| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Climate Change and Sustainable Energy Bill
4.15 pm
Lord Whitty: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Whitty.)
On Question, Motion agreed to.
Armed Forces Bill
4.15 pm
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Drayson): My Lords, I beg to move that this Bill be now read a second time. We ask much of our Armed Forces. They will often be in physical danger. They are given the right to use violent force on a scale not available to others, but we demand that as highly professional Armed Forces they act in a controlled and measured way within the law. Their ability to operate in that way obviously depends on demanding training, but also complete clarity on how they are to act and on whose authority. The chain of command does that in peace and on operations, at home or overseas.
The authority of the chain of command must be credible to those subject to it. It is critical to the delivery of unit cohesion and to operational
14 Jun 2006 : Column 227
effectiveness. Commanding officers are responsible for the discipline of those under their command. They exercise their authority primarily through their qualities of leadership and by inspiring the confidence, loyalty and trust of those who serve under them. However, ultimately, the Armed Forces must have the power to enforce discipline through a service criminal justice system. The integrity of the system is essential if we are to retain the confidence of those who are subject to it. It must support operational effectiveness and meet the expectations of members of today's Armed Forces. Above all, it must be fair. The Government are committed to retaining a separate system of service law. The primary purpose of this Bill is to provide the Armed Forces with a criminal justice system which meets these needs. It is not something that we have produced in a vacuum: all three services have been involved from the outset in developing the proposals and we have learnt from recent experience.
I recognise that the present military criminal justice system has rarely been subject to so much scrutiny as in the past two or three years. I will not discuss specific cases today. No one thinks that the Armed Forces should be above the law. Investigations into alleged serious offences on operations will always be difficult for those involved. Those investigations must be professional and independent. Any decision to prosecute for a serious offence should be taken by an independent prosecutor with an understanding of the service context. Any trial of such an offence should be before an impartial tribunal comprising serving members of the Armed Forces, with an independent judge. Of course, there must be proper safeguards and support for those who face investigation and prosecution in the service system.
Before I turn to some of the key provisions in the Bill I should like to say a few words about one matter which has been at the forefront of our minds as we have developed proposals in the Bill: the problem of undue delay. At worst, delay undermines operational effectiveness by damaging morale and unit cohesion. We must be rigorous in addressing it. I commend the efforts that the services and the Judge Advocate General are making to tackle delay in the current court martial system. The Bill will allow us to make further improvements, some of which I shall touch on.
The Bill defines offences, provides for the investigation of alleged offences and the arrest, holding in custody and charging of individuals accused of committing an offence. It provides for service personnel to be dealt with summarily by their commanding officer or tried by court martial. It retains the right of service personnel to elect trial by court martial and to appeal to the summary appeal court or the court martial appeal court as appropriate.
Much in the Bill is familiar. As my right honourable friend the then Secretary of State said in another place, it is evolution not revolution. But the key change is moving from three systems to a single system of service law. Having a single system enables the proper alignment of discipline and command instead of relying on ad hoc arrangements for joint operations as at present. It will mean that all service personnel will
14 Jun 2006 : Column 228
have the same powers, duties and rights when they are exercising their disciplinary functions or are being investigated for or charged with an offence. This is not only clearer, it is also fairer.
Part 1 deals with offences. All offences under the Bill are service offences. They are divided into two types. First are those disciplinary offences that are unique to service law—many will be familiar—such as looting or absence without leave. Secondly, as now, service personnel will remain subject to the ordinary criminal law of England and Wales wherever they are serving. Clause 42 provides for these criminal conduct offences.
The disciplinary offences have been reviewed and brought up to date. We have removed certain offences because they are no longer appropriate or are never charged, and are more properly charged under other provisions or dealt with administratively. It is not only the offence of scandalous conduct of officers that has gone. Other examples include allowing sequestration of aircraft or ship by a neutral state in time of war and billeting and requisitioning offences.
I turn now to the powers of commanding officers. The Bill provides commanding officers, for the first time, with harmonised powers to deal with all those under command of whatever service. We are reducing the theoretical extensive summary jurisdiction of commanding officers in the Royal Navy. I say "theoretical" because, in reality, they do not exercise them over very serious matters, not least because their powers of punishment are far too limited. But we are increasing the powers of Army and Air Force commanding officers to deal with a small number of additional criminal offences set out in Part 2 of Schedule 1—in straightforward cases, Royal Navy commanding officers already deal with these summarily—and their powers of punishment are increased from 60 to 90 days' detention, in line with those of naval commanding officers now. The exercise of both these additional powers will be subject to the approval of a higher authority.
