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6.43 pm

The Parliamentary Under-Secretary of State for Education (Mr Edward Timpson): This has indeed been a truly excellent debate. I join all those in the Chamber today in congratulating my hon. Friend the Member for South Swindon (Mr Buckland) on securing so much time in the main Chamber for what we all agree is a very important subject. As the parent of a child with autism, whom I was privileged to meet last week, my hon. Friend has championed the cause of all children and young people who are on the autistic spectrum with such diligence, passion and vocation. It is a testament to him that in his constituency the Swindon SEN Network is proving to be a real help to many children. I am pleased to be able to pay such a heavy tribute to him.

I should also pay tribute to my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) for her work. She was instrumental—indeed, she played a pivotal role—in getting the landmark Autism Act 2009 on to the statute book. The impact of that Act continues to resonate to this day. I also pay tribute to you, Mr Speaker, for your work to make many more people aware of the plight of young people with autism. I am pleased to learn that, in Baroness Browning, the hon. Member for Hayes and Harlington (John McDonnell) and I have a mutual friend—not something I ever expected—and that we are both benefiting from her vast experience. Finally, I join others in praising the work of the all-party group on autism, its Chair, my hon. Friend the Member for South Swindon, and all the officers here today.

I thank all hon. Members who have contributed so constructively to the debate. It is heartening to hear that there is strong cross-party support for the general thrust and direction of our reforms. I shall endeavour to cover as many of the points made in the debate as I can, but if fail to do so in the short time available to me, I shall of course answer in writing to the hon. Members who made them.

My hon. Friend the Member for South Swindon spoke about his personal experience. He explained how he and his family had been through the mill because the system had not worked and how, like many parents, he felt that there was an obsession with process and categorisation, rather than with outcomes for children with autism. I shall try to answer that and many of the other points he made in the body of my speech.

The hon. Member for Stalybridge and Hyde (Jonathan Reynolds) also spoke from personal experience of bringing up a child with autism. His was a powerful and thoughtful speech, and I shall pick up one or two of the points he made now, because they are important. He talked about parents’ rights, and I intervened on the hon. Member for Hayes and Harlington to clarify the point, which I also discussed with the Select Committee. The new system of education, health and care plans will carry through all the rights that parents have under the current statementing system—in fact, they will be extended in some circumstances. Young people will also have additional rights, such as to choose the type of further education establishment they attend, and we will also run pilots in which children have the right to take cases to tribunal. In no sense are we attempting to diminish the rights available to parents; instead, we are trying to enhance

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them. The legal force of an education, health and care plan will be the same as that of a statement. I hope that that gives the hon. Gentleman some reassurance.

Jonathan Reynolds: Parents across the country will be reassured by the Minister’s statement. What form does he believe that provision will take? Will it be made by amending the Bill, or through secondary legislation and regulations? If that is the case, perhaps members of the all-party group could be part of the process, to help make the legislation as effective as possible.

Mr Timpson: The legislation we have is in draft form and is undergoing pre-legislative scrutiny. We are listening carefully to all the concerns raised by parents and others to make sure that, as all speakers have said this afternoon, we get it right. Where it is not clear, we are happy to look and to make sure that it is absolutely clear. Of course, with the code of practice and regulation to come, we have the opportunity to set out in more detail how everything will hang together and play out on the ground for parents. I was pleased to hear the hon. Member for Washington and Sunderland West (Mrs Hodgson) say that the Opposition want to play a role in developing that.

Mr Buckland: Will my hon. Friend carefully consider the point I made about the need to make sure that the code of practice is enshrined in secondary legislation, so that there can be both certainty and, if and when it needs to change, flexibility, as it will be a living document?

Mr Timpson: I understand my hon. Friend’s point. He knows that the current code of practice, because of the parliamentary resolution required, has not been changed since 2001, and that creates anomalies—for example, it refers to agencies, such as the Learning and Skills Council, that no longer exist. To make it a living document, we need to be able to keep it up to date and in the proper form that reflects current practice. I shall consider his point and I am sure that we can take it up as the Bill goes through Parliament.

