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Lord Campbell of Alloway: I have put my name to the amendment because I was present at Second Reading and I defer to the views of the noble and gallant Lords who spoke then, and to all other noble Lords who spoke in favour of the proposition. It was a body of opinion which no Government could possibly put aside and ignore. I defer to the speeches of the three noble and gallant Lords. It is a privilege to follow them and I shall be brief.

The noble and gallant Lord, Lord Bramall, put the matter very clearly: there is much provision in the Bill which is unnecessary. To put the proposition round the other way, as I was trying to do earlier; which precise articles of the convention does the existing regime--the discipline Acts--breach? It is the same problem.

One hopes that we can return to this issue on Report--we should not divide today--but the essential argument, briefly, can be put in an analysis. As part of the proposed appellate procedure under Clauses 14 to 25, Clause 11 imports the right of election to trial by courts martial before there are summary proceedings. Therefore, in speaking against Clause 11 stand part, it is logical--certainly at Committee stage--to speak to Clauses 14 to 25 not standing part.

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Why should they not stand part? Essentially the three reasons that have been given are, first, that they erode the status and authority of the commanding officer; secondly, that they are unworkable in practice. With the greatest respect to the noble Baroness, it is no good saying, "This is workable; it is designed to be workable. We have sorted this out with people; they all think that it is workable". The noble and gallant Lords have, on two occasions, assured the House that it is not workable. My noble friend Lord Vivian, my noble friend Lord Attlee, the noble Lord, Lord Hardy of Wath, and the noble Lord, Lord Chalfont, who spoke at Second Reading, have all said that, in practice, this is not workable. I have already drawn to your Lordships' attention the difficulty of seeking to make any effective distinction between war as war and warlike activities in which the Government's proposals would be unworkable.

The third reason is that the clauses are not necessary. I shall listen to the answer to that question with great care. They are not necessary because the existing regime does not breach certain provisions of the identifiable articles of the convention.

When the convention was ratified, no thought was given to the effect upon military discipline of any article in this treaty. If you read through the convention, none will be found. Furthermore, it was wholly implicit that the rights and freedoms conferred on civilians would suffer limitations when applied to discipline in the Armed Forces. The basic concept of the convention seems to have been wholly ignored by the Government. Rolv Rysdal, who served for so long and with such distinction as a judge in the Court of Justice, pointed out that the convention was not intended to impose rigid, uniform solutions.

There is no binding system of judicial precedent. Instead, there is a system of overriding flexibility in which each case is decided on its own facts and merits. That is all relevant to the point made by the noble and gallant Lord, Lord Bramall, and made by myself in another form; namely, is this necessary from the point of view of compliance with the convention?

The question arises on a subsequent amendment. If an amendment to set up a courts martial appeal court is passed, it could then be ever said that the scheme as proposed--namely, retention of the scheme we already have with that amendment and that appeal court--could conceivably breach the convention, because we have our own domestic appellate forum.

If the amendment were to be accepted, not only would there be no need for Clause 11 to stand part, there would also be no need for Clauses 14 to 25 to stand part. The Bill before us takes a wholly different approach to the option which commended itself to the Government. But that option has been foreclosed. Is there not a heavy burden of justification to be discharged before Clause 11 or Clauses 14 to 25 shall stand part?

Baroness Thomas of Walliswood: In the unavoidable absence of my noble friend it falls to me, first, to

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reassure the noble and gallant Lord, Lord Bramall, that my noble friend does not harbour dark thoughts about anyone. It is not in his nature to do so.

Secondly, as a layman--perhaps I may say how much I miss the presence of my noble friend Lord Lester of Herne Hill in this matter--I believe that a basic principle lies behind the Bill; namely, that members of the armed services are citizens--indeed, they are humans because the convention refers to human rights--and, as far as possible, they should enjoy the same rights as everyone else. I take that to be the foundation of the Bill. Earlier on in today's proceedings, the Minister made a declaration to that effect. We were not able to respond at that time so I am taking this opportunity to say that we agree with the general purpose of the Bill and will support the Government in retaining the clauses which the noble and gallant Lords wish to remove from the Bill.

3.30 p.m.

