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I sought to give the hon. Gentleman and his colleagues that assurance, and we did not feel that it was necessary to include it in the Bill. Guidance will be issued and it will set out the role of commanding officers and service police so that everyone is properly informed.

Mr. Jones: I am grateful for that intervention, which clarifies the position. The commanding officer will not be left out of the loop, as has been suggested by the Opposition spokesmen.

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Mr. Brazier: The hon. Gentleman has been generous in giving way, but that simply is not good enough. We have stripped commanding officers of a statutory power and all that has been substituted is a promise of guidance, which is not debated by Parliament and can disappear tomorrow.

Mr. Jones: I do not think that safeguards have been stripped away because, as I have said, we are bolstering and safeguarding the commanding officer’s role. The hon. Member for Aldershot (Mr. Howarth) asserted that the commanding officer would be taken out of the loop completely, but I have tried to emphasise the fact that he will have input, not at court martial, but at an earlier stage when the prosecution is taken forward. My hon. Friend the Member for Islwyn (Mr. Touhig) reminded us of his promise of guidance and, in the spirit of the Bill, the Conservatives were happy that that guidance would be produced.

I do not think for one minute that the commanding officer will be carved out of the process altogether. His role in the submission of evidence is reinforced, ensuring that we do not end up in a situation where evidence comes forward too late and cases go to court that should not do so.

Patrick Mercer: I forgot my manners earlier in failing both to welcome the Under-Secretary and to congratulate him on the excellent start that he has made.

The hon. Member for Rhondda (Chris Bryant) made a powerful speech. He put me firmly in my place by making the point that just because someone has not served in the armed forces, that does not mean that they cannot understand them. I could not agree more—the last thing that I want to do is to try to set myself up as someone who can lecture. All that I can do is bring my rather dated knowledge to bear on our proceedings. I salute the contribution of the hon. Member for North Durham (Mr. Jones), who has spent a great deal of time on armed forces matters without any previous service experience, although I disagree with him. Briefly, clause 116 attacks important relationships at unit level across the three forces. I hope that the Committee will forgive me if I limit my remarks to the Army, because that is where my experience lies. The rank of lieutenant-colonel and its equivalent in the other forces is crucial, as commanding officers have powers at their disposal that are the acme, limit or horizon for the private soldiers, seamen and airmen who serve under them. To attack that relationship is to diminish those powers and take something terribly important away from the way our armed forces are asked to do their business.

7.30 pm

It is worth pausing for a moment to think about the circumstances that surround our armed forces in Iraq. It would seem that it is unique, a new theatre of operations; that counter-insurgency, counter-terrorism, peacekeeping—call it what you will—are something new to our forces; and that this is not conventional war. However, precisely these conditions pertained in the 1960s and early 1970s before the armed forces got heavily involved in Northern Ireland. They were the anvil on which the Army Act 1955 was founded and subsequently amended to work at unit level.

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We have heard about the commanding officers welcoming the proposed changes to the Army Act or to military law generally. That is as may be. I was never faced with very serious crimes committed on active service, but I had some extremely difficult crimes to deal with inside barracks, and I would have loved to be able to say, “Nothing to do with me, youth. You’ve got to go now into the military justice system and I don’t have to make a decision about you, Private So-and-so.” That would have been great; I would have loved it. It would have been a cop-out for me as the commanding officer. But that attacks precisely the relationship between the private soldier and the commanding officer of his unit.

Let us bear in mind what we are talking about. The bulk of kids fighting in Iraq today—they are kids—are aged about 18 and a half or 19. They come, for the most part, from very difficult circumstances. I was interested to hear earlier how the House regards these fine upstanding individuals and their ability to make decisions. They are fine upstanding individuals, but by golly, they come from difficult backgrounds, for the most part. It was my experience that they needed every bit of leadership, guidance and protection that their officers and non-commissioned officers could provide for them.

That is why the regimental sergeant-major, standing outside what we called commanding officer’s orders—in other words, a commanding officer acting as a magistrate inside barracks or on operations—would say to a private soldier, “Are you guilty?”, to which the private soldier would generally say, “Of course I’m guilty. I daren’t say I’m not.” Clearly, that is nonsense. It was up to the commanding officer to say, as a soldier came in front of him to get summary justice, “Look, son, you are now in front of a court of law. Just because you’ve gone through your platoon commander, your company commander and now your commanding officer, that does not mean to say that you are necessarily guilty.”

