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Armed Forces Bill

My noble friend beside me has rendered the Committee a signal service in the tenacity and perspicacity with which he has ventilated a matter of considerable anxiety. I do not think that it can really be doubted that in the notorious case concerning Trooper Williams, the Attorney-General’s decision to refer the case to a civilian court caused great surprise. It had not been widely recognised that such a discretion of the Attorney-General existed, and had existed for a considerable time, particularly after a commanding officer had, by virtue of his own decision dismissing a charge, effectively blocked any further proceedings against the defendant on the same charge in the military system. So there was a great deal of surprise. It also attracted much criticism partly because, for Trooper Williams, the decision came out of the blue. He had been, as it were, in lay terms acquitted by the commanding officer, and he thought that that was that. It came out of the blue partly because there was no warning and no opportunity for him to make representations to any authority—the Attorney-General or anyone else—and partly because it was thought that there really ought not in fairness be a second bite of the cherry for the prosecution after the commanding officer had dismissed the charge of murder on military legal advice—advice which, incidentally, was later shown to be sound. So it has been a pretty controversial case, and rightly so, ever since. I agree with Ministers and others with military experience that the effective blocking by a commanding officer of any further proceedings in the military system cannot really be justified. The removal of that possibility is achieved by the Bill. Obviously, there are considerations of conflict of interest that arise in a way that could not really justify the continuance of that arrangement. My noble friend’s amendment raises the interesting and important question of whether the Attorney-General should continue to have sole and unqualified discretion to order that there should be processed in the civilian system and not the military system any charge against a service person of murder, manslaughter or breach of the Geneva Convention. That is a very important issue. I am afraid, and my noble friend knows this, that I cannot go along with him on the proposition that the Attorney-General must first obtain the leave of the High Court, on the terms proposed in the new clause or indeed on any terms. My reason is this. The Attorney-General is the guardian of the public interest under our constitutional arrangements, and in my view much depends on no inroads being made into that doctrine and practice. It may not look as though it can work well, but it does work, has worked and will continue to work well; and I, for my part, do not think that it ought to be disturbed. I can see faces all around me who I suspect are concealing thoughts that go along the lines of, ““Well, he would say that, wouldn’t he? He has been one””. But I do believe that that proposition stands up to the test of practical efficiency and serviceability. There is another difficulty in that the issue that would have to be put to the High Court might properly and probably not entertain a judge. He probably would say, ““This is not justiciable in a court of law; it should be a matter for the discretion of the Attorney-General, who is, rightly, responsible to Parliament””. But that is not the end of the matter, because my noble friend has done an important service—he has highlighted the unsatisfactory character of a power to direct a civilian trial without affording to the accused any opportunity to make representations on the matter. A serviceman or servicewoman is in a unique position—we are talking about offences that can be tried only by court martial and for which the accused may well have a legitimate expectation that he will be tried by court martial. I paid attention in our earlier debates in particular to what was said more than once by the noble Lord, Lord Drayson, about the importance in the eyes of the Government of sustaining a separate and comprehensive system of military justice. All of us understand why that is important. Therefore, it may well be envisaged that an accused may have a ““legitimate expectation””—in the language of the law—that he will be tried within that system. Certainly, he may have a proper desire to be tried by court martial and that should be respected, even if the Attorney-General ultimately decides within his constitutional discretion that that desire cannot be met. The way to achieve that is, surely, to require the Attorney, if he is minded to go for a civilian process, to give notice to the servicemen and to tell him that he can make representations on the matter if he so wishes. That is a lacuna in terms of fairness and it can be filled. If my noble friend’s scheme were modified to achieve just that, but no more, I would support it—and I hope that Ministers would do so.