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Officers and warrant officers qualified for membership of the SAC

Lords amendment: No. 26.

Derek Twigg: I beg to move, That this House agrees with the Lords in the said amendment.

Madam Deputy Speaker: With this, we may discuss Lords amendments Nos. 30, 50, 53, 54 and 69.

Derek Twigg: The amendments simply change the reference to the “Supreme Court” of Northern Ireland to the “Court of Judicature”. The Supreme Court of Northern Ireland is renamed under the Constitutional Reform Act 2005 as the Court of Judicature of Northern Ireland.

Lords amendment agreed to.

Clause 154

Constitution of the Court Martial

Lords amendment: No. 27.

Derek Twigg: I beg to move, That this House agrees with the Lords in the said amendment.

Madam Deputy Speaker: With this, we may discuss Lords amendments Nos. 28, 29, 31 to 34, 52 and 62.

Derek Twigg: The amendments deal with the minimum and maximum numbers of lay members required for a court martial. They respond to views in this House and in another place about the desirability of including minimum and maximum numbers of lay members in the Bill rather than in the rules. They also introduce a power to create in the rules made under the Bill a slip rule for the court martial. A slip rule is a power to respond to errors in sentencing and is analogous to a power that is applied in the Crown court. The amendments also define who may be a judge advocate.

Mr. Gerald Howarth: This group of amendments places in the Bill the make-up of the panels. There was much debate on this issue in the other place, and it focused not only on putting the numbers in the Bill but on whether there should be a presumption that the panel of the court martial should be made up of members of the defendant’s own service. The Minister will know that Admiral Lord Boyce has been vigorous in his pursuit of ensuring that that should be the presumption. The former Chief of the General Staff, General Sir Mike Jackson, was also very much of the view that soldiers should preferably be tried by other soldiers, and that that should be the presumption. I
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seek from the Minister a repetition of the assurance that was given in the other place by Lord Drayson, who said:

One of the difficulties that we face is that the Bill will generate a vast amount of regulation, of which we have not yet had sight. That is understandable, but it makes our task more difficult. It is important that we have an assurance that there is no doubt that that will be the presumption. Lord Boyce made the point that, for example, there would be no point in a soldier or a sailor dealing with a case involving negligence while flying. Equally, if a ship had run aground, it would be much more sensible to have a naval panel to administer the court martial than soldiers or airmen. We have logic on our side in this matter, and I hope that the Minister will be able to confirm what his noble Friend said in the other place.

A further issue in relation to courts martial relatesto the Director of Service Prosecutions, who will administer the process. I hope that the Minister will be able to repeat in this House the desire expressed in the other place that the director should have military experience, and that, if he does not, he should be sent on an induction course to ensure that he does. I see a certain amount of agreement on this in parts of the Chamber where, I assure the Minister, it is valuable for him to have agreement. In consequence, I do not think that giving such an assurance should cause him any trouble. It is important, however, that he should give us that assurance here tonight.

Bob Russell (Colchester) (LD): I should like to reinforce the point made by the hon. Member for Aldershot (Mr. Howarth). There was broad consensus among those of us who served on the Armed Forces Bill that, although we obviously welcomed the bringing together of the disciplinary procedures of the three services, it was vital in the eyes of the accused that those sitting in judgment on him or her in a court martial should predominantly be members of his or her service. It would be preferable if they were drawn exclusively from that service, however, because that would ensure that it was the defendant’s peers from his or her own service who were sitting in judgment. Will the Minister give us an assurance that those sitting in judgment in a court martial will more often than not—if not always—come from the same service as the accused?

Patrick Mercer: I warmly welcome the change made by the Bill to allow servicemen and women of all ranks to sit in judgment on courts martial. I always found it peculiar that, previously, the administration of justice at court martial was restricted to officers. It is an excellent idea to take advantage of the knowledge and residual experience of, for example, warrant officers. We ignore that understanding, knowledge and empathy at our peril. The measure is sensible.

The recent, unfortunate downing of a Nimrod aircraft showed how mixed our servicemen and women are on operations. I think that I am right that that Nimrod crew included conventional airmen—if that is
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the right phrase—Royal Air Force Regiment aircrew, a Royal Marine and a Parachute Regiment soldier. Therefore, if there had been some disciplinary proceeding involved, a joint service court martial would have made a huge amount of sense. Assembling such a court martial will be expensive, however, and will cause a time delay. I speak with a little experience about that. A soldier, sailor or airman who is to face a court martial wants quick justice.

