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Armed Forces Bill

I have been named by my noble friend Lord Campbell of Alloway as one Member of your Lordships’ House who will not support the amendment. I freely admit that that is the case. It is not that I in any way decry the ingenuity that lies behind the drafting. It is a characteristically ingenious amendment and there are circumstances in which it would be welcome; but I am opposed to it for a number of reasons. The first of those is that given by my noble and learned friend Lord Mayhew of Twysden. The constitutional position is that the Attorney-General is accountable to Parliament, not for the substance of his decisions, but for the way in which he makes his decisions, for his independence and for the probity that he brings to bear on his decisions. He is not accountable for the decision itself. That is a responsibility that our constitution gives to him alone. It is not right that even a towering figure in our nation such as the Lord Chief Justice or another senior judge should be in a position to second guess that decision. The noble and learned Lord, Lord Mayhew, raised a related issue: what about the legitimate expectation of the serviceman himself? If such a serviceman had sat in the Gallery this afternoon, he would have heard the Minister underpin the Government’s approach to the Bill as one that integrated service disciplinarylaw with criminal law. It provides, as the noble Lord, Lord Drayson, said on a number of occasions, a comprehensive legal system. It must follow, as my noble and learned friend said, that a serviceman would have an expectation that if it were alleged that he had committed an offence, he would be tried within the military system; and that if a different decision were made, he should be allowed to have a view about that and to be able to express it. There is something to be said about having that position reflected in the Bill; but, with great respect, it should not be reflected in the way that my noble friend Lord Campbell of Alloway sought. The serviceman should be able to make representations, perhaps to the Attorney-General himself. The other reason why I am not inclined to support my noble friend’s amendment is that it is unnecessary. At Second Reading, the Minister made it crystal clear that, in future, all servicemen who are engaged in operations in circumstances where there is a question over the legality of their behaviour would be prosecuted by the new services prosecutor and that all such prosecutions would be heard by a court martial. The Minister made that statement unequivocally. It follows that the problem raised by the noble Lord, Lord Campbell of Alloway, would not arise. I am confident that the position is now clear and that the logic of the Bill flows from that position. The Bill clearly provides a comprehensive system for criminal law in relation to servicemen. If that is so, we will have a watertight system whereby criminal proceedings would end up in a court martial. We do not need a mechanism to deal with the transfer of cases from the military system to the civilian system, because that is not the Government’s intention.