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Armed Forces Bill

My Lords, I know that the Minister will agree with me when I say how lucky we are as a nation to have a House of Parliament which boasts no fewer than six former Chiefs of the General Staff to contribute to a debate such as this. I hope that he will also agree that the signals that we have received from them have been remarkably similar in both content and tone. Unlike most noble and gallant Lords and noble Lords, I have only just become involved in the Bill. Therefore, I have not been able to observe at first hand what all other noble Lords have observed: that is, how helpful the Minister has been in the run-up to this debate. I find the hearsay evidence very powerful, however, and on that basis, I, too, thank the noble Lord for such co-operation. I was particularly interested in a paragraph that the Minister read in the early phases of his contribution this afternoon. It was about both investigations and tribunals. The noble Lord said, ““Any decision to prosecute for a serious offence should be taken by an independent prosecutor with an understanding of the service context””. I pause there to ask the Minister—he need only nod or otherwise—whether, in saying that, he was referring to the future Director of Service Prosecutions. He nods. I am most grateful to him. The noble Lord then went on to say, ““and any trial of such an offence should be before an impartial tribunal, comprising serving members of the Armed Forces with an independent judge””. There, I take it, as the Minister, in effect, says so in terms, that he is indicating the courts martial tribunal. Many noble and noble and gallant Lords have emphasised how important it is for the services to have a distinct system of military justice because of the special factors that inform combat circumstances. I conclude from the Minister’s statement that, in future, all operations issues that give rise to possible legal proceedings will be investigated solely by the military police and the director of service prosecutions; and if it is decided to prosecute, that prosecution will take place solely in front of a court martial. That seems to be the ineluctable logic of what the Minister has said. I received the statement with great pleasure. It seems to relieve my noble friend Lord Campbell of Alloway of his task of promoting his amendment in Committee because his amendment refers to circumstances that appear now never likely, or, indeed, possible, to arise again: where the Attorney-General requires or asks for cases to be referred from the military prosecutor to the civilian prosecutor or from a military tribunal to a domestic tribunal. It appears that the Government have accepted the logic of the argument, which has been pursued from all parts of the House in a number of debates in the past 12 months, that it is wholly inappropriate, indeed, constitutionally improper, for a proceeding that begins in the military context to be shifted to the civilian context. I was also struck by what the Minister said about delay. He said that, at worst, delay undermines operational effectiveness by damaging morale and unit cohesion. We must be rigorous in addressing it. We all wholly endorse that statement by the Minister. I recall particularly the words of the noble and gallant Lord, Lord Craig of Radley, when he said that unresolved issues have an adverse impact on morale. That is not just the morale of the individual serviceman but the morale of the unit in which the serviceman serves; because, to draw the kernel of the speech that my noble friend Lord De Mauley, made to your Lordships’ House, if other members of that unit see that the soldier is being hung out to dry they will wonder what will happen to them if, by any chance, they are in a similar set of circumstances. If the situation is not addressed, we will see the crumbling of great regiments.       I was a little concerned that the Minister did not go on to consider the problem of delay in terms. One of the most serious aspects of delay is the conduct of military investigations. There is nothing in the Bill that seems to help. Why is there such delay in the investigations by the military police; is it that there are not enough of them? Is it some defect in their training? Is it that they lack the quality that the civilian police have? Or is it that they lack the authority within the army structure? Or is it a mixture of all of those? It seems to me that we will never get to grips with the problem of delay until we get to grips with the way in which the investigations are conducted. I wholly agree once more with the noble and gallant Lord, Lord Craig of Radley, that there must be an end to this sooner rather than later; because the Armed Services have to get on with the job that they are employed to do, which is defending the security of this country. There is also another aspect of delay, which came out forcibly in the Trooper Williams case. During the long delays, in intolerable circumstances, that Trooper Williams suffered, he apparently received little support from the Ministry of Defence. I derive that information from a note written by General Sir Anthony Walker, a man under whom I had the honour to serve as a reserve officer when he commanded the Third Armoured Division in Germany. I have no reason to believe that the following statement that he has made in this note is anything other than absolutely true:"““At an early stage it became apparent that Trooper Williams was going to find no champion within the MoD and indeed there seemed to be a desire among senior officers to distance themselves from the case. There was a qualitative difference between the reactions to this case within the MoD and the reactions within the Metropolitan Police to the Stanley case””." This is the difficulty with taking a case out of the regimental context. Every solider knows that if a matter is within the power of his commanding officer, his commanding officer will look after him. But once the issue goes beyond the regiment, who is going to look after him? If it is not the Ministry of Defence, no one is going to look after him. It is absolutely crucial—and I hope that the Minister will address this point in his winding-up speech—that soldiers who are going to be prosecuted in front of the court martial in circumstances where the commanding officer appears to be being sidelined by the legislation are looked after properly by the Ministry of Defence during the whole of the proceedings. That is not only what he would expect but what all his regimental colleagues would expect. It goes to the heart of all the concerns that have been expressed by noble Lords and noble and gallant Lords about the way in which the commanding officer has been treated in the legislation. We feel strongly that rules of engagement should take statutory form. The rules of engagement in effect are likely to determine whether a soldier