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Armed Forces Bill

My Lords, I am grateful to the noble Lord. There absolutely are parameters. Our difficulty is in finding the best way to define this and to give comfort to people that a service context will be provided to the prosecuting authority. We will listen to the points that have been made this afternoon, because this is a difficult area. All our Army Legal Services officers have operational experience. All Army Legal Services officers undergo at least three months’ attachment with a ““teeth arms”” unit, and many serve with those units on operations in Afghanistan and Iraq. Serving lawyers may indeed fill the post of the Director of Service Prosecutions; they are not excluded. We want simply to ensure that the director is the best person for the job. That could be, for example, a recently retired officer, or it could be a barrister who has served in the Territorial Army. The noble Lord, Lord Thomas of Gresford, raised further points relating to the prosecution of civilians under the Bill—in particular, the Martin case. Service jurisdiction operates over two main groups of civilians outside the United Kingdom: first, over members of service families; and, secondly, over civil servants and contractors working with the services, especially on operations. That is an important aspect of the way in which we work in the current environment. Having a service jurisdiction does two things: first, it ensures that crimes committed by such civilians, whether against service personnel or local people, are dealt with; and, secondly, it ensures that they are dealt with by an ECHR-compliant system. We must bear in mind the fact that such systems are not always available in countries where our forces are operating. At the same time, the Bill facilitates the wider use abroad of the service civilian court, which has powers equivalent to those of magistrates’ courts in England and Wales. The noble Lord, Lord Roper, and the noble and gallant Lord, Lord Boyce, spoke of the challenge posed by the implementation timetable of the Bill. That is a good point, of which we are very much aware. We aim to implement the Bill by the end of 2008; it is a large undertaking and we want to avoid the two extremes of trickling change over two years and making a single change so great that it is unmanageable. We are looking carefully at planning the implementation process and the matter is at the front and centre of our concerns. The noble and gallant Lord, Lord Vincent, asked who assesses the performance of the prosecuting authority. The service prosecuting authorities are independent of the chain of command and MoD Ministers. Regarding the new prosecuting authority, we announced yesterday that we will look to the extension of the role of the inspectorate that is under consideration in the Police and Justice Bill before your Lordships’ House. My noble friend Lady Dean asked how commanding officers will be kept in the loop. The regulations under the Bill will require the service police to keep the commanding officer informed at specific times. That already happens. They will inform the commanding officer when a case is passed to the Director of Service Prosecutions, but, crucially, the commanding officer will be able to pass any information that he or she thinks is relevant to the offence, including any operational context, to the director before any charge is considered. This is a new and important improvement. Further, what other proposals are there with regard to notifying commanding officers of the conduct of investigations in ensuring that the commanding officer can provide that relevant information? We need to recognise that, if there are allegations that a soldier has acted outside the law, the service police and prosecuting authorities will seek to take into account the operational context in which the incident occurred. The commanding officer will be central to that; he needs to be an intimate part of the process. The noble Lord, Lord Astor of Hever, said that he believed that some of our service personnel are afraid to open fire, and he referred to a survey conducted among the 7th Armoured Brigade. That is not a view that is shared by operational commanders and the Land Warfare Centre, which is responsible for rules of engagement training. I can do no better than to quote Brigadier Lorimer, who ordered the successful rescue of two soldiers held in an Iraqi police station. He said that his men knew that they could,"““take a life to save a life””." The shooting investigation policy now in place in Iraq allows commanding officers to decide when their soldiers should be investigated by service police and has their strong support. The provisions in the Bill are consistent with that. Perhaps the most important point is that no prosecutions have arisen from firefights. The noble Viscount, Lord Slim, very effectively described his concerns regarding the rules of engagement. I assure him that mission-specific training for personnel deployed on operations takes full account of their mission and the threat that they face. That is kept under review to ensure that the personnel have the confidence to use legal force when required. I would be happy to provide a separate briefing to those Members of the House who would be interested in spending more time getting to understand the modern process for rules of engagement. The noble Lord, Lord Campbell of Alloway, raised the issues of the maintenance of discipline being the priority in sentencing and of sentencing taking into account operational stress factors. A number of matters would be relevant to sentencing and these have been set out in Clause 236, which includes the maintenance of discipline, as well as the punishment of offenders, the protection of the public etc. The military context generally, including operational stresses, will be a matter that can be raised in mitigation. Where relevant, they will be taken into account by courts. The concern about the role of commanding officers and, in detail, the position of the commanding officer when police investigate Schedule 2 and prescribed offences has been raised by a number of noble Lords. We will provide in the regulations that the police must inform the commanding officer of the investigations—in a moment, I will come on to the process of sharing with the House regulations in draft. These regulations will also provide that the commanding officer may provide information to the police and the prosecuting authority before any decision is taken on whether to charge. It is important that we have an opportunity for the House to review these regulations as part of the progress of the Bill. We recognise the central importance of that. My noble friend Lord Dubs raised the difficult issue of pardons for First World War soldiers. I remember this being raised by my noble friend as an oral Question and I appreciate the strong feeling in the House on this matter, which I have communicated to the department and to my right honourable friend the Secretary of State. In the light of the case of Private Harry Farr and the important issues that arise from this area of policy, my right honourable friend the Secretary of State is considering the subject as a matter of priority. He has asked officials to make the history of past policy decisions available to him. There is clearly a link between our response to the Irish Government’s report and the outcome of the case of Private Farr. Until the outcome of the case is known, and has been considered and discussed with the Irish Government, no final response will be made to the Irish Government on their report. However, my right honourable friend has asked me to inform the House that he is considering all the options and is aware of the strong feelings of the House on this matter. The noble and gallant Lord, Lord Inge, the noble Viscount, Lord Slim, and the noble and gallant Lord, Lord Boyce, raised the issue of the abolition of review, and particularly the point that the Army were not happy about that. I hope that I dealt with this in my opening speech. I know that some in the services regret the abolition of the review, but we must recognise that the courts martial are compliant courts. We do not need and should not have non-judicial interference in their decisions. The review involves no hearing and no opportunity for the victim—who could be a serviceman or servicewoman—to be heard.