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Armed Forces Bill

My Lords, at the outset, I thank the Minister for the rather exceptional treatment that we have had in being able to discuss with an open mind how we could improve this Bill. That is greatly appreciated. I am concerned about whether some form of statutory safeguard is now requisite, as has been spoken to on so many occasions between 14 July 2005 and 16 February 2006 when this was discussed. Is it requisite to do something to avoid repetition of what happened not only to Trooper Williams but to Sergeant Roberts, after years of delay? I am very grateful to the noble Lord for the proposal to end delay and to my noble friend Lord Astor of Hever for trying to fit in another safeguard to avoid delay. Even with that, there still arises the question of what happens after a period of delay when you find that there is no quality of evidence to support the charge. Even if you reduce the delay, the situation for the member of the Armed Forces involved, on a charge where there is no quality of evidence, must be looked at with some care. In this context, the Bill makes no provision to inhibit resort to the process under which trials of cases in the civil courts is ordained by the Attorney-General, whether or not at the behest of the Director of Army Legal Services or what will become the DSP, for offences that otherwise could be dealt with at courts martial. Such ordnance is made ex cathedra, within the closet of absolute discretion, not subject to review by the judiciary, without notice, reasons or any means of objection. That is in defiance of the fundamental principles of justice. It remains a matter of current concern for the Armed Forces that now must be addressed, not only in the interests of justice, but under the new concept that justice has to reflect the provisions of the Human Rights Act. The purpose of my speech is merely to put down a marker for a probing amendment. There is no need to deal with detail at Second Reading, but it is proposed to require the Attorney-General to apply to the High Court if he wishes to resort to the civil jurisdiction for the three serious offences of murder, manslaughter and breach of convention. The High Court would then adjudge whether that would be in the public interest. No one seems to imagine the truth, which is that you should transfer jurisdiction only in the public interest. I suggest that that is a matter not for the Attorney-General but for the court—totally objectively—to decide, as it should decide whether there is the quality of evidence to warrant a trial. In other, non-serious cases, the Attorney-General can make any dispensations or decisions, subject to the one qualification introduced by the noble and learned Lord, Lord Mackay of Clashfern, who said that there must be always some means of objection. In such cases, it is suggested that the qualification introduced by the noble and learned Lord should be met by regulations made under Clause 127(1). So although there is disparity of treatment, in all cases of a transfer from the court martial jurisdiction to the civil jurisdiction a reasoned decision has to be made. That is common to both categories. In the serious category, that decision must be made by the High Court. In the other category, the decision has to be made giving reasons—a totally unreasonable decision would be set aside on judicial review. So, there is a structure. This matter is approached on the basis that, as the noble and gallant Lord, Lord Bramall, has said on more than one occasion, in particular on 16 February, an armed serviceman’s legitimate expectation is that he should be tried for these serious offences by a court martial, if the offence is committed in operational circumstances. That would mean that some of the people who sit in judgment have experience of lethal situations in which mistakes are apt to be made, because the rules of engagement are not readily understood and are sometimes not understandable. Specific orders on such urgent rescue missions as to free hostages and to avoid torture and death—for example, the operations in Sierra Leone and Basra—have to be regarded in a different light from murder in the streets of Manchester. Such matters have to be assessed by someone who has practical experience and knowledge of the situations that arise—and that will be incorporated into the amendment. I am anxious not to detain your Lordships a minute longer than I need to, because I have given you the broad structure of the amendment that I propose to table and, with the leave of the House, I will deal with the details on a subsequent occasion.