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Earl Attlee: I am grateful to the Minister for that response. Clearly, I must have another look at my

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manual on military law and study it in greater detail. I am pleased that we have made some progress on these matters. For the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway moved Amendment No. 89:

    After Clause 12, insert the following new clause--


(" . A Courts-Martial Appeal Court to determine questions solely relating to Convention Rights designated by rules made in accordance with section 9 of the Human Rights Act 1998 shall be established.").

The noble Lord said: The amendment inserts a new clause that a courts martial appeal court be set up to determine questions relating solely to convention rights. The amendment provides for a judicial domestic appellate forum in which questions concerning convention rights under the service discipline Act may be determined. The proposal was not originally mine. Indeed, it was a proposal made by the noble and learned Lord the Lord Chancellor at Third Reading of the Human Rights Bill. The proposal was made on the clear assumption that the existing regime, with this amendment proposed by the noble and learned Lord the Lord Chancellor, would comply with the convention.

The noble Baroness, Lady Symons, has been very patient. I have every sympathy and understanding for her position. She comes to this Committee and says, "Well, the chiefs of staff tell me, and I know, that they like the Bill; it is a jolly good Bill; there is nothing wrong with it; so there it is". But the noble Baroness must have some sympathy for our position.

I served in the most humble capacity in the Armed Forces. But when you have noble and gallant Lord after noble and gallant Lord coming along and saying quite the opposite of what the noble Baroness is being told by the present chiefs of staff, what is the Committee to do?

It is not a question of pressing the noble Baroness or seeking to be unkind, but she must understand that somehow or other we must sort this out. My noble friend Lord Burnham put it in one when he said, "Well, Christmas is coming", and one thing or another, but in the meantime, could we relax a bit, understand each other's position and look into this matter?

The noble Baroness is saying, "The Lord Chancellor's Department and the MoD take the view that...". With the greatest respect, I understand that the noble Baroness has to say that, but she must understand that I do not like it. Time and time again I have been asking which articles of the convention are being broken by the existing regime. That is a fair enough question when one sees that it was not my proposal; it was a proposal of the noble and learned Lord the Lord Chancellor.

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I propose this amendment on the basis that it would satisfy the convention. I shall not go on about it, but I hope that the Committee will understand that it is a rather odd situation, if I can express the matter in that way.

What the noble and learned Lord the Lord Chancellor said is at col. 767. When he was rejecting my amendment--and as a rule, my amendments always are rejected--he said:

    "In practice, convention issues as they might affect the Armed Forces would arise in the course of proceedings before military courts and would be resolved there. Appeals would go to the Courts Martial Appeal Court".--[Official Report, 5/2/98; cols. 767 and 768.]

And so on. That view of the noble and learned Lord the Lord Chancellor seemed perfectly reasonable.

In the wake of that proposal, I indulged in correspondence with the noble Lord, Lord Gilbert, at the MoD of which I have no copies save one, which is a comfort letter of 10th March 1998. It would be much appreciated if the noble Baroness would place copies of the correspondence--because I have lost mine save for this letter--in the Library before Report stage. The reference is dppsMB39/ltrs/an-ldcampb/Kat". I do not understand it but that is the reference. The noble and gallant Lord, Lord Carver, referred to that on Second Reading at col. 687.

Yesterday, the noble and gallant Lord, Lord Craig of Radley, showed me a letter to him from the MoD dated 9th June which informed him that it was not proposed to adopt the proposal of the Lord Chancellor, as confirmed by the comfort letter. Perhaps a copy of that letter could complete the bundle.

The comfort letter dated 10th March states:

    "Dear Lord Campbell,

    Thank you for your letter ... As I said in my letter of 28th February"

-- this has been going on for quite some time--

    "we are looking into the proposal for a designated military court to determine questions solely relating to Convention rights, but until we have received advice from officials, neither Ministers nor Chiefs of Staff can take a view on this.

    "Such a court would, as you mention, be designated by rules in accordance with Clause 7 of the Human Rights Bill. The rule will be agreed in the period between the Bill receiving Royal Assent and its coming into force. I do not think you need to worry, therefore, about the option being foreclosed if we do not take an immediate view on this [the Lord Chancellor's] proposal. We have enough time to reach a fully considered decision".