I was trying to give some impression of the thrust of individual Members’ contributions. I want to address some of the points raised by my right hon. Friend the Member for Chesham and Amersham, particularly in relation to independent special schools and the ability of young people and parents to have a preference in their plan. That was also raised by the hon. Members for Newcastle upon Tyne North (Catherine McKinnell) and for Washington and Sunderland West (Mrs Hodgson). As I told the Education Committee, we are working closely with independent special schools to try to get over the hurdle of the legal difficulties and the definition. We hope to resolve those difficulties, because there is a growing consensus that we should have as much involvement with all the schools that parents might want to send their children to as the most appropriate places for them to be educated and to have the support they need. We are hopeful about resolving that, so I hope that reassures hon. Members that it is something we are working on. As I have said previously, we want to ensure that we get that right and do not end up with

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something that proves undeliverable, as that would not be in the best interests of the children we are trying to help.

In relation to the adult autism strategy, I again pay tribute to my right hon. Friend the Member for Chesham and Amersham for the work she has done. The review is coming up next year, between March and October, and I want to re-emphasise the importance of a cross-departmental effort to ensure that the strategy develops in as co-ordinated a way as possible across Government and that it is not simply taken up by one or two Departments. I am happy to talk with her about how we can achieve that and ensure that every Department plays its part.

Several Members, including my right hon. Friend, mentioned the work capability assessments and Atos. That is obviously something that has been running for some time. The third independent review of how the assessments are functioning has now been published by Professor Malcolm Harrington. It states that real progress on improving the assessment is

“beginning to change positively in the best interests of the individual”.

There are ongoing concerns, as hon. Members have mentioned, and I will be happy to write to the relevant Minister in the Department for Work and Pensions so that they can consider the points that have been raised. The health professionals recruited by Atos or Capita must demonstrate the appropriate skill in assessing people with conditions affecting mental health and intellectual and cognitive functions, and that includes taking into account their history and observing their ability to perform relevant tasks. That should also include those with autism. I take on board the point that has been raised and am happy to share that with the relevant Minister in the Department for Work and Pensions.

Mrs Gillan: Even during the course of this debate I have been tweeted by someone in Yorkshire who says that she is working with the Department for Work and Pensions on identifying hidden impairments. Will the Minister ensure that work is really co-ordinated across all Departments so that we maximise on this and do not consign people to the scrap heap because we have not had the right people in the right place making the right assessments?

Mr Timpson: I cannot resist offering my right hon. Friend the answer I gave earlier, which is that it is important that the Government work in a co-ordinated way across all Departments. Of course, I am sure that is something we can try to ensure through my correspondence with the Department for Work and Pensions.

The hon. Member for Hayes and Harlington touched on a number of important issues in his contribution. It is good to hear that the trade union movement is stepping up to the plate and looking at the important role it can play in ensuring that autism is thought about carefully when the working environment is considered. On his point about appeals and whether there will be any dumbing down of the right to appeal through the tribunal process, we will in fact be widening the right to appeal. If he looks at clause 28 of the Bill, he will see that it is not just parents who will be able to appeal; young people over the compulsory school age will also

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be able to. As I iterated only a few moments ago, we are piloting the role children might be able to play in challenging any decisions made on their behalf.

In relation to the restrictions on legal aid, the current arrangements will continue as before. I certainly remember that my hon. Friend the Member for South Swindon was instrumental in some of the elements that ensured that legal aid will continue in this area. Over and above that, it will also be available to young people if they decide to take any of these cases to tribunal.

John McDonnell: Another point that I raised related to clause 39 on the responsibility on the local authority to use its best endeavours, which replaces the obligation on it to implement the statement. Will there be any discussion or reappraisal of that?

Mr Timpson: No. The “best endeavours” provision relates to the school as opposed to the local authority, which will still have the duty that exists now. I am happy to put that in writing for the hon. Gentleman, but I hope that that clarifies his point.

My hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) told us about her visit to TreeHouse school, which I understand has just received an outstanding Ofsted inspection rating, so I congratulate it on that. She also told us about the great work that Squirrels residential unit in her constituency is doing, and about the importance of ensuring that those who turn 16 do not have their opportunities narrowed as a consequence of their reaching that age.

