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Lord Bramall: I am obliged to the Minister for giving way. Does the noble Baroness accept that the wars in the Falklands and the Gulf would meet the conditions she mentioned?

Baroness Symons of Vernham Dean: That is a difficult point. As the noble and gallant Lord will know far better than I do, the declaration of a state of war has very specific legal implications. We can be in armed conflict without necessarily being at war. Indeed, it is often not in the interests of the United Kingdom when we are in armed conflict to elevate that to the level of declaring ourselves to be at war because of the difficulties that would emerge in the way that third party countries would have to treat the United Kingdom.

Of course there are circumstances where there are armed conflicts but where, as the noble and gallant Lord knows, and as has been clear in some recent conflicts, we do not declare war because of the difficulties that would arise with other legal relationships were we to do so.

Lord Burnham: I apologise to the Minister for interrupting her yet again. However, I must point out to her that in a debate in your Lordships' House earlier this week we touched on the difficulties of deciding what is a state of war. The Americans, who are normally our allies, have very different legislation on what is or is not a state of war. With respect, I do not think that her remarks to the noble and gallant Lord apply in those circumstances.

Baroness Symons of Vernham Dean: I agree with the noble Lord that there are different interpretations of a state of war. During the course of debates today perhaps I may ask my officials to ensure that I have placed in my hand the internationally agreed definition--I believe that there are such conventions--so that that is available to us. That may give us some help on the issue.

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I was referring to the passing of the Human Rights Act. When we discussed this legislation at Second Reading a number of noble colleagues referred to my noble and learned friend the Lord Chancellor who spoke on behalf of the Government at that time. My noble and learned friend said that there will be situations in which special considerations would have to apply to the Armed Forces because of the nature of their work. He added that it would be a matter for the Armed Forces to look at each situation on its merits and ensure that any actions they took were consistent with the convention rights as they would be applied to the particular circumstances of the case.

I was concerned during Second Reading that some noble Lords were perhaps tempted to believe that somehow that represented a kind of green light for the services to stand aside from the convention in the sense of this amendment, and some of the comments at Second Reading. The noble Lord shakes his head; I am happy to leave that point for the moment.

Having dealt with the point of principle, which is laid out in Amendment No. 2, perhaps I may turn to Amendment No. 14.

Lord Campbell of Alloway: I am obliged to the noble Baroness for giving way. Before leaving Amendment No. 2, I want to point out that, as regards war under public international law, there is no state of war unless there is a declaration of war with all that that entails. But so many armed activities go on all over the world, and have done so since World War II, which are totally akin to war. The situation is exactly the same, as are the questions of command and discipline, as in an emergency.

Therefore, when the noble Baroness examines the issue with her officials, will she not draw some artificial, legalistic distinction in public international law, but have regard to the practicalities on the ground?

Lord Craig of Radley: Perhaps I may add to that point. Servicemen who in recent years have operated in Kosovo and elsewhere have frequently been "on active service". That is their understanding and I believe that to be the position.

12.45 p.m.

Baroness Symons of Vernham Dean: I understand your Lordships' concern that there is no artificially restrictive position over what might be thought of as "a state of war" when we are considering the lives of servicemen who are engaged in active operations where there is an identifiable enemy. I undertake to try to help the Committee a little more on that specific point during the course of today's debate.

I turn to Amendments Nos. 3 to 14. I realise that they are the logical consequence of the wishes of the noble Lord, Lord Burnham, and the noble Earl, Lord Attlee, to ensure the effectiveness of the summary discipline procedure in operational circumstances. However, their amendments would insert provisions in the Bill that would allow the commanding officer to

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hold an individual in custody for an indeterminate period without ever having charged him with an offence. That would be the effect of the amendments.

There is no doubt in my mind that they are clearly and unequivocally incompatible with the provisions of the European Convention on Human Rights. No derogation from the convention would save them because, as I explained in relation to Amendment No. 2, we would 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 reaction in the circumstances.

I appreciate that the purpose of the amendments is benign: to simplify matters for the commanding officer at times when he or she has other pressing pre-occupations. However, I believe that we can address the noble Lord's legitimate concern. First, the Bill allows some latitude to extend the time before an individual is brought before a judicial officer, if the 48 hours provision is impracticable. That is proposed in new Section 75C(5) of the Army and Air Force Acts 1955 and new Section 47D(5) of the Naval Discipline Act 1957 as inserted by Clause 1.

Secondly, we in the Ministry of Defence are obviously planning how the provisions of the Bill will be implemented in practice. That is not going on in an abstruse part of the Ministry of Defence where only those who know a great deal about personnel management are to be found. It is being actively pursued by serving Army, Navy and Air Force officers; those who have current experience of dealing with men and women in the field.

The Bill provides for the use of television and other links. The thinking is very much along the lines that such resources will be used to the full, particularly in the types of conditions which are of great concern to the noble Lord and others. But for many, many months, work has been undertaken in the Ministry of Defence on how the practical measures, which we all understand, can be met and how the operational integrity of the Armed Forces can be preserved if the Bill is passed.

I turn to Amendment No. 77 tabled by the noble Lord, Lord Burnham, and the noble Earl, Lord Attlee. Like the amendments tabled to Clause 1, the amendment is not acceptable to Her Majesty's Government because it would insert provisions in the Bill that would allow the commanding officer to hold an individual in custody for an indeterminate period without ever having charged such an individual with an offence. I do not believe that we would be able to justify such an onerous measure in any circumstances.

When considering these amendments, it is important for us all to remember that concern to make the Armed Forces work as well as they can is not exclusive to your Lordships' House. It is under active consideration in the MoD and by current serving Army officers. Therefore, I say to your Lordships that, while the Armed Forces are determined to make the new procedures work, they are equally determined not to allow operational effectiveness to be jeopardised. Of

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course that is the case; that is their business. They do not want a discipline system that functions in one way in certain circumstances and in another way in other circumstances. They do not want a discipline that is divisive between those who would be caught by a derogation and those who would not.

We in your Lordships' House often talk about our respect for the brave men and women in our Armed Forces. I believe that we all need to do some joined-up thinking about the issue. We need to consider the import of such amendments on the perceptions of the men and women in our Armed Forces who will be subject to the disciplinary codes. The discipline system must be acceptable not only to the commanding officers but to those under their command. The men and women in our Armed Forces have rights, too, and we must respect the rights of those individuals.

I do not consider that the introduction of measures which would allow indefinite incarceration without charge and without trial is compatible with the kind of disciplinary system we need to see in our Armed Forces as we enter the next millennium.

Lord Renton: In view of the Minister's comments about being subject to the European Convention on Human Rights and having implemented that with the 1998 Act, perhaps I may remind her that, as soon as the then government of this country signed the convention, the people of this country became subject to it and had rights under it. However, they could not enforce them except by going to the European Court of Human Rights. That was why, unlike some of my noble friends, I felt that the Government were fully justified in having the convention enforced by our courts.

If I remember rightly, in 1952 the then government signed the convention. It could be said that all the problems to which the Minister referred have been in existence since then, but that has not stopped one government after another deciding to enact our own law independently of the convention. Given all those years of--if I may use the expression--"co-habitation" between two important matters, are the Government fully justified in now saying that because of the convention there can be no question of Army discipline asserting itself even on active service?

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