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At the instigation of the Attorney-General, Williams was charged but the case was dismissed by the civilian judge. The Government argue that the removal of the power to dismiss a serious charge will prevent a repetition of the Williams case. However, the commanding officers judgment was vindicated. The case says more about the high command and the political pressures that led to Trooper Williams being offered for prosecution than about the power of the commanding officer to dismiss a charge. I agree with
the Government that we must avoid such a case in the future. I am at one with the hon. Member for Islwyn, the former Under-Secretary, that we must find a way to keep such matters in the military domain and not leave them up to civilian courts.
Mr. Jones: Does the hon. Gentleman agree that if the system for which the Bill provides had been in place at the time of the Trooper Williams case, the police evidence would have been collected early and led to an informed judgment earlier, which perhaps would not have meant the unacceptably lengthy process that he describes? If that had been done, Trooper Williams would not have gone through what he did.
Mr. Howarth: I do not agree with the hon. Gentleman. The facts prove him wrong. The commanding officers original judgment was right. He did the right thing. He took legal advice and investigated, but some lawyer in uniform higher up thought that the advice given by the legal officer on the ground was wrong. We then had the farcewell, it was not a farce for Trooper Williams; it was a serious personal tragedy for him. It was a disgrace. We then had the disgrace of the case going through the military courts so that the high command could be absolved of failing to offer a soldier for prosecution.
In the Select Committee, I suggested that there were ways round the problem. I suggested, as the hon. Member for Islwyn was kind enough to point out, that there were ways of dealing with it. The first option that I proposed would have given a commanding officer the power to dismiss charges, even when he would not have had the power to deal with them summarily, but would have incorporated the amendments to Queens Regulations of 29 July 2004, which would require the commanding officer to seek the approval of his higher authority before dismissing any charge. That is the situation that prevails in Iraq today. As my hon. Friend the Member for Enfield, Southgate (Mr. Burrowes) suggested, that is the way the system works today, and I cannot see why we cannot replicate it in the Bill.
This is a lost opportunity. I am sorry that the Government could not accede to our proposals, and I would like to put it to them again that they would reflect current practice, which appears to be working reasonably well. They would also address the problem, which we all agree must never arise again, of a charge arising from an event on operations during active service going outside the military domain and being dealt with by a civilian court that would not understand the military context. I hope that the Government will be prepared to look again at this measure in another place, particularly once they have heard the advice of the former Chief of the Defence Staff.
In the meantime, however, I am disappointed that the Government were unable to accept the amendment that I tabled to clause 116, to which the hon. Member for Islwyn and others have already referred. My amendment would have required a service policeman investigating a charge against a member of the armed forces to inform that individuals commanding officer of any intention to refer the case to the director of service prosecutions. The amendment would also have made provision for the commanding officer to make his own representations about the case to the director of service prosecutions.
I should like to explain to the Minister that that would have enabled the commanding officer to set the episode in the military context, so that the director of service prosecutions would have that information to hand. In a moment, I shall deal with the response that the hon. Member for Islwyn gave me in Committee, but first I want to explain this point to the Minister. I know that he is new to his post andI do not say this in a patronising sensehe has a huge amount to master. It seemed to be accepted by the Government that it was desirable that the commanding officer should have that input. We pressed the matter to a vote, and the Committee divided equally. It was only the Chairmans casting vote that enabled the Government to carry the day. However, I remain convinced that there should be a requirement that the commanding officer be informed.
The Bill already reduces the power of a commanding officer to dismiss a serious charge against an individual under his command. However, to remove the commanding officer from the loop altogether would reduce his authority over his men yet further. We have heard powerful evidence tonight from a former commanding officer of the importance of the bond between men and their commander. The Committee would be ill advised not to recognise the force of the argument put forward by my hon. Friend the Member for Newark.
The provision to allow a commanding officer to submit his own report once a charge had been referred to the director of service prosecutions would ensure that the assessment of the commanding officer, setting out the military context, was included in the directors assessment of whether there was a case to answer. The commanding officer would know the men under his command. He would probably have been present when the incident took place; if not, he would not have been far away. He would therefore bring not only more immediate knowledge of the military context but, most importantly, knowledge of the individual concerned.
Will the removal of the safeguard of having the commanding officer in the decision-making process increase the chances of a serviceman being put on trial without adequate understanding of the operational circumstances? Lord Boyce said in the other place on 14 July:
Command and discipline in the Armed Forces go absolutely hand in hand. A commanding officer, who has total responsibility for the command of his ship or unit, must, in turn, be responsible forand carry outits discipline. It is impossible to achieve and maintain the necessary level of discipline unless those under his or her command are in absolutely no doubt that their commanding officer has authority over them.[ Official Report, House of Lords, 14 July 2005; Vol. 673, c. 1235.]
