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Armed Forces Bill

My Lords, we have had an excellent debate with contributions of the very highest quality. I have listened carefully to them and to all that has been said this afternoon. I will further reflect deeply on the contributions. I am very grateful for the very constructive tone of the debate, reflecting as I think it does the intention of the whole House to create the best Bill we can, to provide the clarity and the fairness that have been described and that our Armed Forces deserve. I have heard this afternoon a number of interesting new ideas for improvement, which we will consider carefully. I will now attempt at high speed, if I may, to respond to the many points that have been made. I am grateful to my excellent Bill team for the support that they have given me in this. Before I go into the detail, however, I should like to respond immediately to the points made by the noble Lord, Lord Kingsland, and in particular by the noble Lord, Lord De Mauley, about the absolutely central role of the commanding officer and the importance of ensuring that nothing we do in the Bill undermines the chain of command. That is central to what the team working on the Bill seeks to achieve. The noble Lord, Lord Kingsland, spoke of the commanding officer being ““intimately involved”” in this process—a useful phrase—and of the importance of the operational context being brought to bear throughout the process. We believe that we are bringing forward a Bill that significantly strengthens that process in a number of regards. The noble Lord, Lord Thomas of Gresford, said that he felt that the independent complaints commissioner had insufficient powers. I do not agree. The commissioner would have statutory powers to receive a complaint or allegation from a service person. He would receive a report on the outcome. He reports and has direct access to Ministers and will publish an annual report on the outcome. Those are not insignificant powers. The noble Lord, Lord Garden, asked whether we have had a response from Nicholas Blake QC to our government response to his excellent review. We have, and he published it on his website last night. In it he particularly welcomes the decision to create a service complaints commissioner with powers of access to the Minister directly to raise issues of concern as well as to report annually, as I said. I think that he commented quite positively on the progress that the Government made in their response to his review. The noble Lord, Lord Astor of Hever, asked why the commissioner is not embodied within the military system and why it is in the criminal justice Bill. I believe that the noble Lord has drawn together two separate points, the first on the inspection of the military justice system—the police and prosecution and so on. Where we propose to make arrangements with the new combined inspectorate proposed under the Police and Justice Bill, we will agree terms for those inspections with the new inspectorate and that will provide professional external assurance of our institutions. Secondly, on oversight of the military complaints system, we propose a service complaints commissioner who will be independent of the chain of command but report to defence Ministers. He will therefore be part of the military complaints system and have a statutory role to play within it. The noble Lord, Lord Thomas of Gresford, raised the issue of courts martial not being involved in the prosecution of civilian offences. I do not agree with him on this. A criminal offence can have significant disciplinary implications. For example, a soldier who steals from a colleague is as much a disciplinary matter as a criminal matter. Moreover, if a serviceman commits a criminal offence overseas and cannot be tried by military court, he is at risk of prosecution in a local criminal justice system and that could be very objectionable to us. Or the offender could escape justice entirely, which would not be acceptable to us or to the Armed Forces. Many noble Lords, and a number of noble and gallant Lords, have raised significant concerns about delays. That was the central part of my opening statement. We share that concern and have taken considerable trouble to consider how we can make improvements. I note the interesting suggestion made by the noble Lord, Lord Astor, on a time limit. I look forward to seeing the terms of the amendment. I make one point that I think we should reflect on. Experience shows us that, when there is pressure to bring a prosecution quickly, that can make it more likely that an unfair prosecution will result. We absolutely agree, however, that this system must be made as efficient as possible, and we have made important changes in the Bill to do that. I have specifically mentioned two changes, the first of which is the requirement for commanding officers to promptly bring in the service police in serious cases. Secondly and more importantly, the Bill allows the service police in serious cases to go directly to the prosecuting authority for a decision on the charge. At the moment, the police must go first to the commanding officer with a charge; then the commanding officer refers the case to the higher authority for further consideration; then it refers the case on. So we believe that this will provide a faster process, which is important. A number of noble Lords have commented on the structure of courts martial and whether persons should be tried by members of their own service. I note in particular the deep experience of noble and gallant Lords on this matter. We have heard from a number of them—the noble and gallant Lord, Lord Boyce, in particular. I commented on this in my opening statement, but I am happy to give further reassurance and repeat that we expect that, in the main, service personnel will be tried by courts comprising members of their own service. The noble and gallant Lord, Lord Bramall, asked whether, where it was clear that a shooting was lawful, the Bill requires a police investigation. I hope that the Bill is clear on this point. In a case where a shooting is clearly lawful, there will be no requirement for a police investigation. That requirement will arise if allegations or circumstances would indicate to a reasonable person that one of the serious offences listed in the Bill may have been committed. A central area of the debate this afternoon has been the role of the Director of Service Prosecutions. The noble and learned Lord, Lord Mayhew, raised this, and my noble friend Lady Dean reflected on the concerns that she had. A number of noble and gallant Lords also raised it, and I know that there is real concern about this area. Some noble Lords have asked for the Bill to require that the person appointed to be the DSP should have service experience, be a serving officer or have uniformed service experience. As many noble Lords are aware, one difficulty in putting this in the Bill is in defining what we mean by ““service experience””. Nevertheless, my right honourable friend the Secretary of State, in commenting on this, has expressed our view of the deep importance of service experience in this area. Overarching that is the need to make sure that we get absolutely the best person for the job. We believe that the qualifications of candidates would be a much better way of narrowing down what sort of experience we are talking about. We feel that this would be achieved most effectively through the selection process rather than in primary legislation. The Select Committee in the other place recognised that it would be difficult to put this in the Bill. To reflect a little longer on the question of whether the individual should have uniformed service experience, while we believe that a long and distinguished uniformed and legal career might provide an ideal Director of Service Prosecutions, we would not want a short career in uniform, perhaps at a junior level and with no operational experience, to give a candidate an advantage over someone better qualified in other respects, which could prevent us from getting the best man for the job. The noble and learned Lord, Lord Mayhew, raised the point relating to legal officers—