The summary powers of commanding officers recognise the importance of being able to deal with such matters expeditiously, and we are also harmonising the powers of commanding officers to deal summarily with officers up to the rank of lieutenant colonel and equivalent, subject to certain conditions.
Part 5 of the Bill sets out the duties of commanding officers in respect of allegations that serious offences have been committed. It provides in Clauses 113 and 114 that for specified, inherently serious offences and those committed where certain prescribed circumstances apply, the commanding officer will be required to inform the service police as soon as practicable. The service police, who may already be investigating the matter, are in turn required to refer the case to the independent Director of Service Prosecutions if they think that there is sufficient evidence to charge one of these offences. The Director of Service Prosecutions will decide whether to bring charges, on the basis of the proper tests and a real understanding of the military context.
14 Jun 2006 : Column 229
However, we have taken specific powers to ensure that the decision whether to charge and what charge should be brought is not made without the commanding officer knowing what is going on and having the responsibility of ensuring that the director is aware of any facts which the CO thinks may be relevant to the decisions which the director will be taking.
It is worth giving a categorical assurance on that point. The power for the commanding officer to be kept informed and to provide to the prosecuting authority any information that he thinks is relevant will be set out in regulations under Clause 127. In particular, I draw noble Lords' attention to Clause 127(2)(e), which contains a power to require,
It is sensible to do that because commanding officers might have valuable information that could assist the prosecuting authority in the tests that must be applied before proceeding to charge individuals. We expect that COs will do this. They will see it as part of their duty to the individual and to the interests of justice to do so. Their training will reinforce that.
Under the existing legislation, there is provision in regulations for the commanding officer to submit to higher authority any information that he has which, in his opinion, may be material to the institution of court martial or other proceedings. That applies after the charge has been brought. The Bill gives us, for the first time, the opportunity for the prosecuting authority to have information on the service context before a charge is brought.
At present, the commanding officer also has a power to dismiss a charge—whether for a serious offence or not—without any form of hearing of the evidence. Under the existing law, the result of such action is that, even in very serious matters, no further proceedings may take place in the military system. No decision on the case can be taken by the independent service prosecuting authority, and the evidence is never tested.
That is not necessarily the end of the matter because, at present, where our civilian courts also have jurisdiction, the civilian authorities may then take action. The jurisdiction of the civilian courts may come into play as a result of the services themselves being prevented from taking any further action on the matter through just such a technicality. We want to address that.
The Bill will therefore ensure that the Director of Service Prosecutions will decide on serious cases, and that on serious cases a commanding officer cannot prevent further action by the services themselves, so we are removing the CO's power to dismiss charges without any form of hearing. I know that some see this as undermining the chain of command. I do not agree. It is simply wrong that, where there has been sufficient evidence to charge a soldier with a serious offence, the commanding officer can simply decide, without any hearing, that the soldier will not be tried for that offence, and that his decision then prevents any further
14 Jun 2006 : Column 230
proceedings in the military system. I do not think that commanding officers should have this responsibility, and nor do they.
As General Sir Mike Jackson said in giving evidence to the Select Committee on the Bill in another place:
"I would find it very hard logically to argue why a Commanding Officer should retain, or even have in the first instance, the power to dismiss a charge with which he cannot himself deal; that seems to me to be a matter that should properly go to court martial, for the evidence to be tested there".
If we believe that service personnel are not above the law, as long as commanding officers have these powers the services will be open to the recourse to civilian law as in the Trooper Williams case.
All offences can properly be dealt with under service law. The court martial is, and will remain, an ECHR-compliant court. We think it right that even the most serious cases should be resolved within the service system once proceedings have begun.
Clause 115 puts a clear duty on commanding officers to ensure that allegations of other, less serious offences are appropriately investigated. That is an objective test. These offences make up by far the majority of those committed by service personnel. It does not necessarily mean that the investigation has to be carried out by the service police. It is for the commanding officer to call them in if it is appropriate. Some 95 per cent of matters are dealt with summarily now and we expect that to be the same under the Bill.
