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Baroness Hilton of Eggardon: My Lords, I am always reluctant to draw analogies between the police service and the armed services. They have very different roles and functions. But there are similarities structurally--hierarchy, uniform and a discipline code.

The amendment seeks to make a distinction for armed personnel on active wartime service. One way in which the police service differs from the armed services is that it is permanently on active, operational service. Therefore, discipline proceedings must be juggled between the ability to deal with the policing of riots, football matches, crime investigations and so on. In such emergencies it is nevertheless possible to have a single discipline code. That does not mean that a police officer has a lower standard of entitlement to human rights because he happens to have committed a discipline offence during a riot or some other emergency.

It is also extremely important when one has a discipline system to have a single discipline system that everybody understands. To have a dual system that applies in some circumstances and not in others could be extremely dangerous. Senior officers and commanding officers in the armed services exercise discipline through mutual respect and trust. It is very important that any discipline system is trusted, respected and understood. To have a dual system would militate against that.

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It has been said that the system laid down in the Bill would be sufficiently flexible to deal with the situation of being engaged on the frontline in Kosovo or even under the Arctic ice. With modern systems of communications it would surely be possible to be in touch with the judge advocate and receive his authority for custody if necessary.

My experience is, though, that when officers are actively engaged in an operational situation discipline problems fall away; there are very few in those circumstances. Therefore, the amendment should not be supported.

Lord Hoyle: My Lords, I always listen with great interest to the noble Lord, Lord Burnham. I always did when I was on the Front Bench, very often having to reply to him. I know the concerns that he expressed that exist in certain quarters in relation to when troops are on armed service. But a very good case has been put forward today. Modern communications overcome many of the problems that the noble Lord poses.

I think that what is really being said here concerns the need in the cases in question to get hold of the judicial officer, and that can be done by modern telecommunications. As has been said with regard to Kosovo, the commanders-in-chief from the theatre were almost daily on the news conference given by the MoD. Therefore, the logistical concerns expressed by the noble Lord can be overcome.

There are one or two other good arguments as well. My understanding is that the Armed Forces, and particularly the Chiefs of Staff, support the proposed measures, because they do not want two systems, which would lead to chaos and duplication. We should take on board the views of the Chiefs of Staff as well.

For all the good reasons that have been given, particularly modern communications, and the views of the Chiefs of Staff, I hope that the noble Lord, Lord Burnham, will reconsider the amendment and decide to withdraw it.

4.45 p.m.

Baroness Symons of Vernham Dean: My Lords, the noble Lord, Lord Burnham, made it clear in Committee that he was likely to continue his quest for a provision to be added that would lessen the impact of certain of the procedures envisaged in the Bill in certain circumstances. Part of his difficulty was to find a means of defining those circumstances. This amendment focuses on the Geneva convention of 1949 and the additional protocols of 1977 as a definition of those circumstances in which there could be what might be called an operational opt-out.

I should say that I understand the noble Lord's desire for such an opt-out. On the face of it, it appears to be very helpful to the services. We have certainly re-examined the issue since our debate in Committee; that I have done with colleagues in the Ministry of Defence. Since much of our discussion then was about the meaning of the word "war" and the relevance of Article 15 of the European Convention on Human Rights, we have looked at those issues in particular.

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In Committee the noble Lord, Lord Burnham, told us about the Geneva conventions and protocols, in the context of a possible definition of "war". As he will know, those international conventions apply to an armed conflict, whether or not a state of war is recognised as existing by all or any of the parties. Neither "war" on the one hand nor "armed conflict" on the other is defined in the Geneva Conventions or their Protocols, because it was not necessary to do so.

The position was accurately summarised by the noble Lord, Lord Campbell of Alloway, when he said,

    "there is no state of war unless there is a declaration of war with all that that entails",

adding that,

    "so many activities go on all over the world, and have done so since World War II, which are totally akin to war."--[Official Report, 16/12/99; col. 325.]

As it happens, the United Kingdom has not declared war for 59 years, when Japan entered World War II. All this goes to show the wisdom of the drafters of the Geneva Conventions, when they decided that it was what was actually going on that was of importance, and not what the parties decided to call what was going on. It is significant, too, that the UN Charter does not refer to "war" in any of its operative articles.

The meaning of "war" arose in relation to Article 15 of the ECHR, because a derogation can occur only

    "in time of war or other public emergency threatening the life of the nation".

We had cause to reflect on that quotation earlier this afternoon. The qualifying words--

    "threatening the life of the nation"--

obviously limit the availability of the power to derogate to extreme situations, and even then Article 15 only allows for derogation

    "to the extent strictly required by the exigencies of the situation".

The European Convention does not define "war"; nor is it necessary to do so. Whether military operations are a declared war, or are part of armed conflict where no war has been declared, the key question is whether the conflict that is going on threatens the life of the nation. That expression is not defined in the convention, but it has been interpreted by the Court of Human Rights, and it is clear that the primary task of assessing whether the test is satisfied is for the state concerned, subject, of course, to the supervision of the court.

I hope that that was not too long-winded and was sufficiently clear. I think it is important that we all define the parameters within which we are discussing the noble Lord's amendment.

