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Army: Advice of Attorney-General

My Lords, I associate myself with all of your Lordships who have thanked my noble friend Lord Campbell of Alloway for raising this issue in the House today. As I think the noble Lord, Lord Thomas of Gresford, said, my noble friend is in a unique position to do so. He has not only practised as a Queen’s Counsel in the courts for many years, but also experienced some of the most severe fighting ever seen on the continent of Europe, in May 1940 during the devastating German advance. I also thank the noble and learned Lord the Attorney-General for a meeting he attended, together with General Howell and a number of his own civil servants, to discuss the matters before this House today, and other matters. I doubt whether the Attorney-General will agree with everything I say at the Dispatch Box; but, agree or disagree, I would like him to know that we appreciated the fact that he gave us so much time. As your Lordships will recall from the debate on 15 December, the noble and learned Lord the Attorney-General believes he has the constitutional power, at any stage during its investigatory or prosecutorial phase, to transfer a case from the military system of jurisdiction to the civil system. He knows that we disagree with that belief, for a number of reasons that were set out in detail during that debate. Briefly, those reasons are that we believe his supervisory power over the military prosecutorial authorities does not include a power to take executive decisions with regard to the cases in front of those authorities; we can find no precedent for any previous Attorney-General asserting this power; and, throughout, the noble and learned Lord has given no legal or constitutional justification for what he has done. Irrespective of whether we or the noble and learned Lord the Attorney-General are right about this, no one can doubt that the power asserted by him is exceedingly wide and wholly unreviewable in the courts. As so many of your Lordships have said, that is proving extremely damaging to the state of morale in the Armed Forces. A soldier, aviator or seaman has the right to expect that, if his judgment in the course of operations is going to be called into question, that judgment will be considered by those who understand what it is like to be in a similar situation. That, surely, is the crucial issue that lies behind these matters. Soldiers facing the kind of difficulties outlined so graphically by my noble friend Lord Astor have to make decisions in extremely short timeframes, to use modern jargon, sometimes split-seconds. That is an experience very few civilians have. Because the Attorney-General’s discretion is so wide and ill-defined, the crucial ingredient we now need to insert into decisions about whether a particular case should take place under civil or military jurisdiction is a powerful injection of certainty. That is precisely what the proposal by my noble friend Lord Campbell of Alloway will give. Servicemen will know that, before a case can be transferred from military jurisdiction to civil, they will have a right to be heard in the High Court before one of Her Majesty’s judges, and that it will only be after that decision that a transfer can be made. My noble friend’s proposal will not only bring certainty; it will bring two other important ingredients to which many of your Lordships have referred today. The first of these is transparency. Justice will be seen to be done. The second is that it will give the opportunity to both the Attorney-General and the serviceman in question to explain, and make submissions about, what is in the public interest. In my view, that factor is of even greater assistance to the noble and learned Lord than it would be to the serviceman, because the noble and learned Lord will inevitably face criticism, as many of your Lordships have said, about being influenced by political factors. We all accept that he has never been influenced by such factors in taking decisions during the time that he has been in office; but he will undoubtedly be accused of being so. Such a public hearing in front of a High Court judge will give him the opportunity to demonstrate that he is influenced purely by the wider public interest, as explained by the noble Lord, Lord Thomas of Gresford. Many other issues have been discussed in the debate. In my submission those concerning the rules of engagement—the importance of the principle that as long as a serviceman sticks to the rules of engagement he will not be subject to prosecution—and the wider questions about the adequacy of resources devoted to investigations by the military authorities have a particular importance in overall consideration of these issues. Your Lordships’ House is extremely fortunate in that, very soon, the Armed Forces Bill will be before us. Perhaps we will have an opportunity, at that time, to consider not only the proposal of the noble Lord, Lord Campbell of Alloway, in the form of an amendment to the Bill, but other possible solutions to the difficulties of certainty and morale which have been so eloquently expressed by so many of your Lordships today.