As a note of caution, the disciplinary atmospheres of the Royal Navy, the Royal Marines, the Army and the Royal Air Force are subtly different. For instance, friends of mine in the Royal Air Force who served with my battalion in Bosnia found remarkable the draconian attitudes that we had to take towards the relatively minor offence of absence, which is almost unknown in the Royal Air Force. Therefore, as the application and delivery of discipline are subtly different between the services, I ask the Minister to assure the House that a mixed panel will be the exception rather than the rule.

Derek Twigg: Some important points and reflective contributions have been made. I am happy to put several points on the record in response.

I understand the concerns of the hon. Member for Aldershot (Mr. Howarth) about mixed panels in a court martial trying servicemen. I reassure him that we strongly believe—as do all three services—that a court martial should generally be made up of individuals from the defendant’s own service. In response to the hon. Member for Newark (Patrick Mercer), such a panel would not include all ranks—it would include officers and warrant officers, as is the case now. On this issue, I can do no better than repeat what my noble Friend Lord Drayson said in Committee in the other place on 11 October:

Rules will provide the criteria on which the court administration officer should select a mixed panel. I hope that that reassures the hon. Member for Aldershot and other Members that in most cases, as now, a serviceman tried by court martial will appear before a panel made up entirely of members of his own service.

On the issue of the Director of Service Prosecutions, it is essential that we do everything that we can to appoint the best person to that important job. I also recognise the strength of feeling expressed by hon. Members and those in the other place that the person appointed should be someone who has had service experience. The service chiefs considered the matter carefully, and have assured Ministers that they are content with the Bill as it stands. They welcome the consultation that will take place with the principal personnel officers in each of the services about the job
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specification and terms and conditions for the post, and the involvement of a senior serving officer in the selection process.

9.15 pm

I think that we are agreed on two things: that the director should have the appropriate service experience, and that the recruitment process should be sufficiently robust to ensure that the person appointed will be an outstanding individual who will enjoy the confidence of the services while being entirely independent from them. By “service experience” I mean an understanding of service life and the operations of each of the services, and of the needs and workings of a service system of justice and discipline.

It is possible that there will be an outstanding candidate for this important post who has no previous uniformed experience, or whose service may have taken place some years ago. In both cases, it would be particularly important for the candidate to undertake an appropriate induction period before taking up the post. Similarly, were the director to be appointed from one of the services, he or she might need a period in which to develop a deeper understanding of how the other two services operate.

We recognise that any induction process needs to be intensive, and of sufficient duration for the individual to develop a thorough understanding of life across the three services. As I have said, it is essential for the director to have a knowledge of how each service operates, and of the needs and workings of the service system of justice and discipline.

Lords amendment agreed to.

Lords amendments Nos. 28 to 36 agreed to.

Clause 184

Conditional or absolute discharge

Lords amendment: No. 37.

Madam Deputy Speaker: With this it will be convenient to take Lords amendments Nos. 38 to 46 and 70 to 73.

Derek Twigg: I shall be brief, in view of the time. These minor amendments are designed to clarify sentencing powers of the Service Civilian Court, to clarify the position on the commencement of activated sentences of detention, and to provide how time spent in service custody is to be treated in relation to sentencing.

Mr. Gerald Howarth: A judgment on the Martin case was delivered recently in the European Court of Human Rights. Ministers have held throughout our proceedings that the Bill is compliant. For the sake of brevity, I shall merely say that the case involved a 17-year-old civilian, the son of a serving soldier, who was tried for murder. The trial took place by court martial in Germany after the father had left the service and, indeed, left Germany. The child was taken back there. Can the Minister tell us whether the case will result in a change in the administration of the Service Civilian Court?

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In respect of punishments, there was a debate in the other place about the rules of engagement. The Government decided not to accept the suggestion from the former chiefs that the rules of engagement ought to be cast in law, so that any soldier, sailor or airman acting in pursuance of those rules would be immune from prosecution. It might help the House if the Minister repeated some of the assurances given in the other place, most notably by his noble Friend Lord Drayson, who referred on 11 October to

Lord Drayson said:

Our soldiers have concerns about the rules of engagement and about the risk of prosecution, about which the armed forces have tried to do something to reassure our soldiers in particular.