The hon. Member for North Durham has had great fun trying to suggest that the former First Sea Lord and Chief of the Defence Staff had somehow failed to provide adequate evidence to sustain his argument. I have referred to the risk-averseness that many people in the armed forces recognise. However, since the beginning of our proceedings, a document has come to light. It is headed Reinforcement of pre-deployment training in Iraq, and it was produced at the beginning of December by Major Whitelegge, who is SO2 Plans,
following a survey that had been carried out among7 Armoured Brigade. It is disappointing that we were not told about its existence.
One of the matters that the major was asked to examine was troops reluctance to become decisively engaged when the rules of engagement clearly allowed them to do so. The findings were pretty emphatic.
Confidence to open fire. All agreed that there was a certain British reticence to open fire, and that this was largely a positive feature at the start of an operational deployment... However, there remained a common belief that many soldiers lack the confidence to initiate opening fire when it is tactically and legally sound to do so. Reasons for this were given in the following approximate priority order:
(a) fear of investigation. There is a widespread fear of being investigated for having opened fire, and of a protracted prosecution system that might ensue. Some believed that individual soldiers would not open fire as a result of this fear. More typically, it was felt that soldiers would open fire, but only within the strictest interpretation of the ROE...
(b) Inconsistencies in ROE training. Throughout PDT
units have received differing advice on what level of force is suitable in a given situation, usually due to different understandings of the imminency of the threat being faced by the soldier, or borne from experiences on other operations with different policies.
Mr. Kevan Jones: Is not this a great example of the innuendoes, half-truths and hearsay that the hon. Gentleman and Lord Boyce are peddling? This is having an effect on our armed forces that is, frankly, not very helpful. May I refer the hon. Gentleman back to Lord Boyces response to my question? He said:
I do not have any which I can give the Committee, Chairman.
In other words, he did not have any factual evidence that legal encirclement had actually stopped armed forces taking part in any activities. I say to the hon. Gentleman: stop peddling this, because it is damaging our armed forces.
Mr. Touhig: As the hon. Gentleman knows, the Prime Minister deprived me of a seat on the Front Bench. I am, however, somewhat disappointed by his remarks. Does he recall that the Committee saw a video, which gave details of how our troops are instructed on the rules of engagement, and that we were able to ask questions of officials and people who had served on the front line, and none of the issues that he raises came up? I share the concern expressed by my hon. Friend the Member for North Durham (Mr. Jones) that this House and the other place must be careful about giving credence to half-innuendos that affect the morale of our people. It is all right for us sitting on these comfortable green Benches; we are not in Iraq tonight.
Mr. Howarth: I am grateful to the hon. Gentleman. He is absolutely right that we saw the film, which raised several questions, including that of the limitations on when servicemen can open fire. I do not want take the House through all the scenarios involved at this time of
night, but I hope that he will agree that certain reservations were expressed by several hon. Members. I think that that film could be improved a great deal.
Mr. Howarth: I will not do so now, as I am trying to describe something. In that film, we saw guards on a ship at night, who heard a sound, and fire was offered. They went to investigate, and the enemy took off in an inflatable and were seen disappearing. The guards were not allowed to shoot them because they were not under immediate threat. One Member raised the point that while they were not under immediate threat, the enemy might have been about to offer immediate threat to some of their fellow servicemen. This is a difficult area, and the hon. Member for Islwyn is right to raise it. A lot more work needs to be done on that.
To return to the substance, I raised the issue of the survey because it has already gone into the public domain; extracts of it were published in The Sunday Telegraph a couple of weeks ago. I have made inquiries among those who are currently serving, and I understand that a great effort has been made to try to encourage and build confidence among those on the front line that they might open fire with confidence. To the extent that that has been doneaccording to an insider whose word I trust implicitlyI am encouraged. I make no apology for repeating something that has already appeared in a newspaper, perhaps at greater length, as it illustrates the risk that we face if we do not back up our people, and how easy it is for them to lose the confidence that is essential if they are to be able to fight the fight on our behalf and to save their own lives. If they fail to open fire out of reticence and lose their lives, we will have betrayed and failed them, as the whole House will agree. We must get the balance of judgment right.
Mr. Brazier: My hon. Friend is making a powerful speech. Several Members have put this issue in the wider context of a litigious society. May I remind him and the hon. Member for North Durham (Mr. Jones) that in introducing the Compensation Bill to deal with such wider civil effects, no one in the Government, even when saying that it is purely a matter of perceptions, ever sought to blame those in the scouting movement and other areas who have complained for somehow stirring up innuendo?