I want to make it clear that, in the conduct of investigations, the service police work independently of the chain of command and of Ministers. They do a professional job, sometimes in the most demanding, difficult and dangerous circumstances. The Bill reinforces their relationship with the Director of Service Prosecutions in a similar way to their civilian counterparts. This should help to improve the quality and timeliness of investigations and reduce delay.
Where the commanding officer is considering what action to take in respect of the offences over which he has powers, he will of course, as now, have legal advice available. Under the Bill, as now, he may choose to deal with the offence summarily, or he may decide to refer the matter to the prosecuting authority because he does not wish to exercise his summary powers and believes a court martial would be more appropriate, or he may discontinue proceedings. But that would not prevent further action by the services at a later stage, if it were justified.
If the commanding officer deals with the matter summarily and finds the matter proved, he will go on to award a punishment. Again, this is familiar. Where he refers the matter to the Director of Service Prosecutions, it is the director who will decide whether to bring a prosecution and what the charge shall be. In all cases tried by the court martial, the Director of Service Prosecutions will determine the charge but it will be the commanding officer who formally brings it by notifying the individual concerned. This is important. It keeps the commanding officer directly involved. It reinforces his role by implementing his
14 Jun 2006 : Column 231
duty of care towards someone under his command who is subject to proceedings under service law. They must be properly supported and advised.
The changes I have already described will bring improvements in speed and efficiency. At the moment, every case must first go to the commanding officer. He looks into the matter. In many cases he will ask the service police to investigate. If he thinks it should go to court martial, he refers it to higher authority in the chain of command. In turn, higher authority refers the case to the prosecuting authority.
In another place some concern was expressed about the removal of the power for the Defence Council to review the findings and sentences of the court martial. This is the power for the chain of command to quash the court's finding or substitute another sentence which in their opinion is no more severe than the one awarded by the court. It is non-judicial interference in the decisions of a court martial, which is a compliant court, and it can no longer be justified, especially as there are now full appeal rights to the courts martial appeal court. The Government recognise that removing this power without providing for a "slip rule" to respond to technical errors in sentencing was a lacuna in the Bill. We have looked carefully at how we can rectify this while retaining service input to sentencing. But we wanted to ensure that the military input into sentencing was retained. The Government will table an amendment to achieve this in Committee. It is very closely based on the power of civilian courts under the Powers of Criminal Courts (Sentencing) Act 2000.
The Bill creates two military courts—the court martial, under Clause 153, and the summary appeal court, under Clause 139—to replace existing courts provided for under the separate discipline Acts. The court martial will be a standing court and will replace courts martial convened on an ad hoc basis to deal with individual trials. Like the Crown Court, it will be able to sit in more than one place at a time and deal with different cases. It is not a single court in permanent session. The main advantages of a standing court are that it will be more efficient by reducing some administrative arrangements and making it easier to arrange for preliminary matters to be dealt with.
We expect that in the main, service personnel will be tried by courts comprising members of their own service and that, as now, most matters will be dealt with by courts comprising three service members and a judge advocate, but five members or more for more serious offences. In addition, the Bill creates a service civilian court under Clause 276 to replace the standing civilian court that was established in 1976. Like its predecessor, this court may only sit overseas. It has powers equivalent to those of a magistrates' court when dealing with offences committed by those civilians who are described in the Bill as subject to service discipline. For the court martial and the service civilian court, the Bill creates a more modern and appropriate sentencing regime which primarily reflects changes introduced by the Criminal Justice Act 2003.
14 Jun 2006 : Column 232
I would like to turn to the provisions for dealing with the redress of complaints in Clauses 332 to 335. The rights and freedoms the rest of us enjoy are necessarily restricted in the case of service personnel. I think there can be no argument that, given these special circumstances, they should have a statutory right to make a complaint about any matter that affects them personally. Equally, we are committed to retaining the role of the chain of command in investigating and resolving complaints.
We have known for some time that the current provisions for dealing with complaints of individual members of the Armed Forces are not working as well as they should. The chief complaint about the complaint system was the time taken to resolve complaints. But we have to acknowledge other problems with the current system. It is clear that individual servicemen and women have not had sufficient information or awareness about their right to make a complaint and how to go about it. There is too much evidence that individuals have been positively discouraged from making a complaint, or have no confidence that their complaint will be taken seriously, or think that making a complaint will have a detrimental effect on them.
These issues were brought into sharp and difficult focus by Nicholas Blake's report. We want to address all these issues in the Bill. We think that the provisions, as they stand, together with a related proposal for a non-statutory but independent review of the redress system, go a long way towards doing this. So what are they?
