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Lord Campbell of Alloway: I am a trifle worried about this amendment. I have to be frank. I should have thought that the Judge Advocate General would be more appropriate to sift out the qualifications in paragraph (b). I therefore cannot quite understand why he should not be suitable to do that. I have listened with attention to everything that has been said, but I cannot quite understand why the Lord Chancellor should be preferred. That surely cannot have anything much to do with the naval discipline Act.

Lord Bramall: I ask the noble Lord, Lord Burnham, whether the purpose of this amendment is somehow to shift the burden of finance onto the Lord Chancellor. I have much sympathy with that. The noble Lord said that the defence budget was under considerable strain. As I said, I have great sympathy if that is the noble Lord's intention. At Second Reading the noble Baroness, Lady Symons, said that,

She is presumably saying that as these costs emanating from the Bill and the Convention on Human Rights will be obligatory, other things will have to suffer. This seems to be more than sad; indeed I should have thought it was irresponsible. I should like the noble Lord, Lord Burnham, to comment on the purpose of the amendment.

Lord Burnham: My Lords, I thank the noble and gallant Lord for his question. It is indeed my primary object not to withdraw this sum of money from the Ministry of Defence budget. At Second Reading I made it clear that I am not entirely happy about the perceived independence of judicial officers and judge advocates. Her Majesty's Government have suffered from the case of Hood v. UK--I am not so certain about Finlay v. UK--in which commanding officers were not considered to be independent. A judge advocate is a different being, but bearing in mind that a naval judge advocate sits in uniform I am not happy that his full independence will be universally recognised. However, as the noble and gallant Lord said, my first object is to reduce costs to the Ministry of Defence budget.

Lord Renton: My Lords, although I have immense respect for my noble friend Lord Burnham and all that he is doing on this Bill, like my noble friend Lord Campbell of Alloway I am sorry to say that I cannot support the amendment. The difficulty I see is that the Lord Chancellor already has an enormous range of duties. His duties do not extend to having knowledge and experience within the Armed Forces. Often previous Lord Chancellors had served in the forces. Indeed, Lord Chancellors served in each of the two

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world wars. The judge advocate knows the needs of the relevant service and therefore I believe that he should be appointed. On the other question which has only just been mentioned--I do not think that there is an amendment which affects it--I take the view that the judge advocate should be seen as a service person, although a lawyer--which many lawyers are, or have been--and that he should wear uniform in court. However, my main point is that I think that it is right for the judge advocate to appoint the legal people.

Lord Mackay of Drumadoon: I wish to make a short contribution on one of the issues touched on by my noble friend Lord Burnham; namely, the question of the independence of the judicial officer. I seek from the Minister either today, or later in writing, some indication of the terms of appointment and the security of tenure which such officers would have.

I raise similar questions about judge advocates themselves. I do so in view of a case that I have already mentioned in your Lordships' House--that of Starrs v. the Procurator Fiscal at Linlithgow--where the High Court of the Judiciary held that temporary sheriffs in Scotland--who, until recently, sat in terms of one-year appointments, which were renewable at the discretion of the executive--were deemed not to constitute an independent and impartial tribunal for the purposes of Article 6(1) of the convention.

I understand that it has not yet been decided whether that case is to be appealed to the Judicial Committee of the Privy Council. In the event that it was not successfully appealed, it might give rise to questions as to whether judge advocates and judicial officers who hold short-term appointments at the discretion of the Judge Advocate General were sufficiently compliant with Article 6(1) to avoid challenge in courts martial which may take place.

Is the Minister prepared to look at this issue also and to report to those of your Lordships who are taking part in the Bill prior to Report stage?

Baroness Symons of Vernham Dean: The noble Lord, Lord Burnham, told us that this was a probing amendment. I think the term he used was a "teasing" amendment. On the face of it, it is true that these are two rather innocent amendments concerning the responsibility for the appointment of judicial officers who will determine the need for custody prior to trial. In that regard, we would prefer to leave the Bill as drafted.

