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Lord Davies of Oldham: My Lords, I beg to move that the further proceedings after Third Reading be now adjourned until 8.37 p.m.

Moved accordingly, and, on Question, Motion agreed to.

Army, Air Force and Naval Discipline Acts (Continuation) Order 2003

7.37 p.m.

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach) rose to move, That the draft order laid before the House on 28th April be approved [18th Report from the Joint Committee].

The noble Lord said: My Lords, the order is an essential part of the process by which Parliament continues in force the service discipline Acts. The main element of that process is the five-yearly Armed Forces Acts. The most recent of these, the Act that we passed in 2001, extended the lives of the Army and Air Force Acts 1955 and the Naval Discipline Act 1957 for a further five years. However, this is subject to both Houses approving an order such as this one in each intervening year. The service discipline Acts provide the statutory basis for discipline in the Armed Forces.

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Because of that they are of critical importance, and so therefore is this order, as the means of ensuring that the discipline Acts remain in force. The draft order was approved in another place on 1st July.

The Explanatory Memorandum accompanying the order addresses its compatibility with the rights provided under the European Convention on Human Rights. The order raises convention issues only in that it continues in force three Acts that have been developed over the years, by successive administrations, to reflect the rights set out in the convention. In last year's debate, I mentioned the European Court of Human Rights judgment in the case of Morris v the United Kingdom. That court had taken the view that the procedures for post-trial review provided for in the service discipline Acts were not compatible with Article 6 of the convention. That was on the basis that the involvement of non-judicial service authorities in the review of court martial findings and sentences impaired the independence of the court martial. They took that view even though the process is intended as a safeguard for the accused.

I advised the House last year that we had not yet decided how to react to that judgment. I did so because the same issues concerning post-trial review were also being addressed by your Lordships' House in its judicial capacity. We naturally wanted to await their Lordships' judgment before taking a decision on the future of the review procedure.

As it happens, that judgment, in the case of Boyd, Hastie and Spear, expressed a positive view of the procedure. It accepted that post-trial review served as a safeguard for the accused. The judgment also acknowledged that any changes made as a result of the review process were themselves appealable, so that the courts would be able to have the last word on the cases concerned. In formulating their own judgment, their Lordships were fully aware of the earlier Strasbourg judgment in the Morris case.

Because of the judgment by the Appellate Committee, we are able to say this year that the service discipline Acts are compatible with the convention rights and that so also is the present order continuing the Acts.

So where does that leave us? The issue of the compatibility of the review procedure has been raised again in the case of Grieves. Because of the conflicting judgments in the previous two cases, the Grieves case is going to be heard by the Grand Chamber of the European Court of Human Rights. The hearing will be later this year. It would, of course, be inappropriate to anticipate what this further judgment will say or to consider at this stage how we might react to it, although we are keen to have the issue settled.

One conclusion we can draw from their Lordships' judgment is that it illustrates how valuable it can be that our domestic courts are now more readily able to address convention points, following the Human Rights Act. The Grand Chamber of the European Court will now have the benefit of the arguments set out in the Appellate Committee's judgment. This has not been the case with previous cases concerning our military justice system that have gone to Strasbourg. We should see this as a positive advance.

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I should now like to move on to our plans to replace the service discipline Acts with a single tri-service Act. This is in order to provide a framework of Armed Forces legislation that will better meet the future needs of the services.

We are continuing to develop policy for the proposed new legislation. The focus remains on establishing how best to harmonise the services' differing disciplinary powers and procedures. This is so that the tri-service Act will fulfil the objective of improving the administration of discipline where the services operate together. We are looking closely at the arrangements for summary discipline and for courts martial. In doing so, we are aiming to build on those aspects that are common between the services, while seeking to ensure that their requirements are appropriately reflected in the new procedures.

At the same time, we are looking at the other areas covered by the legislation, such as the system for members of the Armed Forces making complaints. This is at present essentially the same in all the services. However, the tri-service Act will be an opportunity to try to develop procedures that better meet the likely future expectations of our people.

The Government and the Armed Forces attach considerable importance to the tri-service Act project. This is reflected in the substantial resources that are being devoted to working out both the principles and the detail of the legislation. Although the work on policy development is taking a little longer than we had envisaged, this is not affecting our overall timetable. In any case, as I know the House will readily agree, it really is essential that we get the policy right. Nevertheless we hope that the next five-yearly Armed Forces Bill, due in the 2005–06 Session, can be the vehicle for the tri-service legislation. This will obviously be subject to the availability of parliamentary time for what is expected to be a very large Bill.

I know that the noble Lord, Lord Vivian, is concerned about consultation on the Bill before its formal introduction. I do not intend today to outline what form such consultation will take. It is, if I may say so, a little early to do so for a Bill which is most unlikely to be introduced in either of the next two Sessions. We shall keep the options under review, and I have little doubt that nearer the time we shall discuss these through the usual channels.

However, I can assure the noble Lord and the House that we fully appreciate the depth of experience and expertise on these matters in your Lordships' House. It will certainly be our intention to assist the House by providing details of the main proposals for the tri-service Act once we have firmed these up. As I suggested last year, I imagine that this alone will be sufficient to generate reactions of various sorts from noble Lords.