Time is marching on. I suspect that we will not be able to debate one of the new clauses relating to the creation of an armed forces federation. To reinforce my earlier point, let me quote from The Sunday Times yesterday, which reported on the setting up of the British armed forces federation. It quoted Professor Richard Holmes, who is universally admired by all of us who have an interest in defence, as saying:
Politicians control what senior officers say more than they did in the past.
They simply cant say what the problems might be. Someone has to do that.
Many service members believe comrades accused of war crimes in Iraq, who were later found not guilty, were hung out to dry by the government.
Mr. Howarth: Of course. I apologise. I accept that he and his hon. Friend the Member for Islwyn are committed to the armed forces. It is, however, imperative that we understand the culture of the military, and the vital importancementioned by my hon. Friend the Member for Newarkof ensuring that our people out there feel they have the support of not just the political commanders, but the chain of command.
The hon. Member for Islwynthe former Minister whom the Prime Minister obviously thought too old to be veterans Ministersought to assure me that there would be detailed guidance. I do not doubt his word for a moment, but let me say this to his successor. Clause 116 clearly states what happens after an investigation. It could not be more explicit; indeed, it could not be more pedantic. Subsection (2) says that if
a service policeman considers that there is sufficient evidence to charge a person with a Schedule 2 offence
he must refer the case to the Director of Service Prosecutions.
We are absolutely clear about the role of the service policeman. It is perfectly all right to specify that in the Bill. However, we are told that it cannot be specified in the Bill that the commanding officer will be empowered both to make representations and to be told of the outcome of the service policemans investigation.
I am sorry, but I must insist that that is not correct. It is fine to be prescriptive about the role of the service policeman, but I do not think it acceptable to argue that we cannot be prescriptive about the role of the commanding officer. The commanding officer is central to the whole concept of the chain of command, and to the protection of the men under his command. Unless the Minister is prepared to say that he will deal with that in the other place, I am afraid that I will seek to persuade the Committee to vote against the clause.
The clause determines to whom a service policeman refers a case once he has investigated it. It also determines to whom a service police force refers a case that has been referred to it by a United Kingdom or overseas civilian police force. Its purpose is to ensure that the most serious or sensitive cases are referred to the service prosecuting authority.
Subsection (2) requires a service policeman who considers that there is sufficient evidence to charge a person with a schedule 2 offencethat is, one of the
most serious offencesto refer the case directly to the prosecuting authority without first passing it to the persons commanding officer. When a service policeman considers that there is sufficient evidence to charge the person with another offence in the context of circumstances prescribed by regulations, he will also have to refer the case to the prosecuting authority. When the offence is not covered by schedule 2, and no prescribed circumstances apply but the service policeman considers that there is sufficient evidence to charge the person with some other offence, subsection (3) requires that it be passed to the persons commanding officer.
Subsection (4) requires a service policeman to consult the prosecuting authority before referring a person to his or her commanding officer if it was originally thought that a schedule 2 offence might have been committed, or that prescribed circumstances might exist. That ensures that in such a case the service polices decision on whether there are sufficient grounds for the case to be referred to the prosecuting authority will be made on the advice of the prosecuting authority.
Many Members have raised specific points. First, let me deal with the risk-averse points. We have heard a number of quotations from Lord Boyce and various others. If I understand the argument correctly, what is being suggested is that clause 116 will create a politically correct brigade of lawyers who will be profoundly challenging to the roles played by service personnel. The argument is that personnel will be more risk-averse in the field of combat and in operations, and that they will be inhibited from operating effectively in theatre. I understand those arguments, but on reading the transcript of the debate in Committee, I wanted to test the issue for myself. Last week, I visited the Coldstream Guards and asked them whether they felt inhibited by the rules of engagement and thought that a new culture was developing in the forces. Their commanding officer afforded me time to talk to infantrymen who had been on the front line, and from their CO down I did not get that impression.
Mr. Gerald Howarth: The Coldstream Guards were based in Aldershot until last year, and they returned from Iraq after a difficult tour. Their padre is a close friend of mine. I spoke to several warrant officers in the sergeants mess, and there is no doubt that some of them felt inhibited. I sought to say that an authority whom I regard as one of integrity told me that the position had improved, but the Minister will accept that the survey carried out on the 7th Armoured Brigade at the end of November and the beginning of December, and some of the remarks that have been made, indicate that there has been a problem.
Mr. Watson: The hon. Gentleman and I will have to draw different conclusions from the conversations that we have had. That was not said to me when I was in the sergeants mess, and when I talked to the infantrymen to test out this issue they gave no impression that they felt inhibited. I asked the commander who conducted our forces in Basra whether he felt inhibited by the rules of engagement, and he said, No, not at all. So the hon. Gentleman and I have obviously had different conversations.
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