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Lord Carver: My Lords, I find myself in a difficult situation, not being a lawyer. It seems to me that in practical terms it would not be possible, under severe active service conditions, to apply most of the provisions of the Act. Therefore, to my mind, the amendments should be supported.

One of the essential elements when one is on active service--and I mean active service, not just peace-keeping--is that one must deal with offences quickly. The man must return to his duties with the least possible delay. I accept that, for example, in peacekeeping operations in Kosovo or somewhere like that it would be possible, although very difficult, to apply the provisions as they now appear in the Bill. But if one were involved in more intense operations of the kind envisaged within NATO--for example, the Gulf, if it had gone on for longer--the provisions of the Bill could not be made to work unless someone who committed an offence was automatically removed from the theatre of war, which would be very undesirable. I therefore support the amendment.

One must be very careful about defining "active service conditions". In the Second World War every charge against a soldier, even for stealing a loaf of bread, started off "WOAS" (When On Active Service). I understand that that has not been used for nearly a quarter of a century. While I am not an expert on legal phraseology, I believe that somehow provision must be made for operations of higher intensity when it would not be practical to apply the measures as now set out in the Bill.

Lord Bramall: Before I support the active service exclusion clauses tabled by the noble Earl, Lord Attlee, and the noble Lord, Lord Burnham, perhaps I may try to dispel one misapprehension which was aired or implied during Second Reading; namely, that invariably there is a conflict between justice and

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military discipline and, therefore, this Bill is necessary to strike a balance between those two essentials. I do not believe that that is the case at all. There may be some instances under operational conditions when justice must be a bit "rough". I can think of one example when I commanded a battalion on active service in the jungles of east Malaysia in a conflict against Indonesia. We experienced a rash of accidental discharges of weapons which constituted a great risk to our troops. I told the whole battalion that it should be fully aware in advance that if in future anyone committed the offence the punishment would invariably be 28 days' detention. It concentrated the mind marvellously and stopped that dangerous indulgence just like that. It was widely accepted as being necessary. In the circumstances, I believed that that was justice however difficult, if not impossible, it would have been to implement under the new Bill as it stands. At worst it saved possible injury and followed the two main principles of discipline: that the action should be consistent and that it should be thoroughly well understood. In any case, as the noble Lord, Lord Renton, pointed out during Second Reading, in such conditions discipline must come first.

If the whole Bill cannot be modified in the interests of service discipline--I trust that it can be as a result of what takes place later in the debate--I hope that it will be done at least in relation to active service conditions. Despite the views of the Adjutant-General's department or other personnel departments, I ask the noble Baroness to look again at the whole question of differentiation between active service and home service. It is under active service conditions that the innovations in this Bill would cause the most damage. Further, as my noble and gallant friend said, these measures would be largely unworkable.

Lord Burnham: Before the noble Baroness replies, particularly in view of the observations of my noble friend Lord Campbell of Alloway, perhaps she will deal with Amendment No. 2 separately from the others. I believe that that is concerned with the principle and the others with practicalities.

Lord Mackay of Drumadoon: Having heard what the noble and gallant Lords, Lord Carver and Lord Bramall, said, many noble Lords will be of the view that some solution must be found to the problem they identified; namely, that in its present form the Bill can create difficulty when troops are engaged on active service. Very wisely, they do not go as far as to say that it will always create difficulty but, based on their long experience, they envisage that the Bill as presently drafted may lead to such a problem. As a lawyer but layman in military terms, I suggest that a solution to the problem requires to be found because of the possible implications for the authority of the commanding officer of a battalion, the morale of the troops who serve under him and the effect on the execution of the military campaign on which they are engaged at the relevant time.

I was present for most of the Second Reading and have read through the whole debate in Hansard. I have not seen any effective answer to the concerns raised on

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all sides of the Chamber. If a solution to the problem is to be found, perhaps the noble Baroness is prepared to consider, with her officials and advisers, the regime introduced by the Armed Forces Act 1996 for the purposes of determining whether it is necessary to hold a field general court martial as opposed to a general or district court martial. Section 103A of the Army Act, which was introduced by the 1996 Act, provides that,

    "(1) Where an officer to whom this subsection applies--

    (a) is commanding a body of the regular forces on active service; and

    (b) is of opinion that it is not possible without serious detriment to the public service for a charge against a member of that body to be tried by a general or district court-martial,

    he may direct that the charge be tried by a field general court-martial".

