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Baroness Thomas of Walliswood: I am sorry to interrupt the noble Earl when he is winding up, but for the purposes of clarity perhaps I should say that my remarks were directed towards making the assertion that some soldiers might elect courts martial on a minor offence if they felt that the circumstances surrounding them in that unit were unfavourable to having a fair decision made by the commanding officer. That was the purpose of my remarks.

Earl Attlee: I entirely agree with the noble Baroness, Lady Thomas. I found the arguments of the Minister very attractive. She said that electing for courts martial after the commanding officer had heard the evidence would amount to an appeal. I will read carefully what she said. I intend to come back at Report with suitable amendments to deal with the problems of unfair pressure being applied. I may return to this issue, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 79 to 85 not moved.]

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

On Question, Whether Clause 11 shall stand part of the Bill?

Lord Carver: In speaking to this clause, with the leave of the Committee I shall speak also to Clauses 14 to 25. In opposing that these clauses should stand part of the

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Bill, my target is the summary appeal court. It would be established by Clauses 14 to 25, but Clause 11 is directly relevant to it.

In the debate on Second Reading my noble and gallant friends and I and other noble Lords made it clear that of all the proposals in this Bill, that was the one which most seriously tended to undermine the position of the commanding officer as the fount of authority and justice in the unit. It would mean that a serviceman, having elected to be tried by his commanding officer, having been found guilty and awarded a punishment by him, could then say, "I do not like that. I shall appeal to the summary appeal court". That would not only be a direct blow to the commanding officer's authority, but also involve delay as well as bureaucratic effort and expense.

The noble Earl, Lord Attlee, in the Second Reading debate rightly emphasised the importance to discipline, and to the efficiency of the unit, of justice being swift. Why, therefore, have the Government proposed this provision? It derives from the ruling of the European Court of Human Rights in interpreting Article 6 of the Convention, which deals with the right to fair trial, where it establishes the right to,

    "a fair and public hearing [by] an independent and impartial tribunal established by law".

In the case of Lance-Sergeant Findlay they ruled that a courts martial convened and presided over by a higher military authority was not "independent and impartial". That led to the changes to courts martial brought about by the Armed Forces Act 1966.

The Government appear to fear that in the case of a commanding officer's summary jurisdiction, our own courts, in interpreting the Human Rights Act, would take the same view or, if they did not, that an appeal from them to Strasbourg would do so; that they would rule that a serviceman must be able to elect trial by courts martial before his commanding officer starts summary proceedings; and that if he does not, and chooses summary trial, and the CO finds him guilty and sentences him to some punishment, the man must have an avenue of appeal.

I believe that the Ministry of Defence's legal advisers are taking too pessimistic a view of the likelihood of that. It is certainly at variance with the advice tendered by the noble and learned Lord the Lord Chancellor when the Human Rights Bill was being discussed in this House. He described the convention as a "flexible instrument" and played down the fears expressed by some noble Lords that its incorporation into our domestic law could have serious implications for the disciplinary codes of the service.

I contend that the present system under the Army and Air Force Acts is perfectly fair and can be defended in the courts as consistent with the convention. The case against a soldier or airman, and the man's own explanation in his defence, are heard by the commanding officer. The latter either dismisses the charge or decides that the accused is guilty. If the latter, he offers him the choice between being tried by courts martial or accepting the commanding officer's

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award of sentence. If he accepts that award, how can he claim that he has not had a fair trial? If he elects trial by courts martial, then how can he claim it? Therefore, if the summary procedure under the Army and Air Force Acts is not changed by Clause 11, I contend that there is no need for a summary appeal court and that, consequently, Clauses 14 to 25 would be redundant.

The Minister cited the case of the Royal Navy. Under the Naval Discipline Act, a sailor has the right to elect courts martial before summary proceedings begin. If he chooses trial by commanding officer, I understand that he then has no right of appeal against the latter's finding or award. If that is the case, and if the Government believe that he ought to have, my answer is that the Navy should be given the choice of either coming into line with the Army and Air Force or, if they cannot bear the thought of that, of having a summary appeal of their own. After all, they have their own Judge-Advocate.

I appeal to the Minister to go back to her legal advisers and ask them to consider whether they are being too cautious and pessimistic. Perhaps she might talk to her noble and learned friend the Lord Chancellor and ask him to persuade them to come round to the views that he expressed when the Human Rights Act was being discussed in this House.

Lord Craig of Radley: I put my name down to speak on the Question that Clause 11 shall stand part of the Bill because, like the noble and gallant Lord, Lord Carver, I feel that this particular clause is misplaced. I do not wish to detain Members of the Committee for long. I have but three brief points to add to the remarks of the noble and gallant Lord.

