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Baroness Symons of Vernham Dean: As the noble Earl says, this clause deals with deserters and absentees who are taken by the civilian police before civilian magistrates. It provides that a magistrate may remand the individual,

Remand may implicitly be into custody or bail. The power to remand a person on bail is contained in Section 128 of the Magistrates' Courts Act 1980 and bail is defined as having the same meaning as in the Bail Act 1976.

The intention of the first amendment is to provide for conditions to be imposed on an individual if he is remanded on bail. As a civilian magistrate may impose bail conditions under the Bail Act 1976 which would apply in the circumstances, we do not think that the amendment is needed. Moreover, we believe that the effect is to narrow the purpose for which bail conditions may be imposed. The noble Earl's amendment might be positively unhelpful.

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The aim of the second amendment appears to be to place a greater responsibility on the magistrate to ensure that the accused is delivered into service custody. We believe that the wording we already have is more appropriate than that put forward by the noble Earl.

The purpose of the noble Earl's amendment is to provide that the magistrate ensures that those individuals absent without leave who find themselves before him do not disappear again into the ether. That is a sentiment with which the MoD, and the Armed Services in particular, naturally agrees, but we believe that the clauses as drafted allow the magistrate to impose whatever bail conditions he deems necessary in order to ensure that the accused can be safely delivered into service custody.

We do not believe that the amendments provide for anything more than what is already in the Bill. I understand that the noble Earl has tabled the amendment entirely benignly. However, we believe that the wording of the Bill is more effective than that which he proposes. On that basis, I invite him to withdraw his amendment.

Lord Burnham: The Minister says that the wording of the Bill is better than that proposed by my noble friend in Amendment No. 72. However, does she not agree that it is desirable to place an additional duty on a lay magistrate by providing that he must "ensure" that someone is delivered into military custody rather than merely "arrange" for that to be done? I have acted as an escort in such cases and I should have been happier to know that the magistrate had ensured that the man was turned over to me.

Baroness Symons of Vernham Dean: We can argue about the precise impact of "arranging" or "ensuring" that an individual is handed over. It seems to me that there is not a hair's breadth between us. If one is "arranging" to do something one is putting into place the necessary arrangements, thereby ensuring that they exist. To me, the word "ensuring" implies that one is "arranging". I honestly believe that the noble Lord is trying to see a distinction where none exists.

Lord Burnham: I do not believe so. "Ensuring" means that the magistrate is responsible, but "arranging" means that he probably tells Group 4 to do it.

Baroness Symons of Vernham Dean: I am bound to say that in "ensuring" he will probably tell someone else to do it--he is hardly going to do it himself. It is the magistrate's responsibility, as is effecting the arrangements. There may be a real difference between the noble Lord and myself, but I do not believe that it is substantial. Therefore, I hope that on reflection he will see that the responsibility placed upon the magistrate will be the same, whether one uses the word "arrange" or the word "ensure".

Earl Attlee: All the amendments I am moving today are probing. I must accept the fact that my speech may

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not have been well linked to the amendment before us, but the Minister did not say whether my scenario was far-fetched or whether it was a possibility. Can she comment on that?

Baroness Symons of Vernham Dean: I can. As with all hypothetical examples, it is theoretically possible, but it leaves out consideration of the wider context. Under the current system, we could well let Private Badjob be with his wife, girlfriend, or whoever, at her time of need. The Ministry of Defence and the Armed Forces are not vindictive. All justice systems seek to be as fair as possible by taking the wider picture into account.

Theoretically, yes, the hypothesis which the noble Earl asked us to consider is possible, but it must be put into the wider context of dealing with these issues as sensibly as possible and, while not in any way undermining discipline, recognising that compassion is an important part of that.

Earl Attlee: Of course I fully agree that compassion is an essential component of discipline. I thank the Minister for her comments and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

2.45 p.m.

[Amendments Nos. 72 to 76 not moved.]

Clause 9 agreed to.

[Amendment No. 77 not moved.]

Clause 10 agreed to.

Schedule 1 agreed to.

Clause 11 [Right to elect court-martial trial]:

Earl Attlee moved Amendment No. 78:

    Page 32, line 23, leave out ("Before") and insert ("After").

The noble Earl said: My Lords, in moving the amendment, it may be convenient if I speak also to Amendments Nos. 79 to 85.

My amendment seeks to reverse the effect of Clause 11. The noble and gallant Lord, Lord Carver, has a slightly different approach to the same problem, as he will oppose the Question that Clause 11 stand part of the Bill. I do not understand why the accused will be in a better and fairer position if he is able to elect to go for courts martial earlier, especially as he will now have the opportunity to appeal to a compliant court after summary jurisdiction. That is provided for under later clauses of the Bill.

At Second Reading I explained how it might well be disadvantageous for the accused to elect for courts martial when he was unaware that the commanding officer was minded to dismiss the charges. The CO will never prejudice his position by giving any indication, however informal, that he is minded to dismiss any charges.

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The ability of the accused to elect for courts martial is necessary in order to give the accused some protection against what I should call a "stitch-up". The problem is that the changes proposed by the Government do absolutely nothing to address that problem. I apologise to the Committee for not having tabled a suitable amendment to deal with the very real problem of the accused being put under unfair pressure to withdraw his election for courts martial. At a later stage I shall table an amendment to limit who can counsel the accused to withdraw his election for courts martial, but I do not expect the Minister to comment at this point.

The Minister will no doubt pray in aid Clause 12 which limits the courts martial to the powers which the CO would have had if the accused had not elected for courts martial. However, the Committee needs to understand that the CO's powers are extensive. For a minor case, the courts martial could apply a much more severe penalty than the CO would have applied. The CO will of course know the accused well and he can take all the factors into consideration when determining sentence. On the other hand, members of the courts martial must not have any knowledge of the accused. Furthermore, they are also well used to hearing well-constructed pleas of mitigation. Indeed, they will have heard it all before.

Will the Minister confirm that I am right in believing that members of a courts martial may knowingly apply a more severe sentence than they believe the CO would have applied, although obviously not one outside the CO's powers under summary jurisdiction? Am I right in believing that the members of a courts martial will not have to put themselves in the mind of the CO and instead they may come to their own decision based upon the evidence before them? Furthermore, am I right in believing that the courts martial may take into consideration the probability that the soldier has elected for courts martial despite it being a minor case? I shall listen with interest to the Minister's reply. I beg to move.

Lord Bramall: This is a crucial amendment. It impinges upon the whole question of appeal against a summary sentence of the commanding officer and it will of course be dealt with by my noble and gallant friend Lord Carver when he moves his amendment to resist the whole of Clause 11.

My own view is that the forces probably could live with the soldier making a choice as to whether to be tried by courts martial or summarily before he is even arraigned before his commanding officer. In most cases, I believe that service people would choose to go before the commanding officer. In the Second Reading debate the noble Baroness quoted some statistics to support that. Quite apart from the uncertainty and the deferment of justice in general, it seems utterly senseless and over-ponderous for a soldier to be forced to make that decision before the evidence has even been heard and when, as a result of that evidence, he may be about to be acquitted or even given the most

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minor punishment. Therefore, I shall withhold judgment on the amendment until I have heard the arguments put forward by my noble and gallant friend.

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