The private soldier depends on the commanding officer to be his advocate, his leader, his protector. The private soldier who is sleeping for four hours a day in two two-hour bursts, who one minute is being shot at by well-armed terrorists and the next is expected to dish out food aid or whatever to injured and hungry civilians, requires a lieutenant-colonel or his equivalent also to have had four hours sleep that day, also to be operating in conditions of 100ยบ Fahrenheit, and also to be required to carry a 60 or 70 lb set of webbing.

Mr. Simon: I thank the hon. Gentleman for sharing with the House his experience, which is genuinely insightful. I ask this in a spirit of inquiry, rather than as any kind of rhetorical point-scoring. He spoke about a cop-out. Can he explain why the commanding officer must dispense justice, rather than just guarantee it?

Patrick Mercer: That is an extremely good intervention and a fair one. The commanding officer does not always need to dish out justice to the soldier, but he needs to examine rigorously every case before him involving any soldier, sailor or airman under his command. If he does not do so, he is failing the often simple souls who require that officer to give them that protection.

That is what worries me so much about the idea of a service policeman being brought into the equation at
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such an early stage. I reiterate the point that I made to the hon. Member for North Durham. It would be a foolish commanding officer who, in the event of almost anything other than a routine offence, did not quickly get legal advice and call in the Royal Military Police special investigations branch for their guidance.

Mr. Hancock: Hon. Members are right to recognise the hon. Gentleman’s experience and the usefulness of it. Is he suggesting to the Committee that for the type of crimes outlined in schedule 2, a commanding officer would be able to make a judgment, after a police officer—a service officer or a civilian—had had time to investigate the crime? How would the commanding officer have the time and the means to carry out the sort of investigation that would be needed for some of those crimes?

Patrick Mercer: Again, that is an excellent intervention. The Trooper Williams case underlines it.

I take the point that the hon. Member for Portsmouth, North (Sarah McCarthy-Fry) made earlier. As far as Trooper Williams was concerned, the commanding officer was his god. He was his figurehead of leadership, justice and everything that happened inside the 2nd Royal Tank Regiment. If we attack that relationship, two things happen. First, the private soldier, lance-corporal and so on, feels that there is no longer an umbrella of protection given to him by a man whom he knows personally, who, within the constraints of rank, is a personal friend, and who has probably served with his father, his uncle or other people from the same area—Portsmouth, Newark or wherever.

Mr. Kevan Jones: I am still trying to follow the hon. Gentleman’s logic. If, in his experience, to which I defer, and in the experience of his colleagues, in a serious case, the commanding officer would refer to the law and bring in the SIB, what is the problem with what is being proposed?

Patrick Mercer: The problem is simple. The commanding officer must have the power to say, “No. There is no case to answer. I have listened to what the legal authorities have to say, and in my judgment, as commanding officer, this soldier should not be prosecuted. This should go no further.” On the other hand, he may be in a position to say, “Absolutely. This is beyond my powers to deal with.” Ultimately, he must have that sanction; otherwise the measure cuts away at the fundamental relationship between officer and soldier.

Mr. Jones: The hon. Gentleman has just proved my point. Is he suggesting that in a very serious case, the judge and jury, even after a police investigation, should be the commanding officer? I am not sure whether the hon. Gentleman was still a member of the Defence Committee when we considered the Deepcut deaths— but is not the problem that fact that excluding independent oversight at an early stage led to problems later? If the angel commanding officers whom he describes bring in investigators and legal authorities as a matter of course, what is the problem?

Patrick Mercer: Of course commanding officers are no angels. Of course their judgment is faulty. The
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problem will not arise in peacetime circumstances in barracks such as Deepcut, Tidworth and so on. In those circumstances, I agree that there is time for the Royal Military Police and others to be used to the proper extent. On operations there, is no time. On operations, one is driving hard against an enemy. We are not talking about the overthrow of the Third Reich. We are talking about peacekeeping operations, where one minute, one is face to face with the enemy, at bayonet length from the enemy, and the next minute one is trying to dress his wounds and give out food to his wife. It is in those circumstances that the commanding officer must have that sanction, where he can use his judgment. If he does not, the fundamentals are attacked.