If the Minister could state here that he supported what his noble Friend Lord Drayson said, it will send out a clear message to our armed forces—particularly those on the front line in Afghanistan and, to a lesser extent, in Iraq—that they can have confidence in the system, and that provided that they act in good faith and in accordance with their rules of engagement, notwithstanding that those rules are not enshrined in law, they will be supported not only by the chain of command but by the service courts that the Bill seeks to establish.

Derek Twigg: On 24 October, the European Court of Human Rights gave its judgment in the case of Martin. We need to be clear what it decided. The case was about the son of a serviceman who was tried by court martial in 1995 for the murder of a civilian in Germany. The court martial was subject to the same objections as were found to exist in the Findlay case in 1996, and which were remedied by the Armed Forces Act of 1996. It is no surprise that the European Court also decided in Martin that the court martial was not compliant.

The European Court did not decide that courts martial should not try civilians, or that they should not try civilian juveniles, but it did state the important principle that a military jurisdiction should be exercised over civilians only if there are “compelling reasons”. In the Martin case there was the possibility of civilian trial in the UK, because the charge was murder. The court did not decide whether there had been "compelling reasons" for court martial trial. It did not need to, because as I have said, it decided the case on the basis that the court martial at that time was not compliant. The court did not go into what they thought would be compelling reasons.

We are looking carefully at the judgment in Martin. We will consider carefully the need for compelling reasons and will seek to ensure that, where court martial trial is adopted, there are compelling reasons for doing so. We shall also consider further the make-up of the court martial in cases involving civilians. There are a number of issues here. We have to ensure that, so far as possible, we have a uniform and consistent system available for all civilians who come
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within the scope of the Bill. We also need to take into account the need for a court martial to be able to sit abroad.

The Bill contains a wide power to decide the membership of the court martial in special cases. We were already considering what the membership should be in civilian cases. Hon. Members can be assured that in every respect, we will do what we think this judgment requires.

Finally, hon. Members will appreciate that the judgment in the case of Martin has potential implications not only for the court martial under the Bill, but also for courts martial convened under the Service Discipline Acts. If, following careful deliberation, we conclude that the judgment requires our current procedures to be modified, we will beable to do so using the alignment powers provided by clause 381.

Mr. Howarth: Having attended relatively few of these debates, the Under-Secretary may not be familiar with my views; others may be. I think it is very dangerous for this House to allow the European Court of Human Rights to determine the disposition of our armed forces and how we organise their justice. They look to us for the remedying of injustice, and how we organise our courts does seem to be a matter for us. Also, those judgments of the European Court of Human Rights are recommendations, and the Government are free to reject them.

Derek Twigg: I understand where the hon. Gentleman is coming from.

Given that the use of these powers is subject to the affirmative resolution procedure, any such proposals will be subject to proper parliamentary scrutiny. I am sure he will welcome that.

On the rules of engagement I am happy to put on record that I agree with Lord Drayson’s comments in another place.

Lords amendment agreed to.

Lords amendments Nos. 38 to 46 agreed to.

Clause 332

Redress of individual grievances: service complaints

Lords amendment: No. 47.

Derek Twigg: I beg to move, That this House agrees with the Lords in the said amendment.

Madam Deputy Speaker: With this it will be convenient to discuss Lords amendments Nos. 48, 49, 55 and 63.

Derek Twigg: I am conscious of the time, and I know that some hon. Members wish to contribute on these amendments. I hope that they will therefore agree thatI should concentrate on the key changes to the complaints procedure introduced by the Government in the other place.

Mr. Gerald Howarth: This is an important group of amendments and we accept that it is part of the
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Government’s response to the Blake report. In the other place, concern was expressed about the impact of the proposed independent commissioner on the chain of command. In the other place, Marshal of the RAF Lord Craig of Radley said:

This is another issue on which he put his finger squarely on the concerns that many of us have about the corrosion of the chain of command.

I therefore hope that the Minister can give us some assurance that the commissioner will be someone appropriate. In the debate in the other place, Lord Drayson said:

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