The hon. Member for Strangford (Jim Shannon), who decided that I might have some culinary skills that I did not know existed, invited me to look carefully at how the reforms on autism are playing out in Northern Ireland. I am happy to do that, both in relation to how they have worked well and to how we can perhaps learn some lessons where they have fallen short of the expectations that were placed in the legislation.

I am grateful to the hon. Member for Ceredigion (Mr Williams) for his contribution and for his invitation for me to look at what is happening with Autism Cymru and the all-age strategy for autism that has now been running for four years. His experience of teaching prior to coming to this House has clearly given us the benefit of his ability to be a strong contributor to the Bill as it moves forward, and I look forward to his future contributions.

The hon. Member for Newcastle upon Tyne North (Catherine McKinnell) told us about Thomas Bewick school in her constituency and the inspiring work that it is doing for children with autism. She asked about the work of the Autism Education Trust. For the past two years, the Department has grant-funded the AET to the tune of £1.2 million, but I am pleased to say that there is now a further opportunity for it to apply for the grant that we have offered for the next two years as part of our voluntary and community sector grant funding, as well as a further contract for work with children with autism. I hope that the AET will look at that and see that it could put in a strong bid that we will be able to consider.

My hon. Friend the Member for Plymouth, Sutton and Devonport (Oliver Colvile) told us about a troubling case in his constituency and the importance of training

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police officers, which comes to the fore when they are dealing with people with mental health problems and those who may display behaviours which, if officers do not have awareness of the condition, may lead them to make a decision that is not based on the best interests of those individuals.

My hon. Friend the Member for Portsmouth North (Penny Mordaunt) told us about the parents autism workshops and support project, which I need to learn more about to hear about how it is helping many young people in a very innovative way. She asked whether I would like to hear more about the cases that she has raised. Yes, please; we are still at a listening stage in the pre-legislative scrutiny of the Bill, and anything that can enhance my knowledge and understanding of the effect of the current system on parents and young people can only help to ensure that we get the whole Bill right throughout its passage and into the implementation stage.

I thank the hon. Member for Washington and Sunderland West for her welcome invitation, as I see it, to work closely and collaboratively in trying to ensure that we get the Bill into the best possible state that it can be so as to help and benefit as many young people and children as possible all the way through from the ages of 0 to 25, as the new reforms will. I look forward to those discussions as we move forward. She is right that young people with autism are a huge asset to our society; they enrich it, and we should always remember that. We should not forget that they want to make a positive contribution, and we should do everything we can to make sure that they can do just that.

There are many more things that I wanted to say and I am sorry that I do not have more time to do so. I am pleased that the debate has managed to flush out many of the issues that are troubling parents as we move forward with the Bill, and that it has given me an opportunity to reflect on many of the excellent points made by Members across the House. As the Minister charged with reforming the SEN system, I am under no illusions about the importance of getting this right. I thank all Members for their excellent contributions and look forward to continuing our discussions as we move through the stages of the Bill. Finally, I commend my hon. Friend the Member for South Swindon for his great work.

Question put and agreed to.


That this House has considered the matter of autism.

Business without Debate

European Union Documents

Motion made, and Question put forthwith (Standing Order No. 119(11)),

Financial Management

That this House takes note of European Union Documents No. 11112/12 and Addendum, dated 8 June 2012, relating to a Communication from the Commission to the European Parliament, the Council and the European Court of Auditors: Synthesis of the Commission’s management achievements in 2011, and No. 11479/12, dated 15 June 2012, relating to European Court of Auditors’ Opinion No. 4/2012 on the Commission’s evaluation report on the Union’s finances based on results achieved established under

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Article 318 of the Treaty on the Functioning of the European Union; considers the Commission’s report to be disappointing, inadequate, and unfit for purpose; consequently welcomes the European Court of Auditors’ critical analysis of the report and the constructive suggestions for improvement; agrees that a thorough analysis of results achieved against planned outcomes would be a useful focus for future reports; considers that useful and timely information on transparency, accountability and quality of European Union spend is essential to facilitate a better understanding on behalf of Member States, the public and other institutions of the performance of the Commission’s management activities; agrees that a timely report is necessary to inform the annual Budgetary discharge process; and calls on the Government to make specific proposals which strengthen the independent external audit of the EU budget and programmes, improve procurement rules and ensure that experienced and qualified audit professionals implement an audit and inspection system geared to addressing risk and securing efficiency and added value in all EU expenditure.—




Question agreed to.