The Judge Advocate General and the Chief Naval Judge Advocate are responsible for appointing judge advocates to courts martial and, under the proposals of the Bill, to the summary appeal court. There seems little reason in logic for them not also appointing judicial officers to deal with the rather less formal custody hearings.

Incidentally, it is worth reminding ourselves that the Judge Advocate General's office is already staffed and generally funded by the Lord Chancellor's Department. I am grateful to the noble Lord, Lord Burnham, for kindly indicating to me some days ago

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that the amendments had a wider purpose. I suspect that this is where the tease comes in. The wider purpose concerns where the costs arising from the implementation of the changes in the Bill will fall.

I recall--the noble Lord reminded us--that this was an issue at Second Reading. We have to remember that most of the costs arising from the Bill, to which the noble and gallant Lord, Lord Bramall, referred, are associated not with the Judge Advocate General's office but with the need for additional staff in the Ministry of Defence. The major bulk of the costs does not fall in this part of the Bill but elsewhere. Therefore, while teasing us on this point, the noble Lord has not dealt with where the major costs of the Bill fall.

In responding to the kind help offered by the noble Lord, Lord Burnham, Ministers in the Ministry of Defence are always extremely grateful for any assistance, from whatever quarter it arises, in identifying others who might be willing to bear the costs of our activities. Any thoughts on that point will, of course, be studied with great verve on our part.

To a certain extent, the amendments imply that the Ministry of Defence does not, or perhaps should not, fully prescribe to the changes arising from the Human Rights Act. The noble Lord said that these changes were being "imposed upon us". Your Lordships should be in no doubt that that is not the case at all. The Act fulfilled the Government's collective commitment in relation to the European Convention on Human Rights. In that connection, the Ministry of Defence intends to be part of bringing the convention rights fully into the life of this country. The Ministry of Defence intends to deliver those rights to members of the Armed Forces, who have a right to enjoy them in the same way as other citizens of this country. We shall not deny them the legitimate rights that we are prepared to extend to every other section of the population.

This is an extremely important point. I have a feeling that there is an undercurrent and, given the language used by the noble Lord--"imposed"--the implication is that somehow the Ministry of Defence or the Armed Forces wish to stand aside from this. That is not the case. We are not apologetic about this. We see little mileage in seeking to deflect the costs of the changes in the Bill as if those changes were somehow an alien imposition on the Ministry of Defence.

The services have their own discipline system; we respect it. The services also accept that the costs associated with that discipline system are an integral part of service life; that part and parcel of the acceptance of these changes is accepting the costs that go with them; and it follows that accepting the costs means accepting the modifications to the system.

While I accept the perhaps somewhat light-hearted way in which the noble Lord raised these issues, there is another undercurrent here that we must address. This is not being "imposed"; it is a part not only of what Her Majesty's Government have taken right the way across government, but a part of the acceptance

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and the implementation of the Human Rights Act, in which the Ministry of Defence wants to play a full and active role.

Lord Burnham: With the greatest respect to the noble Baroness--and this time I do mean it--I do not accept that, had it not been for the Human Rights Act, the Armed Forces would have recommended for inclusion in a Bill all the terms in the Bill that we have before us today. Certainly on these Benches we fully recognise the need to see justice done to all ranks, but, had it not been for the Act, I doubt that this is the way we would have done it.

My purpose in tabling the amendment was twofold. I am not sure whether the noble Baroness fully noted the fact, but for the costs I relied on paragraphs 61 and 62 of the Explanatory Notes to the Bill. The notes on a great deal of the Bill are extremely helpful, but those two paragraphs do not make absolutely clear what costs arise as a result of the provisions. I do not feel that we should totally withdraw from any attempt to prevent such costs falling on the Ministry of Defence, which is already in a bad way.

As regards the specific part of the amendment, which suggests that judge advocates should be appointed by the Lord Chancellor, I shall withdraw that element of the amendment with considerable content in the light of what the noble Baroness said. However, in regard to the matter of costs, I hope that all parties will consider the situation further before we reach the next stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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