Discipline in the Armed Forces is not a goal in itself. It serves the vital function of underpinning operational effectiveness. I scarcely need to remind this House of how both the effectiveness of our forces and their

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discipline have recently been put to the most demanding of tests. They have come through with flying colours.

Our attention in the past few months has naturally been focused on the operations in the Gulf region. However, I know that the House would not want for one moment to overlook what the men and women of the three services do on our behalf, wherever they are serving at the time. They are among the nation's most priceless assets, and I am sure that the House will once again wish to join me in paying tribute to them. I beg to move.

Moved, That the draft order laid before the House on 28th April be approved [18th report from the Joint Committee].—(Lord Bach.)

Lord Vivian: My Lords, I am most grateful to the Minister for moving the order. I am grateful also for the order which will follow in due course. I wish to speak to both orders. The first concerns the annual continuation order for the Army, Air Force and Naval Discipline Acts and the second concerns the Armed Forces (Review of Search and Seizure) Order 2003. From these Benches we support these two orders and I am grateful to the Minister for his clear explanation of the first order. I have no doubt that he will also clearly explain the second order.

I am sure that I do not need to remind your Lordships of the critical importance of high morale for our Armed Forces, which consists of the fair application of military discipline, good sound training and high military ethos. The efficiency and state of morale of a regiment is the sole responsibility of a commanding officer and for that reason such military discipline powers are vested in him. If we undermine those powers or reduce them in any way, we shall destroy the ethos and morale of regiments and may be left with inefficient regiments that may not be successful in times of conflict. I sincerely hope that no further amendments will be made to the summary discipline powers of a commanding officer and no more changes made to the courts martial system.

Throughout the drafting process of the new tri-service Bill mentioned by the Minister, I can only hope that after every clause has been drafted the question is asked: "Have we undermined or reduced the powers of a commanding officer in any way"? Should the answer be in the affirmative, the clause really must be re-examined to prevent those powers being reduced. The new Bill will be of such importance that every attempt should be made to retain the effectiveness of the military discipline system, ensuring that commanding officers retain their full powers.

I have a number of questions to ask but I shall keep my remarks short. First, I shall deal with the continuation order 2003 and then with the search and seizure order. When we processed the 2002 continuation order about a year ago, I covered a number of points that do not yet appear to have been followed up, but I expect that in due course they will be resolved.

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Could the Minister expand on what progress has been made in the drafting of the tri-service measure so far? The Minister will recall that he said that by this year the policy development stage should be complete and that he would consider whether it would be possible to publish information about the Government's proposals. Is the policy development stage now complete?

Last year I made the observation that due to the nature of the three services and their different roles there may be a need to introduce some parts of the Bill which will be applicable only to a specific service. Could the Minister say what progress has been made in relation to the possible need for that?

This is an opportunity to comment on some disciplinary matters that have occurred in Iraq over recent months. It has been reported that two soldiers were returned from Iraq because they questioned the legality of the war and yet it would appear that no disciplinary charges will be brought against them. Could the Minister say if there is any truth in this allegation and, if there is, what are the reasons for not bringing military charges against them? A second point for concern is the allegations against a number of British soldiers who may have committed serious crimes against Iraqi prisoners of war. Will the Minister assure the House that if, as a result of investigations, the case is substantiated, the strongest possible action will be taken against them if they are found to blame?

I move to a matter that I raised last year concerning the International Criminal Court. The Minister informed me that the complementary provisions of the statute whereby we have primacy of jurisdiction in cases where our nationals are accused provide the protection that our service personnel require. He went on to say that, in other words, if the UK decided that there was no case to answer, then the International Criminal Court would not have jurisdiction unless it could claim that the United Kingdom was deliberately shielding war criminals or that the justice system had broken down. It would appear that the International Criminal Court could misinterpret or misunderstand the UK position of "no case to answer", with the understanding that the UK was unwilling or unable to proceed with a prosecution. If that happened, it could give rise to the International Criminal Court claiming jurisdiction over such an incidence. Will the Minister kindly give the House further reassurance on this issue?

I turn briefly to the second order, the Armed Forces (Review of Search and Seizure) Order 2003. I understand that the order has been laid as Part 2 of the 2001 Act, providing for the first time a statutory regime for powers of entry, search and seizure in connection with the investigations of offences under the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957, and that this draft order will be part of that regime. The powers of a commanding officer for entry, search and seizure of property has been discussed in great detail previously and I understand that the proposed order will continue to allow commanding officers to have those limited powers, subject to judicial review. If I am correct in my

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assertions, will the Minister assure the House that the Armed Forces legal directorates are content with the order?

In conclusion, I should like to take this opportunity to pay tribute to the men and women, and to the families, of our Armed Forces. They have been over-committed and many of their families have faced extra-long periods of separation. They have performed their tasks highly successfully, with great skill, bravery and determination, and I am sure that all of your Lordships, on all sides of the House, are immensely proud of all their many achievements.

In the recent defence debate, I stressed the importance of ensuring that the Armed Forces are given a fair deal. I should like to take this occasion to remind the Minister to examine now how pay, conditions of service and allowances can be increased and improved; as, otherwise, we may lose many trained and experienced servicemen. The tri-service Armed Forces disciplinary Bill is yet another part of this fair deal. It is essential that this new legislation is right and easy for commanding officers to interpret and administrate. As I have said, military discipline, in combination with the military ethos and sound training, ensures high morale and operational effectiveness.


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