Delegated Legislation

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Community Infrastructure Levy

That the draft Community infrastructure Levy (Amendment) Regulations 2012, which were laid before this House on 15 October, be approved.—(Greg Hands.)

Question agreed to.

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Northern Ireland

That the draft District Electoral Areas Commissioner (Northern Ireland) Order 2012, which was laid before this House on 15 October, be approved.—(Greg Hands.)

20 Nov 2012 : Column 552

Question agreed to.

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Disabled Persons

That the draft Disabled People’s Right to Control (Pilot Scheme) (England) (Amendment) Regulations 2012, which were laid before this House on 24 October, be approved.—(Greg Hands.)

Question agreed to.


Nippers Nursery, Leicester

7 pm

Jonathan Ashworth (Leicester South) (Lab): I want to present a petition on behalf of almost 300 residents of the Leicester city area.

The petition states:

The Petition of staff and parents of Nippers Nursery, Saxon House, Leicester,

Declares that on 30 November Nippers Nursery will be closed by HMRC and that the reason given is that there is a declining number of children attending; further that the Petitioners believe that this is simply not true and that Nippers Nursery is a valuable, viable and well-loved local nursery used by staff of HMRC and local parents alike.

The Petitioners therefore request that the House of Commons urges Her Majesty's Treasury to reverse the decision to close Nippers Nursery.

And the Petitioners remain, etc.


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Sergeant Nightingale

Motion made, and Question proposed, That this House do now adjourn.—(Greg Hands.)

7.1 pm

Mr Julian Brazier (Canterbury) (Con): In raising the case of Sergeant Danny Nightingale, it is a huge pleasure to see so many hon. Friends and hon. Members present. Indeed, some of them are hon. and gallant Friends. It is a particular pleasure to see on the Government Front Bench my hon. Friend the Solicitor-General, the Minister of State, Ministry of Defence, my right hon. Friend the Member for Rayleigh and Wickford (Mr Francois)—both of whom are extremely dedicated Ministers—and my hon. Friend the Member for Crewe and Nantwich (Mr Timpson), who is, of course, the relevant constituency MP, but who, as a Minister in another Department, cannot take part in the debate.

I want to make it clear that it is no part of my submission to suggest that special forces soldiers are in any way above or outside the law of the land. Instead, I shall argue that particular failings in this very hard case have led to a particular injustice. As a result, a dedicated and extremely brave man is in military detention, and his wife and small daughters face potential eviction from their family home, because they are unable to pay their mortgage.

Military justice was consciously modelled on civilian criminal justice. Originally, 12 officers echoed the 12 householders of repute on a jury, although the number became more commonly five 100 years ago. In the past 20 years, under pressure from the European Court of Human Rights, the system has been turned on its head and today a judge advocate chairs the court with up to five regimental officers who are no longer allowed to ask direct questions. My particular concern with regard to Sergeant Nightingale’s case relates to a further problem resulting from the abandonment of the old military justice principle that the composition of the court should at least in part reflect any special circumstances of the prisoner wherever possible. For example, in an aviation case there should be at least one pilot on the court panel. In the case under discussion, nobody on the court panel had any connection to special forces, the relevance of which will emerge in a moment.

The facts are as follows: Sergeant Danny Nightingale was presented with a Glock pistol in Baghdad in 2007 by grateful Iraqi colleagues. He returned early to this country from operations, accompanying the bodies of two comrades killed in action. A comrade packed his kit and it was returned to the UK under the supervision of the military police, who have a specific duty to check that there are no weapons in the equipment. The locked kit box sat in a cage that was also locked for two and a half years in his barracks. It was eventually moved, in its container, to the Army accommodation that Danny Nightingale shared with another sergeant.

Meanwhile, in 2009, Danny collapsed on a marathon that he was doing for charity in south America, suffering from a tropical illness that damaged his brain, affecting his memory. In 2011, when he had somehow managed to talk his way back on to operations, now in Afghanistan, the police raided his military digs after a tip-off from the other sergeant’s wife, who was in dispute with her

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husband. During the search, the police uncovered the weapon belonging to Danny Nightingale, which was still in its container in a cupboard, and a quantity of ammunition under his bed. I understand that the unit held an immediate weapons amnesty and that an embarrassingly large number of weapons turned up in the skip that was conveniently provided overnight.

