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Lord Astor of Hever: My Lords, I thank the Minister for explaining what the Government seek to achieve by bringing forward this Bill. With a few important exceptions, we welcome the Bill. It has been very helpful to us during our consideration of the Bill to have had such clear Explanatory Notes, and the Minister and his colleagues are fortunate to have been so well supported by an excellent Bill team.
The Bill has been changed and improved since its original introduction in the other place, and a number of sensible amendments proposed by my honourable friend the Member for Aldershot, as well as some unhelpful ones proposed by others, were resisted. We look to persuade the Government to change their mind here on some at least of the former and congratulate them on their resistance to the latter.
As stated yesterday by the Minister for the Armed Forces, we in this House expect to be presented with further government amendments to provide for a services complaints commission; the Minister has just mentioned that. These amendments, when we have them, will be a qualified and partial step towards meeting the recommendations of Mr Nicholas Blake QC, arising from his carefully considered report on the distressing events that took place at Deepcut barracks. The assessment by Mr Blake and others of the important and difficult issue of harassment was accepted by the Government, but they have none the less avoided proposing legislation that might help. We have therefore prepared further amendments addressing that important issue.
Similarly, the Government claim to have accepted Mr Blake's recommendations in relation to the "independent assurance" of,
However, we want to know why the commissioner will not be embodied in the military system. We believe that it is essential that his appointment does not undermine the chain of command. Instead, the Government have expressed their intention to establish these military assurance and inspection systems under the civil Police and Justice Bill. Can the Minister clarify the Government's thinking on this point? In our view, military justice must be a wholly distinct and different process of its own. Thus the procedures for the assurance and inspection of the system must be properly and distinctively entrenched in military law—that is to say, in the Bill before us.
At this stage, I shall make two points arising from Deepcut. First, both the government amendments and our intended amendments are a new area for consideration and scrutiny. Their terms have not been considered in the other place, so a particular duty falls on your Lordships' House to scrutinise them carefully.
The second is that, by definition, they set out to change the present law as it is and as it was understood to be. Fortunately, this last consideration does not apply to much of the substance of the Bill. Its general purpose and effect is to re-enact in a consolidated form the main provisions of the three single service discipline Acts. This is a necessary thing to do and one that is seriously overdue. The old Acts had been so frequently and extensively amended that they had become unworkable and indeed unacceptable as foundation documents.
That the special constraints and duties that apply to all members of the Armed Forces and to those civilians who live and work alongside them should be set out in a single coherent body of law is reasonable provided that the terms of such a body of law sensibly recognise that some circumstances alter cases. Nevertheless, there are fundamental differences between each of the services, and the Select Committee in the other place did recommend as a result of taking evidence that courts-martial panels ought to be composed of a majority of personnel of the service of the accused.
It is surely self-evident that those of our fellow citizens who serve as members of the Armed Forces are exactly that—members of a lawfully armed and disciplined force. They have in appropriate circumstances to use force, including as necessary lethal force—a lawful power and duty in fact to kill. It is precisely that body of law that so authorises them and disciplines them in that exceptional power and duty which we now have before us for our careful consideration and adjustment.
One thread in the debate cropping up at certain points in the Government's arguments, although heard more strongly from elsewhere, is that the process of military law should become as far as possible the same as the processes of civilian law—that an objective should be to assimilate. I have to say again that this logic—that one size should fit all circumstances—is not an objective that we share. Our objective is that the governing document of military law—this Bill when enacted—should properly recognise the unique features of military duty and should be drawn up and applied accordingly.
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Disciplined Armed Forces operate at all times within the law, but a law that clearly and properly recognises the exacting circumstances in which it has to apply. It is this rationale, the separateness of military justice, which will form a continuing theme in the amendments to the Bill that we will propose. We shall focus particularly on the need to protect the chain of command. That is, I believe, a common objective of all concerned with military justice and discipline. The Minister reiterated it in his Deepcut Statement in the other place yesterday. It is the feature of the Bill that has attracted the most attention among those serving today in the Armed Forces who have properly expressed their views to us and probably to many other noble Lords speaking this afternoon.
