Armed Forces Bill

Debate between Lord Lancaster of Kimbolton and Lord Thomas of Gresford

Committee stage
Tuesday 2nd November 2021 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, we on these Benches are very grateful to Sir Richard Henriques for his report and recommendations. We understand why, in the three months since they were published, they have received only light-touch consideration from the Government. Perhaps I can be forgiven for giving some historical context to the role of the chain of command in courts martial, because it appears in Amendment 43 and in the Bill.

In 1757, Admiral Byng was convicted not of personal cowardice but of failing to do his utmost to engage the enemy in an attack upon French forces besieging the British garrison in Menorca. The truth was that his fleet of ships had been hastily assembled by the Admiralty. They were in poor condition and he had to retire to have them repaired, but he was convicted by court martial under the Articles of War and, despite pleas for clemency, even by the Prime Minister William Pitt himself, George II refused to commute the sentence. Admiral Byng was shot on the quarterdeck of a British ship by a firing squad. Your Lordships will recall that Voltaire, in his book Candide, commented that in Britain, it is good to kill an admiral from time to time to encourage the others—“pour encourager les autres”.

Courts martial were seen then, and for 200 years afterwards, as an instrument of discipline rather than justice. It is undoubtedly the case that men were shot for cowardice in the First World War to encourage their comrades to go over the top. Discipline was seen to be a function of command, and the commander must achieve discipline to secure cohesive action and singleness of purpose.

It was the Labour Government of 1946 who appointed a commission to examine the administration of military justice. It advised the appoint of a civilian judge-marshal but made no change in the way the board and the prosecuting officer were appointed. So it was that in 1996, the structure of courts martial was still within the chain of command. The convening officer, who was the field officer in command of a body of the Regular Forces within which the person to be tried was serving, was the person who decided the charges against the defendant, appointed the board and the prosecuting officer and arranged the trial. He—the convening officer—could dissolve the court martial during the trial, in the interests of the administration of justice, and could comment on its findings publicly, in the interests of discipline. He confirmed the findings and could reject or change the sentence, so the board was still subject to command influence.

A fair and impartial trial is obviously difficult in an atmosphere of command control. All the personnel connected with the trial are dependent, or were at that time, on the commanding officer for assignments, leave and promotion. A member of the board could not deviate too far from his commander’s views of the case if it might affect his career. That is why, following the criticisms made by the European Court of Human Rights in Findlay, we brought about such significant changes in 2006. Justice is now the dominant element and in a volunteer army, this is vital to morale and to the retention of personnel, as Sir Richard Henriques himself comments.

Despite this history, the Government have rejected Sir Richard’s recommendation 14. In paragraph 5.4.1 of his review, he says:

“An investigating body, charged with the responsibility of investigating serious crime allegedly committed by members of the Armed Forces, must be hierarchically, institutionally and practically independent both of the chain of command and of those whom they are under a duty to investigate.”


The wording that he uses—“hierarchically, institutionally and practically”—comes from the judgment in Jordan v United Kingdom, 37 EHRR 2. Explicitly, the European court was following Lord Steyn in 2003 in the Appellate Committee of this House, where he said:

“Public perception of the possibility of unconscious bias is the key.”


That issue of public confidence was raised by the noble and learned Lord, Lord Thomas of Cwmgiedd, at the last hearing of this Committee.

However, instead of following that wording and explicitly breaking away from the chain of command, the Government have put forward the existing wording taken from the 2011 Act, as the noble Baroness, Lady Goldie, pointed out. New Section 2A, proposed by the noble Baroness’s Amendment 42, would impose a duty on the provost marshal to ensure that all investigations are “free from improper interference”. That in no way matches the language of recommendation 14 of Sir Richard Henriques’s report, which makes an explicit break from the chain of command.

In recommending a strategic policing board for civilian governance and oversight of the provost marshal for serious crime, in paragraph 5.6.13 of his report, Sir Richard Henriques looked around the world. He looked to New Zealand, Australia and Canada. He also considered the function of the independent advisory group, which was formed for Operation Northmoor in this country. It appears that he agreed the composition of the strategic policing board with the Chief of Defence Staff and the Chief of Defence People.

Today, the noble Baroness told us that the Government have accepted the strategic policing board’s structure, but it is something to be put into the future. The strategic policing board is the person who stands behind and is the instrument of governance of the proposed provost marshal for serious crime. You cannot have one without the other, so perhaps the noble Baroness will explain how you could appoint a person to a position and give them responsibilities without first having the strategic policing board of civilian governance and oversight that Sir Richard Henriques called for.

