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Baroness Symons of Vernham Dean moved Amendment No. 39:


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The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 40 through to 65. Again, I should like to emphasise that the basis for these amendments is to ensure that as much flexibility as possible is available to the armed services in the day-to-day administration of the provisions contained in the Bill. Indeed, that applies in exactly the same way as applied to the group of amendments that I have just moved and reflects the same argument.

I should also like to remind Members of the Committee that, once again, the number of amendments results from the need to table identical amendments across all three service discipline Acts. As with Clause 4, these amendments devolve responsibility or jurisdiction for certain actions to others to cater for instances where there might be difficulty in contacting an individual at short notice. Therefore, the first change made to Clause 6 is designed to overcome the practical difficulties of directing the arrest of the accused that might exist after finding and at any time when he is awaiting sentence.

As drafted, after finding but before sentence, the courts martial may direct the commanding officer of the accused to give orders for the accused's arrest. However, if the court adjourns for any reason, it may disperse temporarily. Therefore, to avoid the obvious difficulties of recalling all three--or more--members solely to direct arrest if it seems necessary, the amendment vests the power of arrest with the commanding officer for these purposes. I believe that that meets the sort of flexibility that I know is very dear to the heart of the noble Lord, Lord Burnham.

The second change arises from a potential difficulty which may arise if the judge advocate decides to direct the commanding officer to order the accused's arrest. In practice, it is unlikely that the accused's commanding officer would be present at the trial. It may be very difficult to contact him at that particular moment, especially if he is based overseas. Therefore, the amendments widen the provision to give the power of arrest to those who are already empowered under these Acts to arrest someone for committing an offence. This definition includes the commanding officer. The amendment does not allow the power to be exercised other than at the direction of a judge advocate.

Finally, the amendments have been made to ensure that any direction for the arrest of the accused will remain valid, even though the court has subsequently had to be dissolved for whatever reason. The amendments also clarify that the first custody review held after the arrest of the accused shall be dealt with by the judge advocate who gave the original direction. Any subsequent reviews that are necessary may be heard by any judicial officer. I beg to move.

On Question, amendment agreed to.

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Baroness Symons of Vernham Dean moved Amendments Nos. 40 to 65:


    Page 26, leave out lines 15 to 20 and insert--


("(2) Subject to subsection (3A) below, subsection (3) below applies between the commencement of the trial of the accused by court-martial and the announcement of the court-martial's finding on the charge or every charge against the accused.").


    Page 26, leave out lines 22 to 24 and insert (", the judge advocate,").


    Page 26, line 26, leave out from ("direct") to end of line 27 and insert ("the arrest of the accused; and any person with power to arrest the accused for an offence against a provision of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this subsection.").


    Page 26, line 27, at end insert--


("(3A) Subsection (3) above shall cease to apply (but without prejudice to any direction already given by virtue of that subsection) if the court-martial is dissolved.").


    Page 27, line 12, leave out ("or court-martial").


    Page 27, line 13, leave out ("ordered") and insert ("made").


    Page 27, line 13, leave out from ("before") to ("and") in line 14 and insert ("him),").


    Page 27, line 15, after ("with") insert ("by him").


    Page 27, line 21, after ("with") insert (", or is awaiting sentence for,").


    Page 27, leave out lines 26 to 31 and insert--


("(2) Subject to subsection (3A) below, subsection (3) below applies between the commencement of the trial of the accused by court-martial and the announcement of the court-martial's finding on the charge or every charge against the accused.").


    Page 27, leave out lines 33 to 35 and insert (", the judge advocate,").


    Page 27, line 37, leave out from ("direct") to end of line 38 and insert ("the arrest of the accused; and any person with power to arrest the accused for an offence against a provision of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this subsection.").


    Page 27, line 38, at end insert--


("(3A) Subsection (3) above shall cease to apply (but without prejudice to any direction already given by virtue of that subsection) if the court-martial is dissolved.").


    Page 28, line 21, leave out ("or court-martial").


    Page 28, line 22, leave out ("ordered") and insert ("made").


    Page 28, line 22, leave out from ("before") to ("and") in line 23 and insert ("him),").


    Page 28, line 24, after ("with") insert ("by him").


    Page 28, line 30, after ("with") insert (", or is awaiting sentence for,").


    Page 28, leave out lines 35 to 40 and insert--


("(2) Subject to subsection (3A) below, subsection (3) below applies between the commencement of the trial of the accused by court-martial and the announcement of the court-martial's finding on the charge or every charge against the accused.").


    Page 28, leave out lines 42 to 44 and insert (", the judge advocate,").


    Page 28, line 46, leave out from ("direct") to end of line 47 and insert ("the arrest of the accused; and any person with power to arrest the accused for an offence under Part I of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this subsection.").


    Page 28, line 47, at end insert--


("(3A) Subsection (3) above shall cease to apply (but without prejudice to any direction already given by virtue of that subsection) if the court-martial is dissolved.").


    Page 29, line 29, leave out ("or court-martial").


    Page 29, line 30, leave out ("ordered") and insert ("made").

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    Page 29, line 30, leave out from ("before") to ("and") in line 31 and insert ("him),").


    Page 29, line 32, after ("with") insert ("by him").

On Question, amendments agreed to.

Clause 6, as amended, agreed to.

Clause 7 [Judicial officers]:

Lord Burnham moved Amendment No. 66:


    Page 29, line 36, leave out ("Judge Advocate General") and insert ("Lord Chancellor").

The noble Lord said: This is, in part at least, not so much a probing amendment as a teasing amendment. However, it has a specific and definite purpose which is not part of the teasing. The amendment provides that judicial officers shall be appointed by the Lord Chancellor and not by judge advocates. Judge advocates are appointed by the Lord Chancellor. We believe that the Government will agree that it would be more compliant with the convention that judicial officers should be appointed in the same way. I hope that the Minister will be able to accept the amendment in that context.

We have to think about the independence of judge advocates. At Second Reading I believe I said that in several cases which have come before the European Court it has been thought that commanding officers are not independent and that therefore the Bill should propose someone who is independent. However, I raised the point that naval advocates are uniformed officers. I cannot see how any normally bone-headed jack tar will notice the difference between his commanding officer, who may be a lieutenant commander, commander or captain, and a judge advocate who is wearing the same uniform and may have roughly the same insignia round his sleeve. It has been made clear that judge advocates are not members of the Armed Forces. However, I believe that we have a serious problem here which I ask the noble Baroness to consider.

My amendment proposes that these appointments should be made by the Lord Chancellor. It is not uncommon for the Lord Chancellor to make judicial appointments and when he does so quite often the salary and fees come out of the relevant departmental budget, especially in relation to tribunal chairmen. I ask the noble Baroness to consider that there is the appearance of a lack of independence. However, I turn to the teasing part of my amendment--although I mean it quite seriously--of which I have given the Minister notice. At Second Reading a number of noble Lords expressed grave concern that the whole of this Bill would constitute a considerable disadvantage to the defence budget. I believe that the noble Baroness mentioned a figure of about £6 million; we have mentioned a figure of about £9 million. However, the exact sum does not matter.

I totally agree that it is important that members of the Armed Forces should recognise that they are being fairly treated by the law. Nevertheless, this legislation is to be imposed upon us. As I pointed out in my earlier Starred Question to the noble Baroness, it seems to us that the Armed Forces are in serious financial problems and therefore it seems wrong that the

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European convention and Home Office legislation should force additional costs upon the Ministry of Defence budget. I ask the noble Baroness to consider those points. I beg to move.


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