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Lord Burnham: My Lords, I think that I thank the noble Lord, Lord Hoyle, for his personal remarks. I may have to study them again, but I thank him. There is one point on which I disagree with him and other noble Lords; that is, on their reliance on modern communications in the circumstances we envisage if personal contact is not possible. We have previously talked about video links and goodness knows what else and I was amused to note that the Minister did not pray that in defence of her case. Perhaps some of her military advisers nudged her and told her that such bits of kit do not always work!

I thank the Minister for her clear explanation of her opposition to my amendment. Perhaps I may add to what she said about war. I raised the matter in an intervention in Committee. Different nations treat war in different ways. The United States, with which we are frequently closely associated, has a difficult definition of war. It is not practical to use a declaration of war as a possibility for what I am seeking. As I and other noble Lords have said time and time again, Article 15 is not good enough. It does something, but not enough.

The Minister understands what I am trying to achieve. However, listening to her and to other noble Lords I get the message that, although the end result is desired, the way in which I have approached the matter does not meet with favour. There is one more stage of the Bill. As a result, I shall go away. "I shall come back"--in the words of General Macarthur--but I hope that I shall be able to come back with an amendment which achieves what I am trying to achieve and which will meet with the approval of the House. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

Clause 1 [Custody without charge]:

Earl Attlee moved Amendment No. 4:

( ) to obtain authority to search him, his possessions or his accommodation").

The noble Earl said: My Lords, in moving the amendment I remind the House that I am a serving TA officer and I have powers of summary jurisdiction which I exercise on behalf of my commanding officer.

It occurred to me that the powers of a CO with regard to searches are quite extensive and that they might not be compliant with the ECHR. I have therefore drafted this probing amendment to enable us to debate the issue of searching servicemen or their property and to give the Minister the opportunity to inform your Lordships of any changes regarding the power to order or to undertake searches.

My amendment provides another reason for detaining a serviceman to those provided in Clause 1: to obtain the necessary authority to undertake a

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search. It is purely a probing amendment. Perhaps the Minister could tell the House what are the powers of the commanding officer and other officers to order a search, either formal or informal, and whether she is confident that there is no requirement to modify the current rules regarding searches as they obtained at the start of this Parliament. I beg to move.

Baroness Symons of Vernham Dean: My Lords, in order to investigate an offence effectively, it is axiomatic that searches of a person or his possessions and accommodation may be necessary. That may be the case in any investigation conducted by the service police, or indeed otherwise.

It is with that requirement in mind that the services were content in the Bill to adopt the long-established wording in the Police and Criminal Evidence Act 1984, without modification. That is from where the wording is drawn. New Section 75A in the Bill currently provides for someone to be detained without charge if there are reasonable grounds for believing that that is necessary for the purposes of securing or preserving evidence relating to an offence for which he is under arrest.

Because we cannot conceive of any circumstances in which it would be reasonable, in the context of a police investigation, to search a person, his possessions or his accommodation other than for the purposes of securing evidence, we believe that the current provision provides a wide enough definition and that the Bill does not need to be amended in the way that the noble Earl has suggested. I hope that with that explanation he will feel that his probing amendment has revealed sufficient reason as to why the Bill is drafted as it is and will feel able to withdraw his amendment.

Earl Attlee: My Lords, before I withdraw my amendment, will the Minister say whether there are any plans to amend the Queen's Regulations regarding searches?

Baroness Symons of Vernham Dean: My Lords, I am unaware of any such plans, but if it is purely a case of my ignorance rather than my wisdom on the point, I shall write to the noble Earl and let him know that I am wrong. However, I do not know of any such plans.

Earl Attlee: My Lords, I thank the Minister for that reply and for the time being I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 6 [Arrest during proceedings]:

[Amendments Nos. 5 to 7 not moved.]

Clause 7 [Judicial officers]:

Lord Burnham moved Amendment No. 8:

    Page 29, line 14, at end insert ("and shall enjoy security of tenure, in that they may only be removed from office in the same manner as circuit judges").

