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Army: Advice of Attorney-General

My Lords, I am grateful to my noble friend Lord Campbell of Alloway for introducing this debate. I am neither a lawyer, a former Minister nor a former CDS. I am much closer to the shop floor, a humble major, and I am subject to military discipline as we speak. Fortunately, I have never come even close to having to engage an enemy, but like every other member of the Armed Forces, I have to be prepared to do so at no notice. I am a serving TA officer. I am liable to be called up for operations and I have taken part in two so far. However, noble Lords should understand where I come from. If I had to engage the enemy and apply lethal force, I have absolutely no confidence whatever that I would be promptly and fairly dealt with—not one shred. However, it is important for noble Lords to understand that I have full confidence in the chain of command—my commanding officer, my brigade commander, the divisional commander, Commander-in-Chief, Land, and the Chief of the General Staff. But they cannot help me or exonerate me of any wrong-doing, even if I had acted precisely in accordance with their intent and with the rules of engagement. On current evidence, I will not know whether I had acted properly and legally for at least two or three years, if ever, even though I might have had only as many seconds in which to make my decision during the operation. There does not seem to be a system to exonerate those who have only done their duty, and legally—at least not any longer for murder and manslaughter. This applies equally to the Armed Forces and the police, who have their own problems. I will resist the temptation to comment on the working of the APA and the CPS, but I agree with almost everything that my noble friends have said. I expect that some noble Lords wonder why soldiers continue to serve and, in particular, whether I would agree to go on another operation. There are numerous hazards on operations: injury; sickness, including post-traumatic stress disorder; and death. Delayed justice is just another hazard. Everyone, including me, just hopes that it will not be him. Would I go on operation? My biggest problem as a TA officer is my civilian occupation, which happens to be in your Lordships’ House, but it could be elsewhere; it is not the statistically low risk of being hit by delayed justice. Moreover, I will be 50 years old in October, so it is about time for me to consider retiring, but I will certainly not consider resigning because of this problem. What advice would I give to a young man considering joining the British Army, either the regular Army or the Territorial Army? Until we sort out this shipwreck of a disciplinary system, supervised by the noble and learned Lord the Attorney-General I would advise joining the Royal Navy or the Royal Air Force, which offer just as good a career. There is just as good an opportunity to make valuable public service and virtually no chance of experiencing the difficulties which were faced by Trooper Williams. I pay tribute to him for conducting himself so well. Noble Lords will have seen the shocking newspaper reports last weekend. They will have detected a fairly robust line in my speech and interventions. Even in high-intensity war, once the enemy is a prisoner and no longer a threat, he is entitled to entirely different treatment. Whether it is a war-fighting or a peace-keeping operation, prisoners must be treated humanely, not only for legal reasons, but also to facilitate reaching the desired end state by winning the hearts-and-minds campaign. I shall not weary your Lordships with the detail. However, in every year of my military service, the need to protect prisoners and other vulnerable people during operations has been drummed into me. It is extremely hard to understand why we are suddenly experiencing problems in this respect. It is no use Ministers and noble Lords saying that such cases have been unusual in Iraq. During Operation Banner in Northern Ireland, which ran for several decades, soldiers were under severe provocation, but problems were rare, especially as far as gratuitous assault was concerned. Sadly, things did go wrong on Operation Telic in spring 2003. If they had led to a court martial by the end of 2003, or perhaps early in 2004, or at least charges being laid, would matters have gone so badly wrong in 2004? If one exercises military discipline promptly and fairly, with appropriate checks and balances, and a short ““flash-to-bang”” time, one can get away with lighter punishments, but still have the same deterrent effect. In addition, more serious problems can be completely avoided. My own view and experience is that our system of military discipline is falling apart. I do not find myself in agreement with the noble Lord, Lord Moonie, despite his experience, but I look forward to debating the Armed Forces Bill with him. His experience will be invaluable. I will give your Lordships an example of where the system is falling down at a low level. It is falling down with the ingress of the ECHR and by means of the Armed Forces Discipline Act. In 2002, I was driving along the A303 on Salisbury Plain in my Land Rover Discovery at 65 to 70 miles an hour. I was overtaken by an Army heavy recovery vehicle, towing another heavy vehicle. This was reckless. My duty was to report this to the Royal Military Police and I did so. My evidence alone would have been quite sufficient to convict since I was experienced with this type of vehicle—I was not just a second lieutenant straight out of Sandhurst. However, the Royal Military Police never took a witness statement from me; therefore, no disciplinary action could be taken. If it had been, the penalty under summary jurisdiction need not have been severe—perhaps a £150 to £200 fine—but it would have deterred the driver from committing that sort of offence. Theoretically, it could be a charge of dangerous driving, an imprisonable offence, but my point is that there is no need to do that; there could be a short ““flash-to-bang”” time and a modest fine, and it should all be over in less than a week, using summary dealing. But suppose that the driver lost control of the vehicle—the 37 tons of these two vehicles—and ploughed into a school bus, causing numerous casualties; then I suspect the Royal Military Police would ring me up very quickly to ask for a statement. It would be an open-and-shut case of causing death by dangerous driving, and no doubt a prison sentence would follow. When I raised the issue at a previous debate, the then Minister, the noble Lord, Lord Bach, never wrote back with an explanation; presumably there was none. My point is that if you have the moral courage to take decisions promptly and fairly, you can avoid much greater problems arising later and do so with less severe punishments.