Most parts of the Army have been engaged in dangerous and often bloody operations. Where special forces are different from the rest of the Army is that they do not leave that regime on coming back to the UK. Typically, as was the case with Sergeant Nightingale, they remain on very short notice to move for long periods, which entails keeping live ammunition in their kit. They are, of course, subject to the same law and the same internal rules as other parts of the Army, but the pressure and temptation on tired, overstretched men to take weapons and kit containing live rounds back to their accommodation is of a different order of magnitude. It is clear from the article by Sergeant Nightingale’s gallant former commanding officer, Colonel Richard Williams MBE MC, that the amnesty revealed that a number of people in the regiment had got into bad habits under the extreme pressure of operational tours abroad and the high-readiness cycle at home.

Let us look for a moment at the military equivalent of a public interest case, the service interest, which should be of interest to the Solicitor-General. We can split the narrative in half, with a break at the point when the weapon went outside the wire. It is undisputed that the weapon and ammunition came back under the supervision of others and sat for two and a half years in a locked cage in the base. Given the amnesty, surely no one could believe that that alone passed the service interest test, or even the public interest test. Indeed, my hon. Friend the Member for Beckenham (Bob Stewart) has revealed outside this Chamber that when he was presented with a working sniper rifle in Northern Ireland, he put it in a safe place in a barracks and took two years to get around to making it legal.

That leaves the second half of the process: the moving of Sergeant Nightingale’s kit and the depositing of it in his military digs a few months before he was redeployed. That occurred a long time after the incident in south America that had caused his brain damage, when he had somehow clawed his way back on to operations, dedicated soldier that he is.

At the heart of the transcript of the trial is a remark by the judge advocate:

“You say you forgot about it whilst it remained in your box in a cage. Whilst we accept that you gave little or no weight to it, we find it difficult to go on to accept it was out of your mind entirely. In 2009 you were involved in a very serious incident which resulted in serious injury, which we accept affected your memory to some extent. Nevertheless, mainly through your own determination, you had recovered sufficiently so that by October 2010 you were placed back on active service.”

One would have thought that that would have scored some brownie points.

Danny Nightingale has compelling medical evidence to show that his memory was severely impaired. Do we really believe that the second half of the offence—the transfer of the kit, en masse, to military digs after he had suffered the memory damage and when he was under huge service pressures—passes the service interest test? Is this what the military covenant is about? Does this

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amount to paying fair regard to the particular pressures of life in special forces and their effect on a man whose memory had been impaired and who had made his way back into action?

In his testimony, DCI Barnes of West Mercia police said:

“Apart from the unlawful possession no criminal intent had been established nor, more importantly, was it suspected...The two suspects—”

I have not dealt with the other sergeant—

“had fully co-operated with the investigation and provided detailed and frank accounts. Neither had any criminal record that might otherwise have influenced my decision-making process.”

Before the trial, I am told that Danny Nightingale was threatened by the judge advocate, using powers under the new system, that if he did not plead guilty, he would face a five-year prison sentence. It was as though he seriously believed that this case did not involve exceptional circumstances as set out in law.

Under pressure, Sergeant Nightingale pleaded guilty. Yesterday I visited him in military detention—Colchester is the one part of the military justice system that works really well. I found him subdued and saddened, but still with an impressive quiet strength that comes from a remarkable character. The judge advocate said in his reasons for sentence:

“you have an exemplary character…your offences come about primarily by way of your inaction.”

That is one way of putting it. This is a man who has served bravely for 17 years—the bulk of that time in the special forces—risking his life for his country again and again. As a medic he invented a new dressing, known as the Nightingale dressing, that is used in the British and American special forces and extensively in the NHS. He has never claimed a penny for it.

