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Lord Lester of Herne Hill: My Lords, I agree with the noble and gallant Lord. We all agree about the common objectives; the question is one of means. It is quite clear from Article 11(2) that the convention applies to the Armed Forces. We agree about that.

Lord Campbell of Alloway: My Lords, is this not Report stage? We do not have points of order, but we do not have more than one speech. The noble Lord perhaps has not been here long enough to realise that.

Lord Bramall: My Lords, I, too, should hate to see the amendment of the noble Lord, Lord Campbell of Alloway, dismissed like that. It is an extremely helpful amendment.

Like my noble and gallant friend Lord Carver, I do not want to make it more difficult for the Chiefs of Staff than it is already. There is no question that,

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however necessary the Bill proves to be, it will be highly unsatisfactory in practice in many ways for the commanding officer and for the administration of justice, particularly on active service. I do not want to go over all the arguments again but I do want to ask the Minister one question: in view of the detailed legal arguments that the House has just heard from the noble Lord, Lord Campbell of Alloway, and in view of the very important observation made by the noble Lord, Lord Renton, can the noble Baroness put her hand on her heart and say that she has gone back to the legal advisers of the Ministry of Defence and asked them whether they must be quite as inhibiting as they have proved to be?

It has been suggested that some of these contrivances are not really necessary. We want to know that the Ministry of Defence is looking for some way of perhaps reconciling these two opposing issues. I know that the Chiefs of Staff are in a very difficult position; they certainly do not want to expose the various military procedures or in any way lose the powers of a summary court. But undoubtedly there will be problems. As has been said many times, the Bill will slow and confuse the administration of justice; it will undermine the authority of the commanding officer; it will be extremely difficult to administer, particularly on active service; and it will greatly add to the workload of the commanding officer and the various staffs involved at a time when they are already extremely stretched. One certainly does not want to do more than is absolutely necessary. I should like an assurance from the noble Baroness that she has looked at this matter again in a questioning manner and asked whether more could be done to rationalise these different points of view.

Lord Kingsland: My Lords, at Third Reading of the Human Rights Bill on 5th February 1998, the noble and learned Lord the Lord Chancellor said:


    "I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces. I have given an indication about willingness to consider designating military courts as the appropriate forum for the consideration of complaints on convention grounds by Armed Forces personnel. On that basis I invite the noble Lord to withdraw his amendment".--[Official Report, 5/2/98; col. 768.]

At the time the amendment in question was that of my noble friend Lord Campbell of Alloway. Will the noble Baroness look again at the amendment tabled today by my noble friend in the light of that statement by the noble and learned Lord the Lord Chancellor? Furthermore, can she tell your Lordships' House in what way the amendment of my noble friend differs from the aspirations of the noble and learned Lord the Lord Chancellor?

I listened to the speech of the noble and gallant Lord, Lord Bramall, with great interest. It seems that we can fix ourselves somewhere on the spectrum between the minimum necessary to be compatible with the human rights convention and the maximum possible. I agree with the noble and gallant Lord; I shall be interested to hear from the Minister where she believes us to be on that spectrum.

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Having listened to the noble and gallant Lord, Lord Carver, in Committee, I thought that his amendments to Clause 11 and Clauses 14 onwards were absolutely spot-on--to have the appeal to a court martial after the summary decision but before sentencing and to remove entirely the appeal from summary sentence. I submit to your Lordships that that ought to meet the requirements of the convention. It would also remove enormous difficulties for commanding officers. Above all, it would allow the commanding officer to retain that authority in peacetime which we know is so necessary to him if he must go to war.

In supporting the noble and gallant Lord, Lord Bramall, I urge the Minister to think carefully about whether she can take an initiative of some kind to remove both options so that the provision of one option would satisfy the criteria laid down by the convention.

Lord Vivian: My Lords, I should like to apologise to the House for not being present at the Committee stage of the Bill. Unfortunately I was ill. I am not a lawyer. Rather, I am speaking to the amendment as a former commanding officer.

I wonder whether this amendment, which would establish an Armed Forces human rights court, might add yet another level of bureaucracy, cause more expense and possibly extend the time for dealing with disciplinary offences when perhaps the existing military courts would be able to deal with them. During the past week I have read the reports of the Second Reading and the Committee stage, the revised Bill and the Explanatory Notes in considerable detail. I constantly put myself in the position of a commanding officer and, for that matter, the adjutant who is responsible for the staff work of dealing with court martial papers.