has committed an offence. They therefore define the criminal law; they define the scope of the crime, the boundary between what one can and cannot do. The Human Rights Act, which has been much talked about today, makes reference to Article 7 of the human rights convention, which requires that, if someone is going to be prosecuted for a crime, the nature of that crime must be clear to them before they undertake the activity that leads to its breach. If I am right about the rules of engagement defining the scope of the crime, Article 7 of the convention on human rights requires that they are part of the criminal law. It must follow, therefore, that the rules of engagement must take statutory form. We will certainly be tabling such an amendment in Committee. However, there is another ingredient in combat issues: the surrounding circumstances. One of the most important issues in surrounding circumstances is the orders that are given by both the commanding officer and the junior officers to the various men under their command. In specific situations, on a daily or even hourly basis, fresh orders are issued down the line. Those orders will have a bearing on the way in which the rules of engagement are applied in specific circumstances. If a soldier is going to be investigated, and perhaps prosecuted, for an operational offence, it is vital that the investigation authorities and the prosecuting authorities know everything that there is to know about the way in which the rules of engagement were interpreted by the commanders in that unit in those particular circumstances. If I am right about that, it would be deeply unfair to the soldiers who are under investigation not to have, freely available to their case, as accurate an account as possible about the way in which these orders were given. Who else but the commanding officer can provide that evidence—and his subordinate officers? So I entirely endorse everything that all noble and gallant Lords have said about the importance of engaging the commanding officer, intimately, in the whole process of investigation by the prosecution. The noble and gallant Lord, Lord Boyce, went into this matter in more detail than any other noble and gallant Lord, but all noble and gallant Lords dealt with it impressively. The noble and gallant Lord, Lord Boyce, referred, in terms, to the operational context in which the offence occurred to underline how important the engagement of the commanding officer is in the whole prosecutorial process. I prefer the solution offered by my noble friend Lord De Mauley that the commanding officer should be fundamentally responsible for all prosecutions but that it should be recognised that those of a certain seriousness would be passed up the line by him. That is the best solution. But whichever solution we chose, it is vital that the commanding officer’s role is factored in, I repeat, intimately, at every stage. The noble Viscount, Lord Slim, said that if he were an Attorney-General he would want his DSP to have military experience. If I may respectfully say so, of the many ways in which the noble and gallant Lords and noble Lords have formulated their support for the DSP having military experience, the way in which the noble Viscount expressed it was the most penetrating. There are very few politicians nowadays in another place and sadly, even in your Lordships’ House, apart from those who have spoken today, who have the kind of military experience that is required if a mature decision about prosecution is to be made. So, a fortiori, if the supervisor has no military experience, it is very important that the senior member of the prosecuting authority has. That is another amendment that we shall table in Committee. The noble Lord, Lord Ramsbotham, is not it in his place, but I endorse two matters that he raised, among a number of others. First, he said that the Army needs to reinstate the position of director of Army publicity. It seems ludicrous to get rid of the role of military officers in this sphere and to fill it with civilians. It would certainly not cost more if the role were played by the military and it would also give those who serve more confidence; and, to use the words of the noble Lord, it would be the best way in which to protect and project the image of the Armed Forces. I also respectfully agree with his observation, which I think is shared by most noble and gallant Lords and noble Lords, that apart from the independent judge, the members of the court martial tribunal for army matters should all be from the Army. The noble Baroness, Lady Dean, made a very important point about secondary legislation when she said that we do not know enough about what will be in it. She was right in saying that we would like to see either in Committee or on Report drafts of the more important regulations, which will enable us to inform ourselves about the more important aspects of matters to which at the moment we are totally blind. One issue that I had not thought about before today’s debate, but which we should think about in Committee, concerns the composition of tribunals. I refer to the composition not in terms of from which branch of the services members come but of the number of members of the tribunal and who selects them. As I understand it at the moment, they are selected by the court administrative officer. The noble Lord, Lord Thomas of Gresford, will be particularly helpful when reflecting on this issue in Committee because he has great experience in this kind of litigation. In particular, I believe that we should think about majority decisions. Is it right, given the fact that in a jury trial, if the majority is less than 10 to two, there is no conviction, that in a court martial a conviction can be obtained by four to three, three to two or five to four? That does not sound right to me. I should have thought that one should have a larger majority to meet the requirements of the human rights convention, to which the noble Lord, Lord Borrie, referred on so many occasions. It is appropriate that we should address the issue. The question of majorities in a jury trial goes to the root of what a jury trial is about. Should it not go to the root of court martial trials as well? I do not have any preconceptions about this, but I feel that this is an issue that your Lordships should confront. I should have thought that a majority of four to three or five to four was far too narrow; that you needed a much more convincing majority to convict in front of a military tribunal. That is a matter to which very few of us have given much thought, and we should think about it between now and Committee. Having said all this, I congratulate the Minister on having delivered the Bill in the condition that he has delivered it to your Lordships’ House. This immense document has obviously involved a huge amount of work and I am in absolutely no doubt that it has been informed by the Minister’s sincerity.