Sergeant Nightingale’s family are immensely grateful for the interest taken in this case by the Prime Minister, the Secretary of State for Defence and Members of this House. My hon. Friend the Solicitor-General has issued a statement, correctly stating that it would be improper for him to review a finished court case. I would be grateful if he would confirm whether, should an appeal be launched, it will be within his powers to discuss whether or not to oppose the appeal with the Service Prosecuting Authority. I urge him to review the service interest test for this case, and allow the planned appeal to go through unopposed.

7.11 pm

Patrick Mercer (Newark) (Con): I congratulate my hon. Friend the Member for Canterbury (Mr Brazier) on securing this debate, and thank him for allowing me to speak. I have sat on, and remanded men for, courts martial. I have allowed men to seek trial by court martial and I respect and understand the system. I see that it is not a normal court of law; it is not a judge and jury per se, but rather a panel of brothers, sitting in judgment on another brother, or indeed sister. My whole experience of courts martial has been one of admiration. I understand that Sergeant Nightingale has pleaded guilty to the charges laid before him, and that he has borne himself with dignity. I understand that his crime is a serious one. Paragraph 2.7 of the court-martial

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sentencing guidance of October 2009 points to operational effectiveness. It states that the court martial must take into account what is in the best interests of the service.

I have no doubt that, as Sergeant Nightingale has pleaded guilty, he expects some form of penalty to be imposed. I suggest, however, that that will operationally affect not just our special forces but every soldier, sailor, airman and Royal Marine who puts his or her life on the line for their country and understands that the country owes them a debt of honour. I ask my hon. Friend the Solicitor-General that, should an appeal be submitted, he will not seek to oppose it.

7.13 pm

Dr Julian Lewis (New Forest East) (Con): I am grateful to my hon. Friend the Member for Canterbury (Mr Brazier) for permission to take up a small slice of his time. This is the third occasion on which I have addressed this subject on the Floor of the House. Quite apart from the shocking individual circumstances that have brought as many as three dozen hon. Members to this House for an Adjournment debate—an exceptional outcome I am sure you will agree, Madam Deputy Speaker—one particularly disturbing part of this case has been the iniquitous effect of plea bargaining.

This was a man who believed he was innocent. He did not wish to plead guilty but did so in a plea bargaining process that led him to believe he would be given a light sentence, rather than face a heavy sentence of five years’ imprisonment—presumably without the 50% discount one gets in civilian jails in this country—if he continued to plead innocent but was found guilty. As a result, he was convicted, but unaccountably sentenced to 18 months, which, without remission, is equivalent to a three-year sentence given to someone in civil society.

I mentioned that I had raised the matter twice before on the Floor of the House. On the second occasion, I raised it with the Secretary of State for Justice, who wisely pointed out that, although it was outside the parameters of his normal area of responsibility, he would hope that a common-sense approach would be taken to such cases. He had the common sense to recommend common sense, which is what we are looking for from those on our Front Bench tonight. We are not looking for bone-headed rigidity, which can give not only military justice, but civil justice, an irreparably bad reputation in this country. When the appeal comes, it should not be opposed, and Sergeant Nightingale should be allowed to resume his career and his life with the honour he so richly deserves.

7.16 pm

Simon Reevell (Dewsbury) (Con): I am grateful to my hon. Friend the Member for Canterbury (Mr Brazier) for giving me the opportunity to speak.

Earlier this year, the court martial appeal court confirmed that the Attorney-General has a supervisory role as far as the Service Prosecuting Authority and the Director of Service Prosecutions are concerned. Ironically, it did so in a case when an unrelated search discovered trophy items and the SPA went out of its way to select charges that would protect the defendant from a draconian sentence at the end of his trial. The Attorney-General enjoys those powers because he has authority over anybody who prosecutes on behalf of the Crown.

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Forgive me, Madam Deputy Speaker; I should have declared that I have practised in the military courts for 20 years.

In light of the significant public concern regarding the circumstances in which Sergeant Nightingale was prosecuted, and given recent questions of judgment at the very top of the Service Prosecuting Authority—the contract of the Director of Service Prosecutions is not to be renewed—it would provide reassurance for all concerned if the Attorney-General reconsiders his decision of this morning not to conduct a review of the application of the service interest test. The decision to prosecute Sergeant Nightingale in respect of the Glock pistol has led to the debate and the circumstances we are discussing. The concern of a great many people is that, although on a simple analysis an offence may have been committed, the service interest was not properly considered before a decision was taken to mount the prosecution. If the Attorney-General takes the view that that is not so, all matters raised in the debate are for the court martial appeal court, but if his view is that the service interest test was not met, he would doubtless ensure that a view is taken by the prosecution not to oppose the conviction appeal in respect of the Glock pistol. The ammunition is perhaps a different matter, but the sentencing powers for that are different.