Baroness Symons of Vernham Dean: The noble and gallant Lord, Lord Carver, seeks to exclude from the Bill Clause 11, which is the clause dealing with the right to elect for courts martial. The noble and gallant Lord reminded us of the exchanges in your Lordships' House on the Human Rights Bill. When that Bill was debated in the House, the Lord Chancellor indicated the Government's willingness to consider designating military courts as the proper venue for consideration of complaints on convention grounds by members of the Armed Forces. That possibility was given careful consideration in full consultation with the three services. However, it was decided that using courts martial to hear purely convention points would be inappropriate. Courts martial are not standing courts. They would have to be convened on an ad hoc basis to hear criminal charges.

My noble and learned friend also said that there would be situations in which special considerations would certainly have to apply to the Armed Forces because of the nature of their work. My noble and learned friend added that it would be a matter for the Armed Forces to look at each situation on its merits and to ensure that any actions they took were consistent with the convention rights as they will be applied to the particular circumstances of the case.

There has been an implication, at least from some Members of the Committee, of inconsistency with regard to what my noble and learned friend said at that time and what we are proposing in the Bill. I believe that there is no such inconsistency. My noble and learned friend said that the situation would be looked at on its merits, but he also stressed the importance of compliance with the convention. The Bill is tailored precisely to meet the needs of the Armed Forces. I believe that what my noble and learned friend said at that time is on all fours with what the Bill says now.

Perhaps I may take up the point raised by the noble Lord, Lord Campbell of Alloway. His point can be summed up very succinctly as: is any of this really necessary? The Ministry of Defence has been in touch with the Lord Chancellor's office over a number of

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months and has discussed the issue as part of our collective consideration of the Bill across government. The view taken by the Lord Chancellor's office and by the Ministry of Defence is that the current summary justice system on its own is not compliant with the convention and that the right to elect for a courts martial from the outset and the establishment of a summary appeal court will make the disciplinary system in our Armed Forces compliant. It is taking those two elements together that makes it compliant. That is why the legislation is necessary.

Our noble and gallant colleagues have said that Clause 11 and indeed the other clauses to which the noble and gallant Lord, Lord Carver, referred undermine the authority of the commanding officer. The noble and gallant Lords brought that theme before your Lordships at Second Reading and they have been remarkably consistent in doing so again today. But these proposals have not sprung up overnight in some dark room in the MoD. They have been developed with those who currently serve in the services, specifically, intentionally and deliberately to preserve the balance between the imperative of upholding authority in the Armed Forces and the rights of individuals. They are intended to preserve that all-important balance.

The proposal that service personnel can appeal against the decision of a commanding officer is not very different in principle from the option given to an accused to elect for trial by courts martial once he has heard his commanding officer's decision. It could be said that that is no less of a second bite at the cherry. However, none of the changes to the courts martial system implemented by the Armed Forces Act 1996 has had any adverse effect whatever on the authority of commanding officers.

We do not expect a right of appeal to lead to cases challenging the decision of a commanding officer. Initially, of course, there may be quite a few such cases. Over time, the number of appeals will no doubt be influenced by a number of factors, including, naturally, the success rate of those appeals.

We need to consider what would happen if we did not make these changes. Failure to do so would render the system for service discipline vulnerable to challenge in our domestic courts. The risk of frequent and successful challenges to the system would create an untenable position. That would undermine service discipline and the authority of the commanding officer. The commanding officer's judgments would be subject to constant appeal in the courts or through judicial review.

The Bill has been under consideration for over a year by the civil, legal and military authorities. The Chief of the Defence Staff has recognised unequivocally the need to go ahead with this legislation. If we do not, when the convention comes into force in October 2000 British Armed Forces could be faced with individuals saying that the discipline system is in breach of the convention or is not compliant with it. At that point, the disciplinary system would certainly lose credibility, as would commanding officers.

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I noted the moving quotation from the noble and gallant Lord, Lord Bramall. But I am bound to say to him that time moves on. A quotation from a time when civil rights were very different from what they are today needs to be placed in context. I remind the Committee that it comes from a time when noble and gallant Lords might have come into this House through rights of succession, but the noble Baroness, Lady Thomas, and I would certainly not have had a right to sit in this House.

The rights of our servicemen and women must keep pace with the rights that the people of this country expect for themselves. We must respect the rights of those in our armed services. In a modern world they have the same right to justice as the rest of us. To exclude them, uniquely, would be not to respect to them.

It is also possible that young people, when considering whether to be recruited into the Armed Forces, would be very concerned to think that they did not have the same rights under the European convention as their friends entering other walks of life.


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