Accepting the assurance given by the noble Lord, Lord Gilbert, I was wholly content and did not worry until I saw a copy of the Bill which takes a totally different approach and affords no comfort at all, other than, according to the noble Baroness, to the present chiefs of staff. It appears that it does not afford universal comfort to many other people.

When one looks at the Bill and sees what the boys in the backroom have done and the intricacy of the craftsmanship, one wonders why such an exercise should have been undertaken at all when the option proposed by the Lord Chancellor, confirmed by the MoD, was wholly acceptable, wholly satisfactory and wholly in accord with the convention.

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To save the time of your Lordships, I will forebear from commenting upon the reasons given in the letter dated 9th June. Frankly, when your Lordships come to consider them on Report, I believe they will find them totally incomprehensible and not satisfactory reasons. However, I would be grateful if that letter, together with the others, could be made available so that in the course of debate it may be fully discussed.

At this stage I wish only to urge the Committee, and in particular the Government, to reconsider the rather harsh attitude to the general amendments to the Bill. I suggest that the amendment, which commended itself to government, would not require any amendment to the service discipline Acts as proposed by the Bill. It would be in compliance with the convention and assure compliance with the convention. I propose to withdraw the amendment in due course. I beg to move.

Lord Craig of Radley: Mention has been made of a letter addressed to me by the noble Lord, Lord Gilbert. I am happy for that letter to be made available.

It was not clear to me at the time that he wrote whether the reason for not going forward on the lines that the noble and learned Lord the Lord Chancellor proposed--as outlined this afternoon by the noble Lord, Lord Campbell of Alloway--was in any way dependent upon cost. When the Minister addresses this point, either now or at a later stage, I hope she will be able to tell us whether or not cost was in any way part of the reason for not proceeding with what originally appeared to the Lord Chancellor and myself--I advocated it strongly--a single court martial appeal court for all servicemen's human rights cases.

Baroness Symons of Vernham Dean: Amendment No. 89 re-visits an issue that first emerged in your Lordships' Chamber when we were considering the then Human Rights Bill. The noble Lord asked me to make sure that copies of various correspondence that he mentioned were placed in the Library of the House. I am grateful to the noble and gallant Lord, Lord Craig of Radley, for giving his consent in relation to the correspondence directed to him. I shall do that as quickly as possible.

However, when the Human Rights Bill was under discussion my noble and learned friend the Lord Chancellor undertook to look into the question of designating military courts to deal with convention points arising in the Armed Forces. As I indicated in my response to the noble and gallant Lord, Lord Carver, we gave that proposition careful thought, but in the end decided against it. We did not feel that there would be enough business to justify the establishment of a special court for this purpose. We therefore examined whether courts martial themselves would be appropriate.

Amendment No. 89 appears to be related solely to the function points arising from judicial acts. This is the import of the reference to Section 9 of the Human Rights Act. The other aspect of the drafting of the

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amendment on which I could perhaps comment is the reference to a "courts martial appeal court" being established. That might cause some confusion with the existing court of that name.

The existing courts martial appeal court is competent to deal with convention points raised on appeal from the courts martial. The new summary appeal courts will be able to deal with such points raised on appeal from summary proceedings. That would cover most of the territory addressed in the noble Lord's amendment. As I said, other issues would be a matter for the High Court.

In his address to us, the noble Lord, Lord Campbell of Alloway--perhaps referring a little reflectively to the discussion we have had on the Bill this afternoon--asked what articles would be broken in the convention were we to do nothing. Perhaps I can point out that the Government believe that Article 5 would be broken, the article concerning the right to liberty, and Article 6, the article concerning the right to a fair trial. I realise that they are not specifically linked to the amendment, but as the noble Lord was good enough to put those points to me, it may be convenient to answer them now.

We are not ruthlessly brushing aside the amendments tabled to this Bill. I can assure the Committee that they commanded an enormous amount of attention in the Ministry of Defence and, with the greatest respect to all Members of the Committee, it is natural and proper that there is a particular relationship with the noble and gallant Lords who have been good enough to give us the benefit of their wisdom. Their amendments were carefully considered in framing my answers this afternoon.

Similarly, we have given very careful consideration to the concerns articulated in the amendment of the noble Lord, Lord Campbell of Alloway. However, we believe that we have a satisfactory solution to the possible areas of difficulty to which he drew attention. Therefore, we do not believe that the noble Lord's amendment is necessary.

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