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Armed Forces Bill

moved AmendmentNo. 91: Before Clause 118, insert the following new clause- ““MODE OF TRIAL (1) The Attorney General may apply to the High Court for a trial in a civilian court of a person subject to service law on a charge of- (a) murder, (b) manslaughter, (c) an offence under the Geneva Conventions Act 1957(c. 52), alleged to have been committed by that person when on active service in operational circumstances and which otherwise could be tried by the Court Martial. (2) In making an application under subsection (1) the Attorney General must set out the grounds on which the application is being made, and shall provide the person in respect of whom the application is being made with reasonable notice to enable that person to object to the application. (3) When an application is made under subsection (1) the High Court may- (a) grant the application, but only if it is satisfied that- (i) it would be in the public interest to do so, and (ii) there is a realistic prospect that a jury duly directed could properly deliver a guilty verdict, (b) adjourn the hearing until it is satisfied that the conditions in paragraph (a)(i) and (ii) are satisfied, and in so doing it may give such directions as it deems appropriate, or (c) reject the application. (4) The Attorney General may only institute proceedings in a civilian court against a person subject to service law on a charge under subsection (1)(a) to (c) which otherwise could be tried by the Court Martial if he has made an application to the High Court which has been granted in accordance with subsections (1) to (3). (5) The Director of Service Prosecutions may not bring a charge for trial in a civilian court of a person subject to service law of an offence other than those in subsection (1)(a) to (c) unless the person has been given an opportunity to make representations to the Director in accordance with regulations made by the Secretary of State.”” The noble Lord said: This is a probing amendment. I speak also to Amendment No. 208, which is consequential. I am very grateful to the noble Lord, Lord Drayson, who took a lot of trouble and laid on an informal meeting to try to resolve a little local difficulty that arose on Second Reading. I am also grateful for his letter, a long exposition that I received only this morning. Fortunately, by chance I met the noble and learned Lord, Lord Goldsmith, in the Guards Chapel and we agreed that he was the gatekeeper to the citadel, as it were, and would speak to the matter tonight. I am grateful to the noble and learned Lord for that. I say at the outset that it is accepted that the Trooper Williams fiasco cannot be repeated, as this Bill removes the power of a commanding officer to dismiss a charge without any form of hearing and before consideration of the SPA. Further, an amendment has been tabled to provide that the senior service police shall inform the commanding officer when a serious case is referred to the Director of Service Prosecutions. It is also accepted that only in exceptional circumstances will cases be heard in the civil jurisdiction. So we have made a lot of progress under the construction of the Bill. But the process under which resort to the civil jurisdiction is sought and granted by the Attorney-General by ordinance ex cathedra in the exercise of absolute discretion without notice, means of objection or reasons, which may not be challenged in any court of law, remains in the Bill. There was some discussion about that on Second Reading but, as I see it, and as I think the noble and learned Lord, Lord Goldsmith, sees it, it is in the Bill. It is not removed. It may be qualified only by statute as proposed by this amendment. The object of the amendment is to seek to ensure that this administrative decision is exercised fairly according to the tenets of natural justice within the law, in the interests of the service and to alleviate the concern of noble and gallant Lords. Their main concern is with the cases of murder, manslaughter and breach of international convention—which is of particular importance to the noble and gallant Lord, Lord Boyce, who spoke about it. The concern is as to the deprivation of the legitimate expectation of trial by court martial—of which there was some discussion previously today—and to its the effect on the integrity and authority of the chain of command and on morale and discipline. This amendment is a measure of safeguard and would wholly alleviate that concern. The High Court would decide whether there was a realistic prospect of conviction and whether it was in the public interest that the trial should take place under the civil jurisdiction. The noble and gallant Lord, Lord Bramall, made it plain to me that this safeguard of the High Court would remove and wholly alleviate any concern of noble and gallant Lords. The opinion of the Crown Prosecution Service, if sought, would no longer be relied upon, and the rules of procedure of the High Court would apply as to any other application for leave. In all other cases the rules of procedure under the Bill would provide for notice of the substance of the grounds on which the decision to ordain trial under the civil jurisdiction was made and would afford means of objection. That is in accordance with the fundamental concept of natural justice and is as referred to by the noble and learned Lord, Lord Mackay of Clashfern, on a previous occasion. I do not want to take up much time. It is accepted that it is not the purpose or the province of the judiciary to decide whether a person should be prosecuted unless there is an abuse of process. The question arising here is not whether the serviceman should be prosecuted, but under which jurisdiction and whether it should be under the civil jurisdiction or by court martial. The application of the Attorney-General to the High Court for leave to proceed under the civil jurisdiction is not to seek a prosecution. The Attorney-General is answerable to Parliament for the conduct of his functions, but as yet he is not, and perhaps never will be, answerable to the court of law for compliance with the law in the discharge of his functions in accordance with natural justice. It may be that some undertaking could be given to Parliament. What should be done? That is a matter for your Lordships. What is the view of my noble and learned friends and other noble and learned Lords who have served as Attorney-General? What should be the response of the noble and learned Lord, Lord Goldsmith? I think I know the response of my noble friend Lord Kingsland; he is not madly enthusiastic about this exercise, putting it mildly. But it is not a matter for any one person; it is a matter for the consideration of the Committee. I am not seeking it today; and unless I have a measure of some support I may well not seek it again. I beg to move.