---

Armed Forces Bill

My Lords, it is already clear that there is a good deal to discuss in this comprehensive new Bill. I will concentrate on just one aspect: the responsibility of the commanding officer and the chain of command in the disciplinary system. As many noble Lords will no doubt agree, the Government have shown quite a propensity for committing our Armed Forces to conflicts which, perhaps predictably and at an early stage, develop into a twilight zone of combat. Although it may not be consistent with all-out war, it can impose on our servicemen the same pressures and need to take instant life and death decisions because insurgency and terrorism flourish, making it difficult to differentiate between friend and foe. At the same time, because of the full glare of media interest and scrutiny that this phase attracts, to say nothing of the disgraceful activities of ambulance-chasing lawyers, there is more pressure at home and abroad to initiate legal proceedings against our servicemen who may be thought to have exceeded the minimum force consistent with their military tasks. It is therefore important that this new Armed Forces Bill is able, in such circumstances of active service, to strike a just balance between ensuring that the Armed Forces operate within the rule of law and are properly and fairly disciplined if they do not, without at the same time hampering and compromising their effectiveness and the performance of their duty, or putting at risk their lives and those of their comrades. As anybody who has had experience of such situations knows, this is not always an easy balance to strike. Justice cannot be dispensed in a vacuum; it must depend on the circumstances prevailing at the time at the scene of operations and on the rules of engagement, if established. As we have heard, that is not always done. The Bill must therefore be carefully scrutinised against this background. I believe, as do many of my noble and gallant friends, that the key to this lies as much with the responsibilities of the commanding officer and the chain of command as it does with the military prosecuting authority, often far removed from the scene of the action. Although the prosecuting authority—essentially a military stand-alone authority with a military director—must have the final say on whether charges for serious Schedule 2 offences should be heard at court martial on the basis of whether a conviction would be possible, the commanding officers and their immediate superiors are most likely to have the best knowledge of the actual circumstances at the time. Moreover, morale, commitment, steadiness under pressure and, indeed, inspiration and confidence to perform duty to the utmost, depend largely on the leadership and authority of the commanding officer in the various different environments. As the noble Lord, Lord Astor of Hever, said, the commanding officer must remain a key figure in the morale and discipline of our Armed Forces. Although I would not accept that the Williams case was a good reason for limiting the commanding officer’s present powers to dismiss any charge if he does not think there is a case to answer, in that case the commanding officer’s decision, taken in good faith based on legal advice in the theatre, was subsequently shown to be not unreasonable, with the fault lying more in him not being fully supported in Whitehall, as he could have been, despite contradictory legal advice about whether a prima facie case existed. I do not have too much difficulty in accepting that a commanding officer should no longer retain the powers to dismiss serious charges with which he does not have, or will no longer have, the power to deal summarily. But all of this makes it even more important that the commanding officer should not be removed completely from the dispensation of justice for his men, even in serious cases, and can return their trust in him by backing them if the circumstances make that appropriate or by supporting them being disciplined if that is necessary for the preservation of good order and the highest legal and ethical standards. At the moment, the Bill is not entirely satisfactory in that respect. There seem to be three ways of keeping commanding officers properly in what one might describe as the ““disciplinary loop”” without slowing up the process of administering justice, which must be quick and which has certainly not been so in recent years. That point has already been highlighted in this debate. The first of those—this is properly covered in the Bill—is that the commanding officer will continue to have the power to deal with all disciplinary offences, other than the most serious Schedule 2 cases, and that all charges should initially be brought before him, with the proviso that where necessary and appropriate charges would be referred for investigation by the service police. As the Minister has already pointed out, in the case of the Army, the commanding officer’s powers have been strengthened in certain respects. The second way is under Clause 113(2), which reflects ““the shooting investigation policy””. This is extremely vague and confusing, as indeed is the whole Bill, with its convoluted drafting. It must be something of a nightmare to any adjutant or regimental sergeant major trying to master it, but I suppose they will be eased through it in some way. Clause 113(2) gives the commanding officer some jurisdiction about whether he refers a matter to the service police, as the Minister at the Select Committee hearing in another place confirmed. Would, for instance, that jurisdiction cover a killing which was seen by eye witnesses, perhaps at command level, to be clearly within the rules of engagement? What about accidental discharges, which are very prevalent on active service, perhaps bringing injury to a comrade? The question of referral to the police needs to be cleared up with further guidance about what constitutes criminality in cases of that sort. Finally, there would be the procedure not yet included in the Bill—although the Minister covered it in respect of supplementary regulations—which I hope will be contained in an amendment to be tabled in due course and which to my mind is essential. That is for the commanding officer to be informed of all submissions put forward by the service police to the director of the military prosecuting authority setting out the basis for that submission, not just those referring to less serious offences for action by the commanding officer as written into the Bill. The commanding officer should then have the opportunity to make a report to the director through, I suggest, his superior headquarters. This is important in cases where the commanding officer might be unduly protective. Superior headquarters could provide a broader perspective which would keep the military director of prosecutions fully in touch with what was going on on the ground. As the director would consider any report from the commanding officer at the same time as he considered the service police report, there should be no undue delay. The involvement in some form of the chain of command is important. It should be written into the Bill and not be left to supplementary regulations as suggested by the Minister. This is important because the Bill combines the three service discipline Acts into one single Act and, as it admits, reduces the differences between the systems to a minimum. Whatever the Strategic Defence Review may have claimed, joint arrangements are hardly new. Having taken part more than 60 years ago in the largest combined operation that the world has ever seen or, thankfully, is ever likely to see, I can say this with some feeling. The services remain very different animals—if they do no object to that description—with different pressures on them in combat and often with different disciplinary imperatives and requirements. Many operations are, rightly, jointly conducted and, one would hope, better co-ordinated, but some remain largely single service. When you treat all service personnel alike as regards, for instance, a single prosecuting authority under one director who may be from any service—if he is not a civilian—and a standing court martial, there may, and probably would, be advantages from a legal point of view but, inevitably, you will lose some awareness of the special circumstances and pressures pertaining to personnel in that particular service at that particular time. Although I can see the advantages of being able to deal from a disciplinary point of view with, for example, men and women of a different service who happen on operation to come under a single service command, much of the Bill has elements of bureaucratic tidiness about it, which makes it—I stress it again—even more important that the chain of command remains in the loop. I hope, therefore, that noble Lords will look with favour on the simple and constructive amendments which would achieve this when they are brought forward at the proper time.