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House of Lords

Tuesday, 22nd February 2000.

The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers--Read by the Lord Bishop of Blackburn.

Lord Joffe

Joel Goodman Joffe, Esquire, CBE, having been created Baron Joffe, of Liddington in the County of Wiltshire, for life--Was, in his robes, introduced between the Lord Judd and the Lord Haskel, and made the solemn Affirmation.

The Lord Chancellor: Leave of Absence

2.41 p.m.

The Lord Chancellor (Lord Irvine of Lairg): My Lords, before business begins, I take the opportunity to inform the House that I am to deliver the opening address at a British Council conference to be held in the Reichstag building in Berlin on Monday 28th February when the House will sit. Accordingly, I trust that the House will grant me leave of absence.

Armed Forces Disciplinary System: Personnel Rights

Lord Renton asked Her Majesty's Government:

    What steps they propose to take to cover the situation which might arise if members of the Armed Forces exercise their rights under the Human Rights Act 1998 in ways which conflict with service discipline.

The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, we recognise the importance of maintaining a sound system of discipline in the Armed Forces. The Armed Forces Discipline Bill includes measures to ensure that service personnel rights under Articles 5 and 6 of the European Convention on Human Rights are maintained in a way consistent with service discipline.

Lord Renton: My Lords, while thanking the noble Baroness for her attempt to answer the Question, perhaps I may remind her that when there is a conflict between any two branches of our statute law, it can only be resolved in our democracy by an Act of Parliament. It cannot be resolved, as she suggested, while the Armed Forces Discipline Bill is going through your Lordships' House, by advice from the Minister.

Baroness Symons of Vernham Dean: My Lords, I know that the noble Lord, Lord Renton, was consistent and assiduous in pursuing this point during

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the passage of the Bill through your Lordships' House. In introducing the Bill into the House I signed a certificate, which I did on advice, that nothing in the Bill was in conflict with the European convention. My honourable and right honourable friends in another place signed a similar certificate in introducing the Bill into another place. I remind the noble Lord that very often rights in the European convention are not absolute rights. I remind him that Article 11 says:

    "This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State".

So I think the noble Lord will find that there is not the absolute conflict which he fears may be the case. That is indeed my opinion and the opinion of my right honourable and honourable friends.

Lord Craig of Radley: My Lords, in the Armed Forces Discipline Bill the Government seek to ensure that the authority of the commanding officer is not undermined by the Human Rights Act 1998. Do Her Majesty's Government agree that there may be occasions when the interests of the service must take precedence over the individual human rights of the serviceman or woman? Will the Government undertake to defend any commanding officer who applies the provisions of the Armed Forces discipline Acts--for example, in the case of disobedience to a lawful command--against any charge brought against him by an individual in his unit under the Human Rights Act?

Baroness Symons of Vernham Dean: My Lords, there is nothing in the Human Rights Act or in the Bill currently under discussion in another place which prevents proceedings being taken for offences. When we discussed this matter in your Lordships' House I said that operational considerations would remain paramount. There should not be any misunderstanding on this point. The Government, like any other responsible government, will expect commanders to give appropriate priority to the operational imperatives of the situation and, of course, to the lives and security of those under their command. I do not believe that there is any conflict between that unwavering intention and the procedures set out in the Bill which your Lordships have discussed and which is currently in another place.

Earl Ferrers: My Lords, the noble Baroness said that she would expect a commander to give operational--I forget the words that she used. But her answer was far from clear. The noble and gallant Lord asked whether Her Majesty's Government would ensure that the Human Rights Act did not take precedence over the commander's decision. The noble Baroness's answer was not clear.

Baroness Symons of Vernham Dean: My Lords, I am very sorry. I shall try again. Operational considerations will be paramount. That is an unequivocal statement. I said that I did not believe there should be any misunderstanding on the point.

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We debated this matter fully in your Lordships' House when we were dealing with the Armed Forces Discipline Bill and I would not want to be misunderstood in any way on it. If I am being asked for an assurance that in some operational circumstances the requirements of the Bill may be set on one side, I cannot offer your Lordships that assurance. There is no operational "opt out", if I may put it that way, which was the point on which the noble Lord, Lord Burnham, pressed me very assiduously when we were discussing the Bill. The important point is that we have a single system here which is capable of operating in all circumstances. As I said, in all circumstances it is operational effectiveness--it is the commanding officer's duty to ensure that appropriate priority is given to the lives and security of those under his command--which must take priority.

Lord Elton: My Lords, in substance, the noble and gallant Lord asked the Minister whether the Government would defend commanding officers who were sued by junior members of the forces over orders that they had given. The noble Baroness's reply in substance, as I understood it, was that the Government could see no circumstances under which such a case would be brought. Were those circumstances unexpectedly to arise, could the noble and gallant Lord expect such officers to receive such governmental support?

Baroness Symons of Vernham Dean: My Lords, I cannot think of every possible exigency that might occur where the commanding officer's word was challenged. If I may say so, the noble Lord is asking me to gaze into the future in a way that is a little difficult for me to do. I have said that operational effectiveness is the crucial issue and, of course, where the commanding officer's discipline was being exercised in pursuit of that operational effectiveness, we would usually--most often--expect to be able to support the commanding officer. But I cannot say that on every single occasion we would always know that the commanding officer had been right. That really would be taking it a little too far. However, I hope that I have given a reasonably reassuring response to the noble Lord, Lord Elton, and to the noble and gallant Lord, Lord Craig.

Lord Chalfont: My Lords, does the noble Baroness agree that this is not entirely a matter of operational requirements but of a possible conflict between the authority of a commanding officer and the rights of a soldier or a junior under the Human Rights Act? The noble and gallant Lord's question is a very simple one. The noble Baroness ought to be able to look into the future to that extent. If the authority of a commanding officer is challenged under the Human Rights Act, will the authority of the commanding officer be upheld, or not?

Baroness Symons of Vernham Dean: My Lords, that is precisely why we dealt with the Bill in the way that we did--because such an issue would be a matter for

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the courts. The noble and gallant Lord asked me about the exercise of a commanding officer's disciplinary authority. What I have said is that, where that disciplinary authority, properly exercised, is in pursuit of operational effectiveness, we should expect that. The noble Lord, Lord Chalfont, is asking me to pre-judge possible decisions that a court might take.

Lord Burnham: My Lords, will it be a breach of the Human Rights Act or of the service discipline Acts if the Army refuses to kiss the IRA, as recommended by the Government?

Baroness Symons of Vernham Dean: My Lords, my noble friends are urging me that that question was somewhat wide of the mark. However, I am rather grateful to the noble Lord. He has raised a matter that appeared in the newspapers today and I am grateful for the opportunity to be able to say to him that we do not accept that there is any equivalence--that is an issue that has been raised--between legally held military weapons on the one hand and illegally held terrorist weapons on the other. Our position is that any reductions that we may make in our military presence in Northern Ireland should be justified purely in terms of the security situation. That is the kind of thing that I believe the House wants to hear, not the rather provocative phrasing of the noble Lord's question.

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