On my second point, I ask for the Minister’s earnest consideration. The Army works on the principle of mission command. A commander takes an idea, decides what he wants to do, apportions missions to his subordinates and gives them the necessary resources. Unless the subordinate says that he does not have the necessary resources, the mission is entirely up to the subordinate commander. Part of that, particularly in these circumstances, means that the subordinate commander, in this case a lieutenant-colonel, must have the legal powers to deal with his soldiers in the difficult circumstances posed by places such as Iraq. If the commanding officer cannot deal quickly, effectively and legally with the soldiers under his command, to all intents and purposes a very important strand of tactical doctrine—mission command—is taken away from him.

Sarah McCarthy-Fry: I want to pick up on the hon. Gentleman’s point that Trooper Williams looked to his commanding officer as his god, but the fact remains that he was let down, because he was then put into the civilian system. That is the point that this measure seeks to address. For precisely the reason that the hon. Gentleman gave about civilian judges and juries having no idea what it is like in the heat of battle, that is the last thing that we want our armed forces to have to do, as every soldier, sailor and airman to whom I spoke said. We are not talking about getting leave from barracks; we are talking about very serious offences here. The hon. Gentleman referred to snap decisions, but it is not healthy that snap decisions should be made in such serious cases, which could end up in the civilian courts.

Patrick Mercer: I agree. This sounds like a snap decision, but it is not. It will not be the sort of decision that the commanding officer takes off the cuff. We are not saying that from his tank turret he says, “Yes, Trooper Williams, not guilty. Get out of it.” It does not happen like that and it will never happen like that. I do just wonder though why current practices, particularly on operations, have not been enshrined in the Bill. I believe that Opposition amendments were tabled that would have enshrined what happens at the moment—that the commanding officer, as often as possible, would refer to legal authority. Why cannot such practices be introduced to the Bill, so that the important relationship between private soldier and commanding officer is not attacked?

Mr. Simon: Again in a spirit of genuine inquiry, can the hon. Gentleman give a concrete example of a case
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where this will go wrong? Can he give us an example of what that will look like? So far, it seems nebulous and hard to get hold of.

Patrick Mercer: I cannot, but I will hypothesise. Serving at a generally lower tempo of operations than what is going on inside Iraq, one of the warrant officers, second class, under my command—not, I hasten to add, from my cap badge, but from the Royal Military Police—attempted to murder his interpreter in the Serb republic. As his commanding officer, the case was referred to me. I immediately understood that it was a schedule 2 case, which had to be dealt with. I could not possibly say, in the circumstances, whether I should or should not have dealt with it. I immediately passed that on to the relevant legal authority. Had we been involved in a pursuit of the enemy at that stage, had we been involved in circumstances such as those in Iraq, I would have wanted the power to hand, so that I could reassure the private soldiers and lance-corporals under my command that they would always be protected by someone whom they knew who understood the circumstances.

Mr. Kevan Jones: Is the hon. Gentleman seriously suggesting that if, in the heat of battle, someone under his command shot his interpreter, somehow it would be right for him to have the authority to dismiss that case out of hand without any investigation? I am sorry, I just do not agree with that.

Patrick Mercer: I am afraid that the hon. Gentleman has not quite understood me. What I am saying is that in a high tempo operation, where things go wrong—and they will—the commanding officer must be able to carry out an investigation, take the advice that is to hand and deal with the matter as it faces him. If he does not, it will be very difficult for the private soldier under his command to continue to trust him.

Mr. Touhig: The hon. Gentleman has made an important contribution to the debate throughout the day from his experiences, but drawing on his experience, if at the height of an engagement there was an incident, perhaps such as the one he describes, would he not then ensure the success of the operation, the protection of his soldiers, and so on, and then get the matter investigated at a more peaceaful time when it could be thoroughly considered, rather than take a decision in the way that he seems to be implying he would take one now?

7.45 pm

Patrick Mercer: It is a hard question to answer, but I am doing my best to answer it as honestly as I can. I have never been in circumstances where there is a pressing series of operations, one after another, against a determined enemy, with pauses out of the line where one needs to deal with this sort of discipline. But my father and my grandfather did. They faced such operations. Neither was a commanding officer, but they were infantry majors, and they felt the need to be able to use summary powers to deal with similar serious offences. That was a long time ago. I can imagine circumstances where the commanding officer at a high tempo of operations will need those powers. If I may
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put the point to bed, those powers are important, they will rarely be used, but when they are used, as in the case of the commanding officer of 2RTR, they should not be challenged.