A number of noble Lords have asked in particular whether the ability to derogate in respect of our summary discipline arrangements could have arisen in any of our recent military involvements. I was asked particularly about the Gulf and the Falklands in the Committee debate on 16th December, when I remember saying that this was a difficult point. In Bosnia, in Kosovo and in East Timor, United Kingdom ground forces were involved as part of

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international peacekeeping forces operating under UN mandates, and, of course, with the agreement of the countries concerned. It is difficult to see how such situations could fall within the power to derogate under Article 15.

In the Gulf War, we were also part of an international coalition, authorised by the United Nations, to use armed force to compel the removal of Saddam Hussein from Kuwait. Again, that was not a situation where the power to derogate could very easily be said to have been triggered. The Falklands were a little different in that the islands were, and still are, British territory--indeed, territory in which the convention applied--so it is perhaps more readily arguable that the right to derogate could in principle have been triggered. However, it would be wrong for noble Lords to assume that Article 15 powers to derogate would axiomatically be triggered whenever UK forces are fighting abroad. I am afraid that that is the flaw that lies at the heart of the noble Lord's amendment.

In any event, the conclusions we have reached on the subject of a possible opt-out are rather different from those of the noble Lord. Our conclusions reflect our confidence in the measures in the Bill. I am of course aware that the noble Lord's major concern is that the provisions of the Bill may impede operational effectiveness. These concerns are well intentioned, but they are misplaced. The proposals in the Bill have been designed, with the services, specifically so as to be compatible with all circumstances in which the services might find themselves.

I can assure your Lordships that operational considerations will remain paramount. There must be no misunderstanding on this point. This Government, like any other responsible government, will expect commanders to give appropriate priority to the operational imperatives of the situation and to the lives and security of all those under their command. I hope that is a sufficiently clear and unequivocal statement. There is no conflict between the unwavering intention behind what I have said and the procedures laid out in the Bill.

It may be that the concerns that there could be such a conflict reflect an exaggerated idea of how frequently some of the provisions in the Bill will need to be implemented. In the vast majority of cases, there will be no need to hold a suspect in custody for periods that will require approval by a judicial officer. It will be known whether or not there is sufficient evidence to prefer a charge well within 48 hours and even if there is not enough information on which to base such a decision within this time-scale, it does not follow that it is necessary to hold the individual in custody. The more extreme the circumstance that we envisage--such as the submerged submarine, referred to by the noble Lord, Lord Wallace of Saltaire--the easier it is generally likely to be to assemble sufficient evidence to prefer a charge.

Similarly, after charge, it will not usually be necessary to hold an accused in custody, so the need for a custody hearing will not arise. Where there is a

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requirement for such a hearing, the Bill provides that it should be held as soon as practicable. The noble and gallant Lord, Lord Vivian, drew that to our attention so cogently. This is dealt with in Clause 2. The formula "as soon as practicable" occurs on page 15, lines 19 and 20, for the Army Act; on page 17, lines 5 and 6, for the Air Force Act; and for the Naval Discipline Act, on page 18, line 38.

This formula gives us the flexibility that we need. Perhaps I may return to the scenario of the submarine, put forward by the noble Lord, Lord Wallace of Saltaire. If it were at the beginning of its patrol, and in the unlikely event that there was a need to hold an individual in custody, there would be no question of the submarine surfacing to enable the individual to be brought before a judicial officer. Such a hearing would have to wait until after the end of the patrol. That would be "as soon as practicable", as provided for in the Bill. I need hardly make the obvious point that, in any event, the accused would have very limited freedom of movement on the submarine in question.

After a summary hearing, there will of course now be a right of appeal. There will be time-limits within which this right is to be exercised and we shall be debating those later. But the Bill allows for applications to be made out of time--another important point--and it is difficult to imagine a more sustainable reason for such an application other than deployment on a submarine patrol or similar operational exigency. Therefore, I believe that flexibility is contained within the Bill before your Lordships.

If an assurance is being sought that in the most extreme operational circumstances the requirements of the Bill will somehow be set on one side, I cannot offer that. Indeed, that is to miss the point. A single system--and as my noble friend Lord Hoyle said, we need a single system--capable of operating in all circumstances reduces the scope for confusion and divisiveness. The system we have proposed in the Bill, because of its flexibility, provides that.

We are not posing commanding officers with the unpalatable dilemma of whether to implement the procedures envisaged in this Bill or, on the other hand, to maintain operational effectiveness. The Bill allows commanders to discharge both those responsibilities.

I again stress that we regard it as key to the proper fulfilment of our responsibilities that commanding officers must be given proper guidance in the application of these new procedures and the way in which they should exercise the flexibilities that are inherent in the Bill. We shall discharge that responsibility.

I ask the noble Lord to reconsider his amendment and, more fundamentally perhaps, the concerns which it attempts to articulate. Perhaps I may borrow a phrase of his and say that we have developed the Bill together with the people who know what they are talking about--those who are responsible for these matters in today's services. That is what gives Her Majesty's Government the confidence that with them

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we have been able to get the Bill right. I hope that I have given the noble Lord sufficient assurance to allow him to withdraw his amendment.

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