all soldiers and officers in the military forces of those states who are signatories . . . The soldier is being held accountable to the law for his actions in these campaigns, and it behoves those who send him to ensure he has an adequate understand of the law and his position in relation to it””." It also surely behoves us to ensure that our servicemen and women are treated with justice when they are called to account, and that that justice is conducted in an appropriate manner. The behaviour of soldiers nowadays is scrutinised as never before. The presence of the media alongside us as we conduct our campaigns has to be taken into account, as of course must the need to conform to international standards of behaviour. That requirement places a heavy burden of responsibility on officers and NCOs in the chain of command to ensure that our functions are exercised responsibly. Sadly, it appears to have failed on several occasions. In another place, I was responsible for getting some of the legislation that applies to what we are talking about today on to the statute book, in particular the Armed Forces Discipline Act 2000, which I took through Committee and spent many a weary hour discussing with Members on all sides of the House. In addition, the Human Rights Act 1998, the Armed Forces Act 2001 and the current Bill have to be taken into account. As a lay person, the requirements appear to me quite clear: first, a clear understanding of the law, and robust and sensible rules of engagement; secondly, the proper training of personnel, focused on how to behave among civilians. Our experience in Northern Ireland and the Balkans is excellent, but sadly it is not enough. That experience must be passed on to all who are involved in operations in a civilian context. Thirdly, we need a sound, reliable system for the rigorous investigation of alleged offences and the prosecution of offenders. Fourthly, we need to recognise that military action is only one part of a highly complex solution to a problem. The failure of the occupying powers in Iraq, particularly the USA, to recognise this has placed a very serious—some would say intolerable—burden on our forces as they attempt to keep order in that country. In investigation, the chain of command clearly has primary responsibility, as has the military police. I should ask in passing, is there not a much greater role for the Ministry of Defence police force or the secondment of experienced police officers from civilian police forces as back-up to the investigating authorities when looking at serious offences? I shall now turn to the role of the Attorney-General. Over the past eight years, we have done much to protect the rights of our service people and to ensure that they are given a fair trial. That was the point of the Armed Forces Discipline Act 2000. After challenge in the European Court, it was recognised that our system of justice under courts martial and summary procedures was inadequate to ensure that people were treated fairly. We attempted to redress that balance. The Act was inadequate, as primary legislation often is, and has since had to be supplemented by secondary legislation to take further account of judgments that have been made. But it is probably now a robust way to ensure that our people are properly represented and are given justice when they are brought before a court martial or dealt with summarily. It is also essential that we comply with the standards of justice expected of us as supporters of the International Criminal Court and the legislation pertaining to it. It would surely be reprehensible of us to have taken a major part in setting up that court and then to say that its provisions should not apply to our own people. In order to ensure that our people are treated under the British system, we must ensure that that system complies with the procedures of the ICC. We must keep that constantly in mind to ensure that we can administer the system on our own. I do not believe that courts martial are an appropriate venue for offences under civil/criminal law. The standard of proof required and the right to trial by jury provide, in my lay opinion, greater safeguards for the accused than there might be in a court martial, even given the changes that we have made. I can give only anecdotal evidence to support that, but more than one senior military officer has said to me that the purpose of summary procedures, and often courts martial, is to punish the guilty, not to administer justice impartially.