---

Armed Forces Bill

My Lords, of course I follow the noble Lord, Lord Judd, in his concluding words of tribute—and well deserved they are—to the qualities of our fighting services in whom we have such pride. By my calculation, the seven gallant and other very senior officers who are due to speak in this debate muster between them some 34 stars. As a fairly humble national serviceman, I feel that the qualities of brevity and diffidence are both prudent and seemly. I shall try to achieve both. Along with many others who are better qualified by experience than I am, I think that there is much to be welcomed in this Bill. Focusing as I tried to do on the Bill’s legal aspects, I singled out in particular this consequence of integrating the service discipline Acts—namely, that where the three services are in future deployed in a joint operation, personnel serving on a fully joint basis in fully joint units will be subject to the same disciplinary system. That must surely be of immense importance to commanders and to efficiency generally. This merging of the individual service discipline Acts is therefore an extremely valuable reform. But as has been pointed out a number of times today—first by the Minister—the Bill comes at a time when what one used to call the military justice system has been under a degree of scrutiny and has attracted a degree of anxiety for which it would be hard to find a precedent. There are a number of reasons for that. For example, there is uncertainty as to what substantive law applies to our soldiers if an operation—in Afghanistan or, indeed, Iraq—should develop from one phase into another phase. Can an international conflict situation develop out of an operation intended originally to assist reconstruction of the civilian population and the civilian arrangements? That can be said to happen if such an operation sustains serious armed opposition. It is important for those taking part to know whether that transition has occurred or not, because very different rules apply as to what soldiers may do. Questions of this character can be expected to arise with increasing frequency with the new pattern of deployments that seems to be emerging and, indeed, has been emerging for some time. They add to the difficulties and dangers that our troops face, and they surely emphasise the critical importance to them of having confidence in the legality of what they are required to do and, further, in the fairness of the disciplinary processes and structures within which they work. I welcomed the Minister saying earlier this afternoon that fairness was the key consideration. He said that, above all, the military justice system must be fair. I believe that it is that concept of fairness that resounds most in the minds of our military in this context. People know that they have to work within the law; they ask only, as they are entitled to do, that the law be made reliably clear to them by those who deploy them and that its disciplinary enforcement take full and fair account of the stresses and dangers that they face. I now turn to the Bill. It cannot of course be expected to deal with the substantive law applying to specific operations, but it does deal with the processes by which disciplinary justice is delivered. In the context of confidence in the fairness of prosecuting decisions, I found it curious, not to say dismaying, that the new Director of Service Prosecutions is not required by the Bill to be a serving officer. Clause 358 sets out the requirements for this particular office, which all relate to legal qualifications of one kind or another. Why has this departure from each of the individual service disciplinary Acts been made? The Minister may reassure us, or seek to do so, by saying that it is the intention of the Government that in practice the Director of Service Prosecutions will always be a serving officer. If that is the case, why can it not be specified as necessary in the Bill? If that were indeed the intention of Ministers, we should welcome it. But it is worth exploring why it would be valuable. It would be valuable because it would be seen to be some safeguard against prosecuting decisions being taken in ignorance of the character and influence of the operational stress that the soldier cannot avoid. The noble and gallant Lord, Lord Bramall, has touched on this already, with a wealth of personal experience. It would be good for justice and for confidence in justice if the new director had to be a serving officer. That would at any rate give him access—although inevitably at second hand, one imagines—to information about and an understanding of operational stress. Of course it would be better if he had recently had personal operational experience, but I suspect that that is too difficult in modern conditions. It is reassuring to learn, as I did yesterday, that every young officer in the Army Legal Services typically serves a six-month secondment as a platoon commander or equivalent in an infantry battalion. The failure to require the Director of Service Prosecutions to be a serving officer has not, I guess, passed unnoticed. I would be surprised if it were not seen as being of a piece with what is seen, for example, as the increasing practice of employing civilian counsel to prosecute in courts martial. They will only very rarely, and coincidentally, have any service experience these days. There is in some quarters perceived to be a civilianisation of the military justice system, which occasions well placed anxiety. This departure from the pattern of the individual service discipline Acts in not requiring the director to be a serving officer is alarming, not least because it will inevitably be seen in the context of the notorious case of Trooper Williams, which, thanks to my noble friend Lord Campbell of Alloway, your Lordships’ House has valuably examined and which has already been referred to this afternoon. It is worth reminding your Lordships that in that case, the commanding officer, acting entirely within his legal powers, now to be taken away by the Bill, and on legal advice obtained in theatre, got it absolutely right in dismissing the proposed case on the grounds that, in the operational circumstances prevailing at the time, there was not enough evidence to warrant a prosecution. Nearly two years later, this belatedly became the view of the Director of Public Prosecutions, to whose civilian service the case had been very dubiously referred, and the case was dropped virtually at the door of the court. On the co-existence of the parallel civilian jurisdiction and the military, amendments that my noble friend Lord Campbell of Alloway will table will give us most valuable insights into the possible role of the High Court in making a referral instead of the Attorney-General. I think that there will be plenty of room for valuable debate there. I have thought it very regrettable that the Government have removed the jurisdiction of the commanding officer in this context, which was so correctly exercised in the case of Trooper Williams and which I believe has been of long standing. If it has been of long standing, it is rather interesting to reflect on why that is the case—I have not been able to look it up—and on what was said in its favour in the first place. There have been plenty of opportunities to get rid of it before now. It is important to have an idea about why this has happened. I listened with care to what the Minister said; I listened with no less care to the noble and gallant Lord, Lord Bramall, when he said that he would not have too much difficulty in accepting the removal of the jurisdiction. It is important to know whether it is being done in deference to Strasbourg and the ECHR. Does it derive from some specific judgment? Can we be assured that this is not another example of gold-plating? After all, this jurisdiction had co-existed with our obligations under the ECHR for some 50 years before Trooper Williams’s case. I will want to look carefully at what the Minister has said, but I note with a little scepticism the assertion that the commanding officers do not want the jurisdiction. Of course I have great respect for what General Sir Mike Jackson has evidently said, but I doubt whether it is true that Trooper Williams’s commanding officer, his successor or his contemporaries do not want that jurisdiction. That power is of course reviewable judicially if it is exercised irrationally or unlawfully. I would be perfectly prepared to see the Attorney-General, who has a corrective overall supervisory role, being allowed to appeal against this exercise, but there is plenty here to be looking at. I do not give up my initial and instinctive reaction of regret that this power is being taken away. The noble and gallant Lord, Lord Bramall, asserted that military justice cannot be exercised in a vacuum. I respectfully agree and with that in mind expect that we will take up some time in what will be a productive Committee stage.