With all due respect to my noble friend Lord Campbell of Alloway, who has worked so hard on the Bill, I am not sure whether an Armed Forces human rights court would simplify the proposed systems in the Bill. A commanding officer will be able to deal summarily with military offences provided that summary appeals courts are established. That would then make summary dealings comply with the European Court of Human Rights. I may have missed the point here, but it seems to me that, although this may not be entirely satisfactory, the aim to ensure that the commanding officer retains his authority to deal summarily with military offences has been achieved. However, this will allow an accused to appeal against finding and sentence which, as many noble Lords have pointed out at various stages, might undermine a commanding officer's authority. However, an accused has always had the right to submit for redress of grievance and this has not undermined the authority of the commanding officer.

I do not believe that there is a better way than that proposed in the Bill to make trial by the commanding officer compliant with the European Court of Human Rights, or a better way to protect the rights of summary dealings. I do not believe that the staff work will be dramatically increased because the

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commanding officer will deal with the deputy judge advocate general's department in a similar manner to the way he now deals with the Directorate of Army Legal Services. In other words, the Directorate of Army Legal Services will release some responsibilities which the deputy judge advocate general and judicial officers will then take on.

If I was a commanding officer, I would willingly accept the proposals in the Bill to ensure that disciplinary offences could still be dealt with by the commanding officer as opposed, perhaps, to having them dealt with in the magistrates' court, which would be utterly disastrous.

Lord Burnham: My Lords, my noble friend Lord Campbell of Alloway has a habit, which he has used effectively on a number of occasions, of moving amendments to appear before Clause 1. This enables him to get in first and to generate a full-blooded debate, not only on his own amendment, but on the Bill as a whole. It is therefore his fault that we have had the benefit of a full-scale Second Reading speech from the noble Lord, Lord Lester, who, with his great knowledge and wisdom as a lawyer, has added to that a full-blooded Committee stage contribution.

The noble and gallant Lord, Lord Carver, has raised the important point as to the position, if this amendment is accepted, regarding the opposition in Committee by the noble Lord, Lord Chalfont, and a number of other noble Lords to the Question. That Clauses 11 and 14 to 25 should stand part of the Bill.

At an earlier stage in the debate the Minister said that one of the purposes of the Bill before us is to demonstrate that life has moved on since the introduction in 1951 of the European Convention of Human Rights, or indeed the original date of the existing Army Act 1955. However, with respect to the noble Baroness the Minister, I suggest that 95 per cent of the purpose of the Bill is to ensure compliance with the Human Rights Act and the European Convention on Human Rights. Throughout the discussions on the amendments moved by my noble friends and others runs the theme that we wish to ask the Government: does this amendment ensure that the Bill is compliant with the Human Rights Act and is it necessary for that Act? In that context, we shall be moving Amendment No. 23, which is an amendment to the Title of the Bill. However, we are now discussing the amendment of my noble friend Lord Campbell of Alloway, which seems, in spite of what may be said by my noble and gallant friend Lord Vivian, to simplify an appeals stage of the court martial procedure. It is in itself not the easiest amendment, but, with respect to the noble and gallant Lord, Lord Carver, it enables us to remove all these other clauses.

I am delighted to have the support of my noble friend Lord Kingsland, another noble Lord who has immense legal knowledge, whose views I trust implicitly. He and the noble Lord, Lord Campbell, have referred to the remarks of the noble and learned Lord the Lord Chancellor on what is now the Human Rights Act. What the noble and learned Lord said at

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that time gave absolute assurance that what we had was very nearly, though not quite, what we needed. However, the noble Lord, Lord Campbell of Alloway, has moved his amendment. It is an excellent amendment. I hope that the House will accept it.

4 p.m.

The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, the amendment proposed by the noble Lord, Lord Campbell of Alloway, revisits an issue that first emerged in your Lordships' House during the consideration of the then Human Rights Bill and has since been raised at the Committee stage of this Bill. I am grateful to the noble Lord for the way in which he has argued his case about his specific amendment and also for the opportunity he has afforded the House for a rather wider-ranging exchange.

At the Committee stage we established that the desire for this amendment arose from the debate on the Human Rights Bill in which my noble and learned friend the Lord Chancellor undertook to look into the question of designating military courts to deal with convention points arising in the Armed Forces. At the Committee stage I advised the House that the Ministry of Defence had given the proposition very careful thought, but in the end had decided against it for the reasons I then stated. I wish to make it clear that when I speak of the Ministry of Defence I am, as with all the other issues concerning the Bill, talking about a process of consultation with the services. Since the noble Lord tabled his amendment, I have of course sought further advice. I have, as the noble Lord, Lord Renton, put it, applied my mind. In the present case, the staffs of all three services were clear that, after careful consideration of the matter, they saw no justification for setting up, training and staffing such a court.