Later provisions introduced by Schedule 1 to that Act provide that such a field general court martial can sit without having as one of its constituent members a judge advocate. Therefore, the Act introduces a two-stage test: first, the commanding officer is required to be in command of a body of the regular forces on active service; secondly, he must be of the opinion that in the particular circumstances with which he is confronted it is not possible without serious detriment to the public service for the normal form of court martial to take place.

I believe that a solution based on that general approach may be one way to address the practical problem repeatedly identified today and by speakers during the Second Reading debate. If it were a way forward it might apply not only to the clauses with which this amendment is concerned but also to some other provisions which clearly cause concern to noble Lords on all sides of the Chamber.

Lord Wallace of Saltaire: I do not have military experience, but as a civilian I have studied defence from the outside for some time. Part of the difficulty with this amendment is to try to imagine circumstances today in which active service involves considerable periods of time out of contact with one's command structure. I recall a Royal Marine telling me of an occasion during the occupation of northern Iraq after the Gulf War when a Dutch marine attached to a British Royal Marines commander at one point referred back to The Hague before accepting the order of a British senior marine. Someone remarked to me the other day that even if the Prime Minister did not want to talk to you when on active service it was quite likely that someone from the BBC, CNN or Sky News would pop up to ask a question.

I do not believe that the kinds of military operations in which we were engaged even 20 or 30 years ago, when operations in jungle conditions, submarines or elsewhere were necessarily much more autonomous, apply today. I struggle to think of circumstances on active service under which such a broadly phrased amendment could be needed. There may conceivably be some extreme cases where emergencies may apply. The amendment is extremely wide and seems to me undesirable.

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12.30 p.m.

Earl Attlee: I am grateful for the noble Lord's contribution. He identifies our concern about the principle of the need for military discipline. The noble Lord assumes that we shall never become involved in military operations which go horribly wrong. My great fear is that one day we shall be involved in military operations where we may be cut off from the command structure and MoD--and the noble Lord will be found to be wrong.

Lord Wallace of Saltaire: The most recent military operation which went horribly wrong was the Dutch involvement in Srebenica. Lack of communication was not part of that. Communications were extremely good. The failure to gain answers or reinforcements from outside was what was wrong in Srebenica. It was not a question of being out of touch.

Baroness Symons of Vernham Dean: I believe that the amendments have been grouped together because the noble Lord has a number of linked concerns about the operational effectiveness of the Armed Forces were the Bill to be enacted as it stands. The noble Lord has asked me to separate out the way in which I deal with what he describes as his point of principle on Amendment No. 2. I can then deal with the other amendments together if that is helpful to the noble Lord.

The intention of Amendment No. 2 is clear. However, I believe that the intention of Article 15 of the convention is clear, too. The article is quite specific in its provisions. Those are that any state may take measures derogating from the convention--and I quote, as did the noble Lord, Lord Campbell of Alloway--

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

and this may only be,

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

I believe it would be difficult to argue that the range of circumstances covered by the noble Lord's amendment would qualify for a derogation under Article 15. The noble Lord's amendment refers to "active service conditions". In another amendment they are defined as "active operational duties". I am sure that I do not need to remind noble Lords of the range of operational activities undertaken by our Armed Forces. They are all important. But I do not think any of us would suggest that they all amount to war. Of course they do not; nor do they all amount to dealing with emergencies which threaten the life of the nation.

Of course, we could try to argue that the operations in, for example, East Timor are of such a nature as to justify a derogation under Article 15 of the convention. This would be an issue on which we would ultimately need to persuade the Court at Strasbourg. We should have to demonstrate that we were at war or that the life of the nation was under threat. We should then have to demonstrate that our suspension of the relevant article of the convention was a proportionate act in the

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circumstances. I do not need to tell the Committee what expectation I have of the possibility of success in those circumstances. That was the point made by the noble Lord, Lord Campbell of Alloway.

I stress to the Committee that there are other issues at stake here. First, there is the Government's full commitment to the principles of the convention. The noble Lord, Lord Burnham, is right. This is an argument which goes to the principle of the legislation. It is the principle of being compliant with the convention that the Government seek to uphold in this legislation. The proposed amendment would run counter to that principle and to that policy as well as to the spirit and the letter of the convention.

Perhaps I may remind the Committee that it was in this Parliament, and not so very long ago, that we decided to commit ourselves to legislate upon the convention. I am sure that we shall have some discussions about the debate we had at that time.

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