First, the Bill introduces a more streamlined system which will reduce bureaucracy and provide for the majority of matters that cannot be resolved by the commanding officer to pass quickly to a panel outside the chain of command with powers delegated to it by the Defence Council. We have provided in certain cases for a person who is independent of the chain of command, and not a civil servant, to sit on the panel. Whether an independent person sits on the panel will depend on the nature of the complaint; for example, it is unlikely that an independent person will add value if the complaint is about the quality of the food in a mess. But an independent could add value where the complaint is about a course of conduct or type of behaviour that amounts to bullying.
A different panel will be convened for each complaint. The senior membership will never be below one star. The panel will have the full powers of the Defence Council for dealing with redress delegated to it, including financial powers. But the Defence Council will almost certainly reserve some matters for decision by the council or the relevant service board, for example, complaints against decisions by a service board or by a very senior officer, of three-star rank or above.
These complaints may include cases where it had been decided that an officer's service was to be terminated as a result of administrative action, for example following a civil court conviction, or where a person had disputed an appraisal report completed by
14 Jun 2006 : Column 233
a three-star officer. In parallel, but on a non-statutory basis, we had initially proposed that the complaints process would be reviewed annually and publicly by an independent external reviewer. In response to Nicholas Blake's recommendation, and to representations made by Members during the consideration of this Bill in another place, we propose to go further.
We will extend the role of the external reviewer to enable him to receive complaints directly from a service person or allegations from a family member or other third party. Where that happens, the commissioner will be able to refer the complaint or allegation directly to the right level of the chain of command, usually the commanding officer. That will trigger machinery so that if there is a complaint it will be investigated. Whatever happens, the commissioner will be informed of the outcome of that complaint.
We shall table amendments to the Bill to make this appointment of a service complaints commissioner statutory. The commissioner would have direct access to Ministers. He would report annually and the report would be published. We believe that this system preserves the responsibility of the chain of command for investigating and dealing with complaints and allegations while offering a complementary route for complaints to be placed in the hands of the commanding officer. This may be of particular value to those who might feel inhibited from going directly to the commanding officer.
A further area where we are harmonising and modernising provisions is in relation to boards of inquiry, or service inquiries as they will be known under the Bill. We think it is essential that the services keep the ability to hold internal investigations with the purpose of establishing the facts about an incident and making recommendations to prevent it happening again. It does not replace a coroner's inquest and is not, and does not purport to be, a tribunal that is compliant with Article 2 of the European Convention on Human Rights.
As now, Clause 339 provides for much of the detail to be made in subordinate legislation. Again, this is an area on which Nicholas Blake made recommendations in his report. We agree with Mr Blake that families should be given as much information as possible about the proceedings and the findings. Family members may also attend to give evidence. But we would not wish to extend to next of kin or their representatives a statutory right to attend such inquiries, or to hold such inquiries in public. This would change the character of the inquiry, which is internal and focused on preventing a recurrence of the incident or accident, and would confuse the purpose of an inquiry with that of an inquest or court of law. As a result, a right of attendance would give rise to expectations which the inquiry would not always meet. We also have a concern to ensure that there are no inhibitions on witnesses that might affect the frankness of evidence. There are practical concerns, too, given how inquiries are conducted often very quickly and overseas. We also accept that there may be circumstances in which
14 Jun 2006 : Column 234
a family's attendance at a particular inquiry would be acceptable, when it would not impede its effectiveness. In these circumstances, we are content that some discretion about attendance may be exercised.
We ask an enormous amount of the men and women of our Armed Forces, regular and reserves, and their families who support them. We place particular trust in commanding officers and the chain of command, as do those under command, and we take pride in the exemplary way in which they conduct themselves, sometimes in very difficult and dangerous circumstances. I think that we all share a common purpose. We want to provide the Armed Forces with a fair and modern service criminal justice system that will better support the way in which they train and operate today.
I have mentioned two areas where the Government intend to bring forward amendments. We expect to table a small number of other amendments to clarify or improve existing provisions. I shall ensure that noble Lords are given these in good time. I look forward to the detailed scrutiny that we shall give the Bill in Committee and I commend it to the House.
Moved, That the Bill be now read a second time.—(Lord Drayson.)
4.46 pm
| Next Section | Back to Table of Contents | Lords Hansard Home Page |