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Armed Forces Bill

My Lords, the noble Lord, Lord Drayson, and both the present and previous Secretaries of State and MoD officials, have made themselves available to many noble Lords to talk about this legislation. That has been extremely helpful and appreciated in one’s attempts to understand a Bill of such importance to the Armed Forces. The service disciplinary Acts of 1955 and 1957 came into use soon after the United Kingdom subscribed to the human rights convention, but were not much affected by it until the last decade. Some significant changes, particularly in arrangements for courts martial and other criminal proceedings, were then introduced due to findings by the European court. Whatever its many merits, the convention has not been an easy bedfellow for the Armed Forces. It has led to changes for the three services which, in the manner of the services, they must learn to accept. But the tried-and-tested links between command and discipline have been weakened. Now is not the moment to rerun these arguments, so I turn to the Bill. It will be the basis for all service discipline for perhaps the next half-century or more. The Explanatory Notes are a model of what should be provided for such complex and detailed legislation, and I warmly thank the authors for that. I accept that the Bill is timely, not only because there is more joint expeditionary activity than occurred in most of my career, but the much reduced size of the three services makes it a sensible exercise in economy of scale as well. All three services have to compromise to some extent to achieve the commonality in treatment which the Bill now brings. That, too, I accept. But I have some reservations and questions which I shall now touch on, and may take further when your Lordships consider the Bill in Committee. First, in Clause 8, which is entitled ““Desertion””, is the meaning of ““relevant service”” sufficiently clear and usable when service operations may vary even more widely than is the case today? The Army and Air Force Acts of 1955 dwelt simply on active service, which is not mentioned in this Bill. The Naval Discipline Act of 1957 states that a person is guilty of desertion if he leaves or fails to attend at his ship or place of duty with the intention of remaining permanently absent from duty. Are the definitions of ““relevant service”” in Clause 8 sufficiently explicit for the crime of desertion? For such a serious charge, there must be no ambiguity about what constitutes the crime. Maybe the Minister will be able to reassure me. Secondly, I was surprised to see how frequently the Attorney-General is mentioned in the Bill and Explanatory Notes and by the number of specified responsibilities. For example, Clause 68(4) is a model of obfuscation of intent. Nevertheless, Clause 324 is a helpful exclusion. The Attorney-General gets but one specific mention in the Air Force Act 1955, and that is in relation to his consent to try a civil offence committed outside the United Kingdom which when committed in England is punishable by the law of England. The Bill suggests a much more hands-on role for the Attorney-General than heretofore. Would that be another prop to ward off those who might use the human rights convention and Article 6 to prise disciplinary responsibility out of the hands of the military? I should welcome some explanation from the Minister. My third concern is that I strongly disagree with Clause 116, which cuts the commanding officer out of the process of considering a serious charge against one of his personnel. All personnel under his command look to him for leadership. To bypass him on a critical matter affecting one of their comrades implies to his personnel that their CO may not be trusted. If he is not trusted on that, his trustworthiness may be undermined in his other areas of responsibility for his personnel. I noted the Minister’s assurance that a statutory instrument will be introduced to address this concern. We need to see it soon. My fourth concern is with Clause 358. Tucked away in paragraph 731 of the Explanatory Notes is the statement:"““There is no requirement that the DSP be a member of HM Forces””." The noble and learned Lord, Lord Mayhew of Twysden, and other noble Lords spoke strongly about this. The three services have had uniformed legal branches for many years. The RAF legal branch was introduced in the 1920s. All three services have been expanding their number of uniformed legal officers—a growth area in stark contrast to the major reduction in overall numbers in the three services. There is a well mapped-out career pattern, and people in those branches would be less than human if they did not aspire to advancement in their chosen service and profession. To suggest that it might not be possible to identify and bring on suitable candidates for the post of DSP is a proper turn-off. Is it realistic to consider head-hunting an outsider for DSP who has had little or no experience of any of the three services? It would be as ridiculous as headhunting for a commander-in-chief. This post must be retained in uniform to give confidence to those being charged by him that he knows the services well. My fifth concern is the new arrangement for redress of grievance. The Bill introduces a service complaints panel that will have powers under Clause 333 to act on behalf of the Defence Council. I note from the debate in the other place yesterday on Deepcut that there is interest in the independent commissioner who is mentioned in Clause 334. I was pleased to note that Mr Ingram stated, more than once, the importance of upholding the chain of command. For the fighting services, that is essential. The government amendments mentioned by the Minister must not undermine it. It has been suggested that the service boards have been overloaded and that that has led to delay in complaints being resolved. I do not know what comparisons have been made with previous experience to support such an assertion. Service boards’ membership has not been reduced that much, but the size of the three services and thus the likely number of complaints to be dealt with most surely has; if not, it indicates a level of dissatisfaction which must have grown alarmingly. My experience was that such matters deserved and had high priority. Paragraph 663 of the Explanatory Notes points out the importance of the statutory redress system. The case for changing a right that,"““dates back to at least the 19th century””" seems far too weak to me so far. I am also wary of the catch-all provision, Clause 332(2), which could, it appears, give the Secretary of State unbridled power to bar types of complaints. The Minister and other noble Lords mentioned the problems of delay; that is, a long time between a charge being made and it being heard. There is abundant evidence that the complexities of the law today are a major factor in delays. For the military system, it must make sense to deal expeditiously with charges and even to accept an element of rough justice as a result. Unresolved issues can have only an adverse impact on morale. I welcome the Bill and commend those who have brought it together, but there are a number of important points that should be further examined and debated.