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Lord Burnham: My Lords, I thank the noble Baroness for giving way. In the discussions on the Human Rights Act, the noble and learned Lord the

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Lord Chancellor broadly hinted that such derogations might be possible. Can the noble Baroness comment on that?

Baroness Symons of Vernham Dean: My Lords, if we take into account what we are trying to achieve in the Bill before us, we do not believe that that will be necessary. I should like to develop the point a little. The noble Lords, Lord Burnham and Lord Wallace of Saltaire, asked whether this would be the end of what we must do in terms of Armed Forces discipline in order to comply with the ECHR. I believe that there is still a question to be answered here. We have identified the main areas for concern, but we are continuing to examine our legislation and procedures. Should we need further legislation, it is hoped that remedial action will be taken in the next five-yearly Armed Forces Bill, due to be introduced in the next Session. However, for the moment we do not believe that any derogations are necessary.

The noble Lord, Lord Burnham, and the noble and gallant Lord, Lord Carver, also drew the attention of the House to the difficulties raised in terms of military discipline over issues of time and distance. Under the new legislation the commanding officer will remain closely involved with the pre-trial custody arrangements. Furthermore, he will need to be personally satisfied that the loss of liberty is justified following strict and limited criteria. Thereafter, the commanding officer will be required to take every reasonable measure to ensure that the suspect is seen by a judicial officer at the earliest possible opportunity. Obviously that will be subject to the exigencies of the service, but it should take place within prescribed time limits. For that reason, circumstances such as location, operational deployment and accessibility will determine how the suspect is brought before the judicial officer. Each case will be considered separately.

For example, if the case commences in barracks in the United Kingdom it should be relatively straightforward to arrange a personal hearing with a judicial officer, but if it takes place on operations in the Balkans, it may be--as it says in the Explanatory Notes to the Bill--that a video link is the only practical solution. We shall be looking at the circumstances on a case-by-case basis.

The noble Lord, Lord Wallace of Saltaire, raised the specific issue of homosexuality and the Armed Forces. The noble Lord may know that an urgent review is being undertaken by the MoD of our policy on homosexuality in the services and I understand that recommendations will be put to Ministers as soon as possible. However, the key point here is that if there is to be any change in policy, that will not require any change in the law. The issue is therefore not relevant either to this legislation or to any other possible legislation.

A number of noble Lords, including the noble Lord, Lord Burnham, and in particular the noble and gallant Lords, Lord Bramall and Lord Inge, raised questions about costs arising from the Bill. I should say that

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I was rather expecting those words from the noble and gallant Lord, Lord Bramall, who has written a detailed letter to me, to which he referred in his contribution to the debate. I hope to give him a little comfort in an exchange of correspondence shortly.

The estimated annual cost of implementing the changes proposed in the Bill will be about £6.5 million. As noble Lords have rightly suggested, those costs will arise from the establishment of a summary appeal court and the other new arrangements. The majority of the costs will arise from the need for additional lawyers, investigators and other staff to administer the new procedures. These will also include travel and subsistence costs, fees, witnesses' expenses and so forth. Obviously, the costs will absorb an appreciable part of the Armed Forces' legal aid scheme. The noble Lord, Lord Chalfont, asked specifically how these costs would be met. I am sure that the noble Lord will be sad to hear that the costs will fall to the MoD. However, they will be absorbed across a wide range of budgetary areas, each of which will manage their costs in terms of their overall priorities.

The noble Lord, Lord Vivian, also asked whether the measures in the Bill could be introduced by 1st October 2000. I can assure the House that it is proposed that the new system will be put in place by that date. It is important to point out to noble Lords that the Government believe that the measures outlined here are improvements to the current system. We would like to see them put in place sooner rather than later.

Any system of discipline that is to command the respect of the people to whom it applies must be capable of evolution. The changes that we propose to introduce here will ensure that the disciplinary system will remain in step with the recognition of individuals' rights and freedoms. Of course costs are important, but we must ask ourselves questions about the cost of upholding a serviceman or service woman's civil rights. I believe that that is an important point. The noble Earl, Lord Attlee, said it was a pity that there were not more noble Lords present to make that point. I strongly agree. It has been addressed by the noble Lord, Lord Wallace, and myself, but there is a strong argument which, perhaps for natural reasons, has not been fully addressed in today's debate.