First, I believe that this approach tends to undermine the importance of courts martial in the overall spread of legal arrangements that the services have. Historically, a courts martial is seen as a much more important court than any form of summary jurisdiction. I do not like to see a courts martial being placed in the position of having no greater tariff at its disposal than a lower summary court.

Secondly, as the noble and gallant Lord said, I believe that the position of the commanding officer is inevitably undermined by this approach. We have a responsibility to do all that we possibly can to sustain the authority of the commanding officer, for all the very good and many reasons that have been brought to the attention of noble Lords during the course of the Second Reading debate and, again, this afternoon.

Thirdly, I, too, like the noble and gallant Lord, Lord Carver, return to the words of the noble and learned Lord the Lord Chancellor when we debated the Human Rights Bill. He said that there was flexibility in the human rights convention and that it posed no threat to the effectiveness of the Armed Forces. I believe that there is a potential threat here. Indeed, as the noble and gallant Lord, Lord Carver, suggested, I think it would be a great help if the advisers of the Ministry of Defence were to approach the Lord Chancellor's office to see whether we can gain some flexibility in the direction that would help the authority of the commanding officer.

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3.15 p.m.

Lord Bramall: Before I support my noble and gallant friend Lord Carver on this measure I shall try once again to dispel a second misapprehension; namely, that noble and gallant Lords and other noble Lords who criticise this Bill somehow belong to a dying breed who hark back to the days of iron discipline and fierce regulations all designed to inculcate a greater fear than the enemy could possibly achieve, and that somehow we find it difficult to adapt to the development of man management and the greater sensitivities of the modern soldier. Perhaps the noble Lord, Lord Wallace of Saltaire, harbours such dark thoughts.

However, nothing could be further from the truth. Let me quickly--even if constitutes a short digression--read something that was written about one of the battalions of my regiment,

    "I have the pleasure to observe this regiment possesses an excellent spirit and that both officers and men take a pride in doing their duty. Their movement in the field is perfect; it is evident that not only officers but each individual soldier knows perfectly what he has to do; the discipline is carried on without severity; the officers are attached to the men, the men to the officers".

In case noble Lords think that I am directly or indirectly blowing my own trumpet, I point out that that was written in Sicily in 1806 by the great British general, Sir John Moore, about a battalion of the 52nd Light Infantry, later the Oxfordshire and Buckinghamshire Light Infantry, now part of my own regiment, the Royal Greenjackets.

Since that day that regiment, with its rifle and light division traditions, and a number of like minded regiments and corps, have, as well as taking pride in their fighting qualities and professional skill--because that is what the Armed Forces are there for--kept and sought to develop those standards of intelligent and humane discipline, sympathy and understanding between all ranks and concern for the individual, his welfare and that of his dependants. With, of course, different emphasis, different styles and traditions, each with their own strength, these standards, certainly since World War Two, have been developed and are inculcated at Sandhurst and other establishments and are generally standard practice throughout the British Army and, I have no doubt, throughout the other services also.

I hope that the impression will not be given that these officials and law officers meeting in well lit rooms in the Ministry of Defence and with balanced ideas have some sort of monopoly of what constitutes justice and disciplinary values in a modern military society. I believe that the kind of background I have described is the right kind of background against which sensible, essential discipline, without which fighting men become a collection of unhappy, frightened individuals, should be considered as opposed to too legalistic arguments.

Of course I accept that none of that gets away from the Government's real need to make arrest and trial procedures in the services compatible with what will soon be British law. But the point that my noble and gallant friends have made, and with which I entirely

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agree, is that more is being put into this Bill than is strictly necessary for compliance. Indeed even the Minister, when discussing the right of appeal against a summary sentence, said only,

    "that to continue with the present arrangements may not be compatible with the convention".

I am sure that her words were carefully considered. She continued,

    "and would allow the possibility"--

not the probability--

    "of a challenge to the powers of the commanding officer".

Many of us think that if necessary this should be tested because if, as I said in the Second Reading debate and my noble and gallant friends have said, a soldier can have free and direct access to a European Convention on Human Rights compliant court--that is, a courts martial, with its own right of appeal--the right of appeal against the commanding officer's summary sentence to a special court would seem to be superfluous.

Perhaps the forces could live--as I said before--with this business of electing trial from the outset, but, as my noble and gallant friend has pointed out, how much better the present system whereby before passing sentence the accused is asked whether he will accept the award or prefer to be tried by courts martial. This would greatly speed up justice and of course, as has been said in another context, justice delayed is justice denied. It would remove that uncertainty--one of the fundamental principles of discipline is that it should be consistent and well understood as well as fair--and it would not undermine the all-important authority of the commanding officer, on whom everything depends in terms of morale and performance. It would, of course, make Clauses 11 and 14 to 25 unnecessary.

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