Finally, I add my support to Amendment 66 and its requirement for a report to ensure that Sir Richard Henriques’s recommendations are carried out.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I support this amendment, but I have a number of questions for my noble friend the Minister.

The tri-service serious crime unit is definitely a good idea but, given that the Armed Forces Act brought together the three single-service Acts back in 2006, I have for some time questioned why we do not have a joint service police force, given their relative sizes. The Royal Air Force Police is commanded by a group captain; the Navy, by a commander; and, of course, the Army provost marshal is a one-star brigadier. Who will own this organisation? If it is not going to be linked to one of the other service police forces, how can we ensure that it will not wither on the vine in time? For example, what will happen to the SIB, which has a proud operational record over the past 40 years? What will its role be vis-à-vis this new organisation? Equally, as we create what will be a fourth provost marshal, who will sit on the National Police Chiefs’ Council? Currently, the three single service provost marshals do. Does this mean that now there will be four? How will that look? Will defence be speaking with a single voice?

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Lancaster of Kimbolton and Lord Thomas of Gresford

Committee stage & Lords Hansard
Tuesday 9th March 2021 Lords Chamber

[Lord Lancaster of Kimbolton (Con)]

It is a great pleasure to follow the noble Baroness. I am particularly interested in her point about the Attorney-General not only offering advice on the potential conflict but being put in this position as well.

These amendments firmly caught my eye. The noble and learned Lord, Lord Falconer, outlined in his opening comments some of the challenges of overseas operations in a military context and politicisation—although in my mind all conflicts are political in one form or another. I immediately looked to see what historical examples there were of advice being published by the Attorney-General. There are not many. If we were to continue the theme of overseas operations and look back to probably the most controversial one of recent years—from 2003—the Attorney-General’s advice was certainly not published for that. Nor, I understand—though I am happy to be corrected—was it even given to Cabinet at the time. It is worth remembering how times change. There now seems to be an eagerness to publish the advice of the Attorney-General that was not there in 2003.

My instinct is that giving reasons goes against the grain of the constitutional principle regarding law officers’ advice: law officers do not confirm the facts or publish their legal advice or principles. I think that that is an important principle that enables frank advice to be given. If we accept that, an exception would create a slippery slope that could extend to other areas. There is also the reality that the sorts of information that the reasoning would be based on could have security implications, so should not be disclosed and would largely have to be omitted anyway. Lastly—I am no expert and this is a genuine question for noble and learned Lords in the House—I think that a judicial review, based on ordinary public law grounds, would surely be a sufficient check on decisions such as these.

[Lord Thomas of Gresford (LD) [V]]

My Lords, the role of the Attorney-General in giving consent to a prosecution has been much discussed in the past. Following on from the remarks of the noble Lord, Lord Lancaster, I note that the Law Commission reported in 1998, and the noble and learned Baroness, Lady Scotland, when she was Attorney-General, conducted a consultation following the controversy over the legality of the Iraq war. The precise result of that consultation is not clear. I am interested in the suggestion made by the noble Baroness, Lady Chakrabarti, that the role requires a fresh review; I agree with that.

In the context of this Bill, it is a simple question: in what circumstances is it appropriate for the Attorney-General to second-guess the decision of either the Director of Public Prosecutions or, in this proposal, the Director of Service Prosecutions? The noble Baroness, Lady Chakrabarti, also made an important point by referring to the conflict of interest that would arise if the Attorney-General has advised on the conduct or legality of an operation, or on the treatment of prisoners, and the issue is, for example, the way in which prisoners have been treated.

I remember that Lieutenant-Colonel Nick Mercer, when he was the senior legal adviser to the group in Iraq, advised that the way in which prisoners who had been taken were being treated—they were made to kneel with a sack over their head and their hands bound behind their back—was a breach of the European convention. He was howled down by the Ministry of Defence for voicing such an outrageous view—one that was subsequently upheld in the European Court of Human Rights.

If the presumption against prosecution survives, the DSP starts with a curb on his discretion, as we have discussed. If he thinks that the circumstances of a case oblige him to ignore the presumption against prosecution, his decision will be based on his judgment, first, whether there is sufficient evidence on a balance of probabilities to result in a conviction and, secondly, whether it is in the public or service interest to prosecute. If Amendment 3 were to be successful in any form, he would also have to take an overall decision on whether the possibility of a fair trial had been compromised by delay.