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Armed Forces Bill

My Lords, I declare an interest as a recent commanding officer of a Territorial Army regiment. Before going further, perhaps I may say how pleased I am at the recent acquittal of the soldiers of the Irish Guards in their court martial. The fact that two of them have indicated their wish to cease serving as a result of the way in which they have been treated ought to give a strong message to the Government. If we continue in the direction that we are going, more will follow. It would be logical for me to focus my contribution in this debate on the powers of the commanding officer in the Army and on his centrality to everything that the Army does. It is difficult for anyone who has not served in the Army to understand fully the role of the commanding officer. It is helpful that several of the noble and gallant Lords who have spoken so eloquently today have, despite ending their military careers at least five ranks above that of a commanding officer, emphasised the significance of that position. But let me add my voice to theirs. An army is an organisation which exists to exert the will of its government by the controlled use of force. I emphasise the word ““controlled””. Those who are the instruments of that army—the individual soldiers—must, of course, be capable of aggression, but, equally, they must be controlled very carefully indeed. This means that they must have a respect for authority quite unlike modern civilians. Inevitably, there is a hierarchical structure, but one person, one appointment, has to be the pivotal point in that hierarchy, and in the British Army that person is the commanding officer. A regiment or a battalion—I use the words interchangeably—is commanded almost always by a lieutenant colonel. He will have at least 15 to 20 years’ experience of commanding soldiers. A regular commanding officer will inevitably have operational experience and he will have been through the Army’s rigorous command and staff training procedure. I said a moment ago that in the British Army it is the commanding officer who is the pivotal point in the hierarchy. This arises for several reasons. The first of these is what we call the regimental system, under which the regiment is central to a soldier’s existence—he normally wears its badge throughout his career—so the man or woman at its head is naturally the key person to his career. The second reason is because, operationally, the commanding officer is at the highest position at which it is possible to know each soldier personally, as well as the operational situation he finds himself in, and is the most senior person to maintain responsibility for him beyond just the operation on which they are both currently engaged. A regiment may move from one brigade to another, but a squadron or company—even if detached for a phase of an operation—remains always part of its original regiment and always returns to it. The regimental system may have arisen for historical reasons, but it has been retained because it works very well indeed. Accordingly, the ethos of command within the Army is designed to foster it and everything flows from it. The powers and centrality of the commanding officer are therefore something which we tamper with at our peril. Perhaps I may turn now to a couple of specific areas where I see the Bill at risk of detracting from those powers and to which I hope we will return in Committee. Where the Special Investigations Branch of the Royal Military Police is tasked to carry out an investigation of a serious case, such as a murder, rape or a breach of the Official Secrets Act, the Bill proposes that the report of the SIB should go to the Army Prosecuting Authority, whereas currently that report goes to the commanding officer. If this change is made, even should there be a requirement that the commanding officer is kept informed of the progress of the investigation, it still represents a chipping away at his authority. It would be vastly better to avoid this tinkering and maintain the status quo. A list of offences means that the commanding officer could be obliged to refer to the APA those of a certain level of seriousness. We are assured by the Minister that regulations will set out that the commanding officer will be informed but the main channel of communication is to be between the SIB and the APA. So one can envisage a situation where a sergeant investigates a case and reports on it to a captain prosecutor, but there is a risk that the commanding officer, a lieutenant colonel, is missed out of the chain. This must be wrong. The commanding officer must be able to put the operational and command perspective and his experience—which will in almost every case be considerably greater than that of either the investigator or the prosecutor—into the equation. For the Government to say that the issue of informing the commanding officer will be dealt with in secondary legislation misses the point entirely. I reiterate that the centrality of the commanding officer is crucial. I understand that the drafters have resisted change because they say that the matter is of no consequence. But that is wrong. It is absolutely critical to the position of the commanding officer, whose authority will be undermined if the Bill proceeds as it stands. We are told that the concern is that if it is on the face of the Bill that the commanding officer is to be informed and the investigator then fails to inform him, that would risk the whole case. But this is a fundamental point—it should risk the case. It would be an injustice to the soldier and, indeed, to the victim of an alleged murder or rape, for the commanding officer not to be informed, because if he had been informed he may have been able—because of his greater experience and specific knowledge of the context of the alleged offence—to have highlighted facts that would otherwise not have come out until much later in the case, thereby avoiding delay in the achievement of justice and unnecessary cost. It might be argued that currently if a commanding officer receives a report on one of his soldiers in which it appears that that soldier has committed a serious offence, he has a conflict of interest between his duty of care to his soldier and his obligation to enforce justice. However, under the status quo before enactment of the Bill, he has had to bring a balance to the situation. If the Bill is enacted as it stands, the danger is that, being relieved of his responsibility to see justice done impartially, he will feel forced by the fact that his only duty is that of care to the accused soldier and to take the side of that soldier to the detriment of justice. There is a modern assumption that conflicts of interest are always bad and to be avoided at all costs. But we face conflicts of interests every day of our lives. Any of your Lordships who served in the other place as a constituency MP, merely by accepting a party Whip also accepted the potential for a conflict of interest. Your duty was to vote with your party when required to do so by your Whip; equally your duty was to your constituents. Sometimes—rarely, one hopes—those interests could be in conflict. You could not avoid that conflict; you had to accept responsibility for your actions. It is similar in this situation. To remove this part of the commanding officer’s responsibility will remove a key element of his authority. I turn now to another area in the Bill where I see the commanding officer being undermined—that is, in the creation of a military complaints commissioner. The problem, of course, is that young soldiers do not make complaints. The argument of those behind the concept of a complaints commissioner is that the reason young soldiers historically have not complained is because complaints have had to go up the chain of command, and if your complaint is about your corporal—your immediate boss—you naturally fear that he will suppress it and, worse still, make your life hell. But the Army has done something about this. It has, for instance, set up a text line for soldiers to make complaints which go direct to the commanding officer. But no one has complained. Do we suppose that they will complain to a military complaints commissioner either? Of course they will not. What is needed is to make the chain of command work better, rather than to change the system. The commanding officer is there to be complained to. Soldiers need to be encouraged to direct their complaints to him. The Army agrees that there does need to be transparency, so it has set up an independent reviewer to look at processes and propose improvements. To jump the gun by introducing a new appointment will achieve little, if anything, but it will further undermine the centrality of the commanding officer. There are other areas in the Bill on which I would like to have commented, particularly on the need for the Director of Service Prosecutions and prosecutors to have military experience and on the process of review, but in view of time constraints, I will leave them on one side today and reserve the right, if I may, to comment in Committee.