There are wider concerns. There is suspicion among many that there has been a miscarriage of justice, but there is a wider undermining of the military justice system when there is public outrage, and when the public question whether an individual should ever have been prosecuted in the first place. The Attorney-General is entitled to deal with that as soon as he chooses.

7.18 pm

The Solicitor-General (Oliver Heald): The Attorney-General is unable to be in the House this evening owing to a long-standing prior speaking engagement elsewhere in the country. I congratulate my hon. Friend the Member for Canterbury (Mr Brazier) on securing the debate. He has a great interest in defence matters and is respected in the House—he serves with great distinction on the Select Committee on Defence. I thank him for his work. He spent a number of years serving in the Territorial Army, and I am happy to reply to the debate.

In the light of public comments, it is understandable that colleagues are concerned. It is important that hon. Members know the facts. Sergeant Nightingale was charged with two offences: possession of a prohibited firearm, which is a serious offence, and possessing ammunition. At the hearing, he pleaded guilty to both offences. He was represented by a solicitor with considerable experience in this specialised field, and by an eminent Queen’s counsel.

As has been said, in 2011 a search was conducted of a house rented by the military where Sergeant Nightingale was living. This was an ordinary house in an ordinary road. It followed an allegation made against another resident. During that search 336 rounds of live ammunition were found in a box under Sergeant Nightingale’s bed. In the wardrobe was a Glock self-loading pistol—a prohibited weapon—which is designed to discharge 9 mm bulleted cartridges from a spring-operated box-type magazine. There were three empty magazines. The gun,

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and the ammunition for it, made a serious, dangerous and fully functional weapon. He was away from the house on operations and the weapon was not secure.

Sergeant Nightingale was interviewed by the police and explained that he had brought the pistol back on conclusion of operations in Iraq in 2007. He said that he had taken it from secured premises at his base to his home in January 2011. He accepted that he had obtained the ammunition in the course of his duties as a training officer and that he had not got around to handing it in, describing his administration and working practices as poor. It is right that he explained that the Glock came as a present from local nationals, that it was his intention to have it deactivated and mounted, and that he had not intended to keep the item in its present form.

Mr Brazier: My hon. Friend said that Sergeant Nightingale brought the pistol back from Iraq. He came back without his equipment, escorting the bodies of two comrades with his commanding officer, Colonel Richard Williams. His equipment came back separately—others packed it, under the supervision of the military police.

The Solicitor-General: I was describing what he said in an interview. Of course, it is true—he made this clear and it was not disputed, as far as I am aware—that the property was moved from secure military circumstances to his home and that he was aware of that.

On Sergeant Nightingale’s state of health, it is right that in October 2009 he was running a jungle marathon and suffered a brain injury. That was serious and it is good that he was able to make a recovery and was declared fit for duty. The court martial set out the key facts, which it took into account in sentencing. That is a public document and is on the judiciary website www.judiciary.gov.uk. I suggest that people read the whole of the court’s judgment. The judge advocate took into account the

“very great service over the years”,

and accepted a lot of what was said about the weapon and ammunition being kept in the mess and then moved to the home in January 2011, the point that my hon. Friend just made.

The reasons for sentence refer to the potential for very great harm when military weapons, especially combined with suitable ammunition, are kept in insecure accommodation. The court considered that he

“knew full well…that such items were never to be held insecurely at your home”.

The reasons for sentence are set out. It is important to bear in mind that with a prohibited firearm, which this was, Parliament has said that there is a minimum term of five years’ imprisonment unless there are “exceptional circumstances”. The court found that there were exceptional circumstances and imposed the lesser sentence.

