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Armed Forces Bill

I shall begin with Amendments Nos. 117, 118 and 119 relating to Clause 154. Having listened to the arguments made by noble Lords in support of these amendments, I accept that there may be benefits in stipulating the minimum and maximum numbers of lay members who may sit at a court martial. I am clear, for example, that there would never be fewer than three members of a court martial, excluding the Judge Advocate, but I need to look at the implications of putting that on the face of the Bill. I will review the wording and, if I can, I shall bring forward an amendment on Report. Amendment No. 122, which goes to Clause 154, requires those who are chosen to act as lay members to be selected by a ballot system. I assume that the purpose of the amendment is to ensure that each member is randomly selected. This amendment is unnecessary because each service has a broadly similar system for selecting lay members that embrace the principle of random selection. That random selection produces a pool of qualified personnel from which court administration officers appoint members unless they are ineligible. Personnel who are serving on operational tours are not selected. Under the Bill, the intention is to continue to select personnel in a similar manner. Setting out a requirement for a balloting system on the face of the legislation might place an unnecessary burden on the system or create unfairness. There must be flexibility in the methods of appointing court members in order to take into account their services’ organisational and operational requirements. The main effect of Amendment No. 120 toClause 154 and Amendment No. 128—the new clause—appear to be that persons of any rank would be qualified to act as lay members of the court martial. This amendment would not be welcomed by the services. Operational effectiveness underpins the military justice system. We think that court-martial members must have sufficient service experience, which includes having experience of commanding others. Those below the rank of warrant officer or newly commissioned officers will not always have this experience. Clause 155 in the current Bill was drafted on that basis. On the issue of personnel from different services on courts martial, it is possible that this new clause after Clause 156 also seeks to ensure that the lay members of the court always comprise of personnel from different services. The current wording of the Bill already allows for this. However, in most cases it is intended that the defendant will appear before a court made up of personnel from his own service. This was the preference of the First Sea Lord and the Chief of the General Staff who in their evidence to the Select Committee said that there should be a presumption for a single service board unless there is a good reason for a mixed board to be appointed—for example, when defendants from different services are tried together. Amendment No. 121 is, with respect to the noble Lord, unnecessary. Service personnel appointed to act as court members are currently drawn from all parts of their respective services. That will continue under the Bill. I believe that this matter is better dealt with in guidance. Amendments Nos. 123, 124 and 125 go to Clause 155. I have talked about eligibility for membership of the court martial and I will not go further on that matter. In responding to the points made by the noble Earl, Lord Attlee, and the noble Lord, Lord Garden, relating to continuous or aggregate service, it may be useful for me to state that we believe that a person who has been an officer for three years has considerable command experience, and we do not believe that he will lose this simply because he has a break in that experience. Amendments Nos. 126 and 127 to Clause 156 are unnecessary. As I have explained when dealing with Amendment No. 122, the services have three separate but broadly similar systems for selecting lay members which embrace the principle of random selection. Given this selection procedure, although it is not impossible, it is highly improbable that a person would be repeatedly appointed as a member of the court martial within an 18-month period. I understand the background to AmendmentNo. 129, but, as I said in my response to the chairman of the Joint Committee on Human Rights, we do not think it necessary or appropriate to take one element of the system—that relating to reporting procedures—and deal with it in legislation. What we have to ensure is that in practice all aspects of the system provide the necessary guarantees and impartiality including, as now, a prohibition on all reporting on the performance of the relevant participants. It is not necessary to make provision to this effect in the Bill. As with the decisions of jury members and others required to decide on the guilt of those accused of offences, the decisions of the members of the court martial should remain confidential. Currently, all members of a court swear under oath at the start of the trial not to disclose the vote or opinion of any of the members unless required through some legal obligation. Additionally the judge advocate reminds the members of their duty in this respect at the end of the hearing. It is intended that the same practices will continue at the court martial under the Bill. I deal next with Amendment No. 130 tabled in respect of Clause 159. The part of the amendment which prevents decisions being made on the basis of a simple majority is unnecessary. I have listened carefully to the arguments made by the noble Lord, Lord Thomas of Gresford, and his helpful description of the US system. I have also noted carefully the point he made about the fact that magistrates are trained. I will reflect on that, but we believe that the amendment is unnecessary. As he described, a summary trial in the magistrates’ courts may be decided on the basis of a simple majority and most of the cases tried by the courts martial are akin to magistrates' courts trials, but I take on board his point about magistrates being trained. I will go away and reflect on that. With his experience, I am sure that the noble Lord is quite aware that many other jurisdictions allow simple majority verdicts, so I shall not labour that point here. I think that it is fair to say that there is nothing irregular or unsafe about a decision based on a simple majority vote system. Equally, we believe that it is unnecessary to require that a period of time must have elapsed before a decision based on a non-unanimous vote of members can be accepted. We believe that the proposal that the president should be required to state in open court the number of those who did not believe the accused to be guilty is inappropriate. As I said, the decisions of courts martial must be confidential. Disclosing those details would not be in the interests of justice, as that might influence the decisions of courts martial members, even if the identity of those dissenting or agreeing to the guilty verdict was not revealed. I turn to Amendment No. 131, and take on board the point made by the noble Lord, Lord Campbell of Alloway, about the structure with reference to Amendment No. 132. Focusing on Amendment No. 131, forthe reasons that I gave about the amendment toClause 159, it would be inappropriate to introduce a provision of this type. Again, I underline that we believe it to be vital that the decisions made by the members of the court martial remain confidential. If members of the court martial knew that the decision that they made might be disclosed, even if only for research purposes, they might be unduly influenced, regardless of whether those researching matters are placed under the same duty of confidentiality as court members. The amendment does not specify which members’ decisions might be the subject of such research, so it might therefore extend to the judge advocate's decisions. It would be highly inappropriate for the decisions made by the judge advocate to be disclosed for such purposes and would not reflect any practice adopted in the civilian criminal justice system.