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The noble Lord said: My Lords, I find myself in some difficulty. This and other amendments have been put together by my noble and learned friend Lord Mackay of Drumadoon. My noble and learned friend is at the present moment in court in Edinburgh. He had thought that he would be able to be here at about this time--or about an hour ago, as he did not believe that the debate would continue for this long. However, at the beginning of the debate I received a message that he would not be with us. Therefore, with apologies to the House, I shall, if I may, blatantly quote from the brief that he has given me on the matter.

Amendment No. 8 relates strictly to a legal situation which has arisen in Scotland, which has got my noble and learned friend going--which makes it clear that I know even less about the matter than I should have done otherwise. My noble and learned friend says that the Government justify most of the Bill's clauses on the basis that they are required to meet ECHR commitments. He is concerned whether the provisions relating to judicial officers in Clause 7 and the existing law relating to the use of judge advocates are convention compliant. In both instances, the factual basis for his concern and mine in moving the amendment is that they may be appointed on short-term, temporary and renewable contracts. That raises the issue of whether the involvement in court martial procedure means that the provisions of Article 6(1) are being breached. It grants an entitlement to the determination of any criminal charge by,

    "an independent and impartial tribunal established by law".

In Committee, my noble and learned friend mentioned a criminal case decided by the High Court of Justiciary in Scotland, Starrs v. Procurator Fiscal, Linlithgow. In that case, the appeal court in Scotland held that trial before a temporary sheriff appointed by the Scottish Executive for one year, whose appointment on the one hand could be terminated at any time and, on the other hand, could be renewed from year to year, did not constitute compliance with Article 6.

The case was decided on 11th November 1999. When my noble and learned friend spoke in Committee on 16th December, there was still a possibility that the Crown would have marked an appeal to the Judicial Committee of the Privy Council. It has chosen not to do so. That means that the UK Government now must indicate whether or not they consider that the case was correctly decided. If so, how can temporary or part-time judges be acceptable in court martial procedure? If not, what are the grounds for saying that the case was incorrectly decided? It is no use saying that that was a Scottish case and has no relevance in England. Court martial law applies throughout the United Kingdom. In any event, the basic principles with which the Scottish court was concerned, both as to the facts and the convention, are just as applicable to court martial law.

My noble and learned friend is deeply concerned, as we have all been throughout discussion on the Bill, about whether the Bill is compliant with the convention and, as we have said, whether the Bill is over-compliant. But here we are asking whether it is

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compliant. I do not know whether the Minister can give an answer at this stage. If she cannot, I believe that it is a matter to which we should return at Third Reading when, I have no doubt, she will be able to give an answer. The amendment is an indication that we are not happy that the Bill achieves what it is said to be trying to achieve. I beg to move.

Lord Molyneaux of Killead: My Lords, I warmly agree with what the noble Lord, Lord Burnham, has just said; in particular, that Her Majesty's Government will need to take the lead in regularising the matter of part-time sheriffs, judges and justices of the peace. As the noble Lord said, a complaint was made recently which was mentioned in this House by a number of noble Lords from the opposite Benches. A fairly important case was rejected by the European Court on the basis that it had been insufficiently decided and, therefore, was null and void.

The noble Lord, Lord Burnham, has said that the matter goes much wider than the ramifications of this Bill. I suggest that it will affect, as he correctly said, all parts of the United Kingdom. For example, the phrase "part-time judges" will apply to Northern Ireland. Noble Lords will forgive me for dragging in that obscure part of the United Kingdom!

At an earlier stage in my career I served for 15 or 20 years as a justice of the peace. The highlight of my career was that I presided over the initial stages of a murder trial. I have raised a question in relation to this matter but have not been able to obtain an answer. I do not direct that at the noble Baroness, who has been very sympathetic and courteous throughout. However, I want to place on the record that currently my successors as justices of the peace are all part-time justices. Certainly, they provide that service--for example, signing summonses and hearing cases--in their spare time and sometimes at the expense of their careers.

However, unless we as a Parliament--I include both Houses--are extremely careful, I am afraid that we may find ourselves in a situation where dozens of trials will collapse by reference to the European Court on the insufficiently decided formula simply because, at some stage, the decision was taken by someone who, in the past, was appointed quite legally and who believed himself to be authorised by the Crown to hear and decide criminal cases. When the lid comes off, we shall see that a whole range of well-meaning people at different levels have presided over the dispensing of justice when, in the eyes of the European Court, they were not entitled to do so.

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