We have an independent system of prosecution and trial, both for civilians and for members of the armed forces. The decision to prosecute was taken by the Service Prosecuting Authority. In deciding whether to prosecute, the SPA considers first whether there is a realistic prospect of conviction—clearly there was in this case, because there were full admissions and a plea of guilty followed—and secondly whether it is in the public interest and the service interest for that to happen.

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Parliament has decided that this offence is so serious that a minimum term of five years must be imposed, except in exceptional circumstances. The more serious the offence, the more likely it is that the public interest will favour a prosecution. That is what the code for prosecutors states. It is difficult to see how the prosecutor could ignore this strong message, sent by Parliament, underlining the seriousness of the offence.

Dr Julian Lewis: Did the police not decide that they did not wish to see a prosecution because no criminal intent was involved? Why should the military authorities take a different view?

The Solicitor-General: There is a protocol that decides where these cases are tried. The advantage from the serviceman’s point of view of being dealt with by court martial is that it often does not result in loss of rank or dismissal. In this case, the court martial said it hoped it would be possible, first, for the sergeant to keep his rank, and, secondly, that he would not be dismissed from the service. Had it wished, it could have recommended the loss of rank and service, but it did not. That was the decision.

My hon. Friend the Member for Dewsbury (Simon Reevell) made a point about the role of the Attorney-General. In the case he referred to, it is true that the court said that if a judge was unhappy with a prosecution and felt it was not necessarily in the public interest, the judge could refer it and say, “Look, you should discuss this with the Attorney-General.” But that is at the beginning of the case, before a conviction. In a case such as this, where there has been a conviction and the court has moved to sentence, the only way of challenging the decision is for the person concerned to appeal. Under this system, the sentence in the court martial is made not just by the judge advocate but by the five serving officers on the board. They all have an equal vote. It is worth making the point that there was Army representation and that two of the five were warrant officers.

Simon Reevell: I have the advantage of having been in the court at the time. On the court martial appeal, the court said, “The Attorney-General has a supervisory role, an example of which would be”—and it then gave that example. It was not a restrictive role in the way that might have been suggested.

The Solicitor-General: I have three minutes left, and superintendence is a complicated issue. There is statutory superintendence for the Serious Fraud Office and the Crown Prosecution Service, and there is a common law form of superintendence that applies to all prosecutions, but the Attorney-General cannot just say, “I’m stopping

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this prosecution.” The House would not want a situation where politicians can stop proceedings and where we move away from an independent prosecution service and an independent court system.

Like my hon. Friend the Member for Canterbury, I hold our armed forces in extremely high regard. They regularly put their lives at risk for our country, and we only recently remembered their sacrifice. Sergeant Nightingale has given great service over the years to the Army and the country, but the case was dealt with in accordance with the procedures and laws that Parliament has passed regarding the seriousness of weapons.

I am sure that my hon. Friend, in view of his own military service—this will apply to other hon. Friends here today—will understand instinctively the need to maintain the security of weapons and ammunition. In this case, possession of the weapon was prohibited by law because of the very nature of the weapon. It was being held insecurely, together with a large quantity of live ammunition, in an ordinary house, on an ordinary road. The way to challenge the conviction or sentence is to follow the correct procedure, which is to appeal.

Mr Brazier: May I suggest that my hon. Friend focuses on the Llewellyn case in Cardiff court, from as recently as 2008, where the Crown Prosecution Service, with none of the same mitigating circumstances, decided not to pursue the individual concerned for the two firearms found in the house?

The Solicitor-General: There is a whole range of circumstances in which cases can appear, but—

Mr Brazier: There is a service interest.

The Solicitor-General: But the first point I would make is that this is a particular offence—that of possessing a prohibited weapon, which we have said as a Parliament is an extremely serious matter. There were exceptional circumstances in this case; this is an exceptional man. However, if we want to challenge the decision of a court once it has been made—not at the beginning, when deciding whether to prosecute, but when the court has found the man guilty and sentenced him to a period of detention in a military facility—then I am afraid that has to be an appeal. That is our process; that is what we do in this country. We do not have politicians telling the independent judiciary—or, indeed, the independent prosecuting authorities—what to do. Much as I have a great deal of sympathy and understand the situation with this officer, I personally do not think that we can go around breaking important rules of that sort in this country.

Question put and agreed to.

7.31 pm

House adjourned.