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Armed Forces Bill

My Lords, just over 10 years ago, the European Court of Human Rights ruled that this country’s court martial system did not comply with Article 6 of the European Convention on Human Rights, which guarantees anyone charged with a criminal offence the right to a hearing before an impartial tribunal. The matter was soon remedied by the Armed Forces Act 1996, which, among other things, provided for a legally qualified prosecuting authority and made the legally qualified Judge Advocate General a member of the court. That Bill was enacted by a Conservative Government, so it is a little surprising to note that, on Second Reading in another place, the Conservative Member of Parliament for Canterbury referred to this Bill as continuing,"““an ugly trend towards civilianising the military world””.—[Official Report, Commons, 12/12/05; col. 1176.]" I follow the noble Lord, Lord Astor of Hever, the Conservative spokesman, and the noble and gallant Lord, Lord Boyce, the previous speaker, in saying that we need a separate system of service law. That view is perhaps common to us all in this House. However, this Bill continues what I will call the desirable trend, through a number of Governments of different political colours, of making the separate system of service law fairer, more independent and, as time goes by, more appropriate for the service men and women of the 21st century. I am sure that the noble Earl, Lord Attlee, will agree with me in tracing that trend to the last year of his grandfather’s Government in 1951, when, for the first time, an appeal system was introduced against the findings of courts martial. I do not think that I have heard it said today that the Bill gives a remarkable universal right to anyone who is charged with a criminal offence to elect trial by court martial instead of being tried summarily by their commanding officer. It also creates a more professional, single-standing court martial composed of three persons, five persons or possibly more, which is to be determined by regulation. I would welcome any information and clarification that my noble friend can give on the criteria for saying that the court martial will be of any particular size. My interest in the court martial system dates back more than 50 years to the Korean War when, as a newly qualified barrister, I found myself attached to the Directorate of Army Legal Services for Japan and Korea. I must admit—I hope that none of the noble and gallant Lords who have spoken today will disagree too much—that there was what I would gently call an ““amateurish”” approach to the appointments to individual courts martial, which this Bill seeks to change. What I remember observing all those years ago was really not worthy of a modern Army. Like the noble Lord, Lord Thomas of Gresford, I note the most interesting advice and views given by the present Judge Advocate General, Judge Blackett, to the Constitutional Affairs Select Committee of another place. He was critical of the military members of the court martial having any role in sentencing. Perhaps unusually, I found myself in agreeable accord with the noble Lord, Lord Thomas of Gresford, on Judge Blackett’s suggestion that the members of the court, other than the Judge Advocate General, should be treated like a jury in a civil court, which has no role in sentencing. If there are particular military or Ministry of Defence considerations that affect or perhaps ought to affect sentence in their view, these should be put to the Judge Advocate General in open court, who should be left with the sole responsibility of determining sentence. I wonder whether the Minister would comment on the point also made by the noble Lord, Lord Thomas of Gresford, with very recent experience of courts martial, that whereas a civilian jury has to vote at least 10:2 to get a guilty verdict—that is only after it has been persuaded to try to reach a unanimous verdict—a court martial may privately come to its view by a simple majority of the three, five or seven members. Of course, there have always been differences of many kinds in the procedure of a court martial compared with a civil court, but the issue may be more important now. This point has not so far been mentioned, but I hope that the noble Lord, Lord Thomas, will agree with me on it, as I have agreed with him, because it logically follows from what he said. The matter of majority has become more important because the Clause 50 will extend the jurisdiction of a court martial to include even the most serious offences committed in the United Kingdom. Those offences will no longer be within the exclusive jurisdiction of the civil courts. I do not object to this extension of the service jurisdiction, because the facts and so on of the manslaughter or whatever may solely affect military people. I am happy that the normal primacy of the civilian system over offences committed in the UK should give way where the offence has an entirely service-related context. As we know, the noble and learned Lord the Attorney-General has a superintendence—I think that that is the proper word—of the services’ prosecuting authority, as well as a supervision over the civilian Crown Prosecution Service, and so is the appropriate person to determine in what kind of court borderline cases should be heard.