My final point is that the relationship between a regimental commander, of whatever cap badge, and the police, is always difficult. It is difficult for people who have not served to understand the feeling of the regimental family. The regimental family is the building brick upon which the army is built. No matter what assaults are being made on that system at the moment, the fact remains that the battalion, 600 to 900 men, know and understand each other. Up until the new reforms that have been introduced recently, battalions could guarantee that they all came from the same territorial area. To introduce the Royal Military Police, or their equivalent, into the chain of command at this stage is to cut away at the authority and trust that subordinate commanders have in their commanding officers. It will be a detrimental move if the Royal Military Police, or their equivalent, the service police, are used in preference to the commanding officer, who, as has been said, will always refer to the legal authorities. That injures the regimental relationship— the same relationship as on a warship or an airfield—and I ask the Government to think carefully about the matter and to take it no further.

Mr. Benyon: As is the way of things, my points have been eloquently made by my hon. Friends the Members for Canterbury (Mr. Brazier) and for Newark (Patrick Mercer), so I shall be brief and make just one or two further points. I am very concerned about the implications of the clause and the effect that it will have on the relationship between commanding officers and those who serve them.

The hon. Member for North Durham (Mr. Jones) made a good point about the idea of gangs of lawyers following our forces wherever they go as part of operations being a perception that is not borne out in reality. I shall not stand here and pretend that there is an office of Matrix Chambers opening up in Basra and that our troops will constantly be harassed under human rights legislation. Nevertheless, we have to accept that we live in a much more litigious society, and our troops going on operations are daily faced with a greater threat of litigation. We know that untoward advances have been made to people in an area such as Basra and we have to be extremely careful about how we protect our forces in that context.

Clause 116 is important in the context of alleged crimes committed by soldiers. Commanding officers understand more than anyone else the context in which an alleged offence may have occurred. I will not go through the details of the Trooper Williams case, because it was discussed at great length in Committee.

Mr. Kevan Jones: I agree with the hon. Gentleman that society has become much more litigious, which is sad, but clause 116 will protect both the commanding officer and the accused. If the special investigations branch is involved from an early stage, evidence will be gathered and the facts will be established. That means that the commanding officer cannot dismiss a serious
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charge, which could lead to accusations of a cover-up or make it difficult to gather evidence to establish what happened.

Mr. Benyon: The hon. Gentleman has made a good point. As my hon. Friend the Member for Newark has said, however, it would be nice as a commanding officer to say, “Sorry mate. You’re on your own. I have no responsibility for this case, because it has been taken out of my hands.” A good commanding officer will feel that his position and his relationship with the people who serve under him is diminished by that right being taken away from him. Commanding officers will not thank this House for such protection, if it is protection, because they will feel that their position has been undermined.

Mr. Simon: Is that not a little anachronistic and unrealistic? The hon. Member for Newark (Patrick Mercer) has said that, in the eyes of the private soldier, the commanding officer is God. Is that not an unrealistic burden to place on the shoulders of the commanding officer? In this day and age, is it right to say that that relationship, unless conducted between a “god” and a private soldier, is somehow illegitimate, and not valuable or productive? That cannot be the case, can it?

Mr. Benyon: That is a burden that commanding officers are determined they should keep. They understand more than anybody the circumstances in which their soldiers are likely to find themselves, and they need to be responsible for the decisions that they make under fire or in difficult conditions, because the people involved come under their command.

Patrick Mercer: Does my hon. Friend agree that to be in command is a huge privilege? It is a burden that is gladly taken and gladly borne, and it is always respected by the private soldiers who impose it.

Mr. Benyon: Absolutely. I never rose to the rank or grandeur of my hon. Friend, and my experience of the armed forces is even more dated than his. As a platoon commander in a rifle regiment on operations in Northern Ireland, I represented the views of one of my soldiers to my company commander when that soldier committed a military offence, and I stood in at the hearing at which the charge was put and a punishment was meted out. As a company second in command, I represented my company commander at hearings with the commanding officer when people under my command had committed more serious offences. Clause 116 would impose a glass ceiling, which would mean no responsibility for commanding officers if a crime is serious enough.

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