However, I should say that the proposition that they were focusing on concerned the possibility of convention points arising in isolation from disciplinary proceedings. This amendment, on the other hand, is concerned with convention points arising in the course of disciplinary proceedings. I think it is important to be clear about that distinction.

We do not consider there to be an issue where convention points arise in the course of proceedings. They can be raised in an accused's defence. If the accused is not content with the outcome of the hearing or trial, he or she has a right of appeal to a court which can deal with any convention points raised in the appeal. These appeal courts are within the service system--either the summary appeal court or the courts martial appeal court. In this respect, I believe that they satisfy the noble Lord's concern that service courts should deal with this kind of convention point.

As the noble Lord, Lord Lester of Herne Hill, said, we certainly do not need a new court even further up the hierarchy of service courts to deal with convention points alone. If an accused wishes to appeal from the decision of the courts martial appeal court on a convention point or any other point, he or she would

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be able to seek leave to appeal to this House in its judicial capacity. I have every confidence that the House would be fully capable of understanding any service factors that were relevant to the case, and we should of course appoint experienced lawyers to represent the service interest.

I mentioned that the services have examined the possible case for a designated military court to deal with convention points arising in isolation from disciplinary proceedings. Quite frankly, the services did not think that there would be enough business to justify its establishment. There is confidence that there will be very few convention points arising solely in isolation in the service environment. That expectation is not borne of complacency, but because it seems likely that most convention points which do not arise in the course of disciplinary proceedings will nevertheless be attached to another cause of action. For those that do arise in isolation, we still consider that the High Court would be the most appropriate place to deal with them. Again, we would make sure that the service interest was not overlooked by these courts, since we would be properly and appropriately represented.

I have to applaud the persistence of the noble Lord in his pursuit of the cause of creating new courts to deal with convention points in the services. I genuinely believe that there is no difference between the noble Lord's concern and our concern to get the right answers to the questions. However, we are quite firm in our view that there really is no need for such courts. All the various types of cases can be dealt with perfectly adequately elsewhere.

Moreover, we do not want to incur the expense involved in creating new courts for this purpose. Even an ad hoc court as described by the noble Lord--he said that it would be used as and when needed--would use resources better deployed elsewhere and, more importantly, would not gain the depth of experience necessary to do justice to the claims, experience which is readily available in the civilian judicial system.

The noble and gallant Lord, Lord Carver, explained why he will not pursue the amendments which he moved at the Committee stage. I am grateful to the noble and gallant Lord for his explanation and, if I may say so, not a little relieved that the advice he has received is so very similar to the advice I myself received.

I thank the noble Lord, Lord Lester of Herne Hill, for his intervention. His expertise on the European convention is among the best available in this country and is well known in your Lordships' House. I am sure that the lawyers in government service who have advised me, as well as those who have advised the noble and gallant Lord, Lord Carver, will be relieved in that regard.

The noble and gallant Lord asked about the derogation that is used in Schedule 3 to the Human Rights Act. The derogation in Schedule 3 is a real example of the use of a derogation under Article 15 of the convention. It is a derogation from the convention in order for Her Majesty's Government to rely upon

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the provisions of the Prevention of Terrorism Act. The reason for the derogation is that the situation in Northern Ireland might be such that it is in our view a public emergency threatening the life of the nation--to use the words of Article 15 of the convention itself. The noble and gallant Lord asked whether such a derogation can be used in times of armed conflict. The answer to his question is yes--if the armed conflict is a public emergency threatening the life of the nation.

The noble and gallant Lord, Lord Craig of Radley, made clear that his misgivings about the Bill, which he expressed cogently in Committee, were not because of a lack of concern about human and civil rights in the armed services. I, and I am sure all other noble Lords, accept that absolutely clearly, but I hope that what I am saying does to a certain extent help to satisfy some of his worries.

The noble and gallant Lord, Lord Bramall, asked me point blank whether I could say "hand on heart"--I believe those were his words--that I had been back to legal advisers. Yes, I can, hand on heart. I have discussed possible alternatives with legal advisers and with officials. I assure the noble and gallant Lord that I have looked at possible amendments in the way I undertook to the House I would. The advice I received was that we have the best possible formulation in front of us now, certainly the best that we in the Ministry of Defence have been able to come up with.


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