The noble and gallant Lord, Lord Carver, concentrated his remarks on the summary appeal courts. I was asked why the Government have decided that offering the right to elect for trial by court martial is not sufficient to meet our needs in ECHR terms. The new system that we propose provides a further check which will enable an accused person to make a free choice as to the mode of trial, knowing that he will always be able to face an ECHR-compliant tribunal.

It is arguable that the present arrangements, which were drawn up with the convention in mind, rely too heavily on the individual creating a situation that is compatible with the convention. It depends on his or her choice as to whether he or she is tried by a compliant court. I understand that that was thought sufficient when the Armed Forces Act 1996 was being

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prepared. Our legal advice is that it is now considered that a right of appeal is also necessary to make the procedures associated with summary dealings compatible with the convention. So I am afraid that, for those who have raised the question of whether the summary appeal court is necessary, the answer is: yes, in terms of the evolving thinking on the matter since 1996, that is indeed the advice.

The overwhelming burden of your Lordships' remarks has been on the question of the impact of the proposals on the powers of the commanding officer. Questions were raised by the noble Lord, Lord Burnham, the noble Earl, Lord Attlee, the noble and gallant Lords, Lord Inge and Lord Bramall, and the noble Lord, Lord Vivian. The key to this legislation has to be the maintenance of the powers of the commanding officer. Central to the commanding officer's authority is his or her ability to exercise discipline. There is no argument between us on that point. The argument relates to whether or not the Government's proposals undermine that authority.

Perhaps I may remind the noble Lord, Lord Burnham, that the changes ensure that the commanding officer will continue to be able to administer discipline summarily. The changes enacted in 1996 opened up the possibility of many more courts martial. Individuals were given a much wider right to choose the way in which they were dealt with.

I also assure the noble and gallant Lord, Lord Bramall, that such statistics as we have indicate that in only a handful of cases do the accused elect to be tried by courts-martial. That seems to suggest that the commanding officer's powers to deal with cases summarily are still widely understood and respected, as was indicated by the noble Lord, Lord Vivian. They are possibly even preferred by some of the accused. For both the service and the individual, it is a means of ensuring that minor matters do not become unduly protracted, as many noble Lords indicated. We are confident that a right of appeal will not undermine that, any more than the existing right of appeal from courts martial has undermined the discipline system as a whole, providing that the new right of appeal will enhance the fairness of the system in the way that the Government believe are demanded by the dictates of simple justice. Conversely, not to provide a right of appeal would be to continue with arrangements that may not be compatible with the convention. That would allow the possibility of a very real challenge to the powers of the commanding officer, one which I imagine we should all wish to avoid if possible.

The noble and gallant Lords, Lord Bramall and Lord Craig of Radley, also raised the question of whether the Bill was breaking fundamentally new ground. I do not believe that that is the case. The legislation is not being forced upon us. It is clear that significant changes to the service discipline system and the Armed Forces Act 1996 addressed concerns about compatibility with the human rights convention even at that time.

We in this House agreed to ratify the European Convention on Human Rights. We agree with Parliament's decision to incorporate the main

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provisions of the convention in our domestic law. Therefore, I do not believe that we are having anything forced upon us. We are merely evolving the discipline Acts in order to comply with decisions that we have taken. We should do well to listen carefully to the wise words of the noble and gallant Lord, Lord Carver, regarding what might happen were we not to act.

There is another enormously important point. I say this particularly to noble and gallant Lords who have spoken. The Chiefs of Staff have been fully consulted on the changes and endorse the need for them. They have been keen to see the legislation brought forward as soon as possible. I sensed an implication that this was being done in the teeth of opposition from those in the military who know better. That is not the case.

The maintenance of morale was touched upon by the noble Earl, Lord Attlee. Of course it is vital to the services. The Government understand that the distinctive ethos of the Armed Forces, of which the noble Earl spoke so eloquently, plays an important role. Like the noble Lord, Lord Wallace of Saltaire, we have consulted those who know a great deal about this matter. I fully accept that noble and gallant Lords have done the same. There has been no suggestion from within the services that either the morale or the ethos of the Armed Forces will be adversely affected by these procedural changes. The Government do not believe that either the ethos or the morale of the services is quite that fragile.


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