To achieve that objective—a continuing, positive and undiminished role for the chain of command—a number of adjustments will need to be made to the Bill as it has come to us. We are concerned that the Government are eroding the powers of commanding officers. COs have to act. If they do not, they put their entire ship, regiment or squadron at risk. They have to make hard decisions, frequently based on imperfect information. If they get it wrong, they have to suffer the consequences.
We cannot allow the creation of a culture in the Armed Forces, particularly the Army, where soldiers are too scared to open fire because they fear the threat of prosecution. British soldiers are trained to react instinctively to events. The Minister will be aware of the survey carried out at the end of last year by the Army within 7th Armoured Brigade in Iraq which found that there is a widespread fear of opening fire and of being investigated for opening fire.
Armed conflicts—wars, to use the simple term—are usually conducted against opponents who reject what we see as the rules of civil society. That does not mean that we ourselves should reject those rules, but it does mean that our Armed Forces must be prepared and authorised to operate under rules that recognise that this may be, and indeed is likely to be, the case with their opponents. The job of the Royal Military Police requires diligence and common sense. It is the latter that appears in some cases to have been lost. Every "incident" has to be investigated for the possibility of prosecution, very possibly on the claims of the enemy or of those seeking financial gain. This law must recognise that the incident will always seem clearer in the artificial arena of the court of law than in the split second of reality that it took at the time. That is why we shall seek to insist that the Director of Service Prosecutions should have recent and relevant military experience. I make no apology for expressing my feelings on that with some passion.
The Minister mentioned delays. Recent cases have shown that the existing system is disgracefully slow. I welcome the setting up of the Adjutant-General's delay action group, and I know that the Adjutant-General is working hard to cut down delays; yet very little in the Bill attempts to speed things up. We shall therefore table an amendment to chapter 2 of the Bill that sets time limits to proceedings to the effect that unless proceedings are brought from start of
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investigations to start of court proceedings within one year, the matter will be returned to the CO for summary judgment. We on these Benches intend to emphasise the importance that we attach to preventing the recurrence of such intolerable delays in justice by, if necessary, taking the opinion of the House.
The recent acquittal in the court martial of Sergeant Selman and the other soldiers on charges arising out of an event that occurred more than three years before the trial opened is a striking example of the human dimension of what may, and maybe should not, arise in our system of military justice. It also understandably gave rise to strongly phrased expressions of concern that the acquittals meant that the prosecutions were wrongly undertaken in the first place. The noble and learned Lord the Attorney-General, writing in the Daily Telegraph, has defended the process in equally strong phrases. But it is the duty of the Opposition when a succession of such high-profile cases fail to test rigorously whether, in reaching the decision to prosecute, correct procedures have been established and correctly followed and proper tests properly applied. The Prime Minister said last week that he hoped that lessons would be learnt by the prosecuting authorities. This is not the time or place to go into detail, but I draw the attention of the House to the set of 10 Questions for Written Answers that I have tabled. I hope that they will receive candid rather than shuffling or evasive answers. They go to the working heart of the system that this Bill creates.
Another widespread view that has been expressed to us is that the replacement of serving uniformed officers by civilian communication experts—or spin doctors by another name—as public spokesmen for the Armed Forces has led to damaging consequences. We believe that a return to the earlier practice would assist better and more direct understanding of the Armed Forces, and we shall support any suitable amendment in that sense. My noble friend Lord Kingsland will cover the supervisory role of the Attorney-General, and my noble friend Lord Campbell of Alloway has an amendment on that issue. I hope that the noble and learned Lord the Attorney-General will respond on this issue in Committee. He ducked out of our debate last July. Defending the Government's ban on hunting was placed higher on his list of priorities than were the interests of our Armed Forces.
Other amendments that we will bring forward include placing the rules of engagement on a statutory basis, which is not the case at present, and giving statutory basis also to the Manual of Military Law. We shall be looking, too, to see whether some of the procedures in military law and justice pioneered in Australia may be of value.
We have a wealth of experience in our speakers' list, from all sides of the House, and I shall listen carefully to all that is said. I hope that the Government will do the same—listen carefully, even when they are initially disposed to disagree, and that, out of our deliberations today and subsequently, a Bill will emerge that meets our limited, but specific, concerns, as well as serving the general purposes on which we are all agreed.
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