Armed Forces Act (Continuation) Order 2019

Lord Foulkes of Cumnock Excerpts

Wednesday 20th February 2019 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I do not know how often we debate the consequences of the Bill of Rights 1688, but, as the noble Earl said, this is one of them. The Bill prohibited a standing army without the consent of Parliament—a reaction, I suspect, to Cromwell’s stewardship.

When I was a young MP, we had an annual Army Act, which provided an opportunity to raise any issue concerning the Armed Forces. It was a day out for old warriors, from Colonel Wigg up or down, as the case was, to bait Jack Profumo, Christopher Soames and other War Office Ministers. I joined in, despite my limited experience as a Welch Fusilier subaltern, whose occasional job was to be in charge of 10 men, fully armed, taking the night train from Hanover to Berlin, with the blinds down, in order to assert our right to go from the British zone to the Berlin sector. Fortunately, World War III did not break out. Now, instead, we debate annually a statutory instrument, as the Minister said, with the same opportunity to raise any issue concerning the Armed Forces.

The 2006 Act is subject to a quinquennial review, and the next Bill will be in 2020. Knowing this, and following the case of Sergeant Blackman, I took the opportunity to alert the Ministry of Defence to my concern with some aspects of the court-martial system. I did this through Questions in September and October 2017, and a short debate in November 2017. I thought that my dual experience as both a Defence Minister and Attorney-General might be useful.

I was fortunate in my timing with the reply from the Minister, the noble Baroness, Lady Goldie, who said that,

“the Government have decided that the time is now right for an independent and more in-depth look at the service justice system so that we can be assured that it is as effective as it can be for the 21st century”.—[Official Report, 23/10/17; col. 766.]

I was not alone in criticising some aspects of the court-martial system. Indeed, the Judge Advocate-General, Judge Blackett, did exactly that, and I pray in aid his comments.

The MoD moved with unparalleled speed after I raised the issues in the House—I suspect that the noble Earl, Lord Howe, was behind this—by appointing a retired circuit judge, the former Chief Naval Judge Advocate, His Honour Judge Shaun Lyons, to conduct the review. I was fortunate, through the good offices of the noble and learned Lord, Lord Thomas of Cwmgiedd —the former Lord Chief Justice, as we all know—and the noble Lord, Lord Thomas of Gresford, to meet Mr Lyons and to raise with him some of the issues. The noble Baroness, Lady Goldie, said in the November 2017 debate that,

“we look forward to the report of his review in around a year’s time”.—[Official Report, 23/11/17; col. 390.]

Specifically I ask, now that we are in February 2019— 15 months on—and because there has been no public consultation, could noble Lords see the report if it is ready now, before any more work is done on the next Bill?

As the Attorney-General, I initiated and signed a protocol deciding, in those cases where civilians are involved, the most appropriate judicial machinery. I trust that the protocol is working well. Given the reduction in the size of the Armed Forces, despite the fact that various courts have held military courts to be human rights-compliant, there is a case for bringing military courts more into line with civil courts, particularly for the most serious cases, which are my concern. Experienced military prosecutors will ensure that the services’ general discipline needs will be protected. I emphasise that it is the most serious cases, such as murder and rape, which should be tried by a jury, with a judge appointed by the President of the Queen’s Bench Division, who allocates members of the High Court Bench for the more serious cases in our courts, where he or she sees the need. This should be a routine matter as opposed to an occasional departure. The very fact of the rarity of murder and rape cases reinforces my view that an unfair burden is imposed on the judge advocate when such cases are the day-to-day business of High Court judges, who deal with these matters, and licensed senior circuit judges.

The membership of the court martial is hierarchical, and I am told that the most junior member is asked to express his conclusions first. This is not an easy task for a junior member of the court martial, who might be sitting for the first time. Secondly, court-martial verdicts are decided by a majority. You can be convicted of murder or other serious offences by a three to two verdict. This is hardly 21st-century stuff. Thirdly, the voting is secret. In New Zealand in recent years, using the UK system as a model, they have decided that convictions must be unanimous. In our civil courts, there are strict procedural rules for juries to endeavour, first of all, to reach a unanimous verdict and, if they fail to do so, to reach a verdict by a majority of 10 to two where there is a jury of 12. Lastly on that point, the voting figures are made known to the public, to the court and particularly to the accused.

I trust the review will address the problems which I raised in some detail in 2017, and be bold despite the findings in the past on human rights compliance with the existing procedures; and also fulfil the Government’s aim, as the noble Baroness said in November 2017, of a court-martial system that is effective and also fair, in my words, for the 21st century.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I thank the Minister for his exceptionally helpful introduction to this important issue. As he said, this is a vital matter, which we review through an Act every five years and a renewal every year. It illustrates the fact that this is a parliamentary democracy in the United Kingdom. Sometimes, some people, particularly down the other end, forget that this is a parliamentary democracy; Parliament’s role needs to be emphasised, as it is in this continuation order. It is much better than a presidential system, where the president is the commander-in-chief and has more extensive—almost unlimited—powers than the head of Government in the United Kingdom, in a parliamentary democracy. I welcome that.

I want to take the opportunity to raise a related matter. I thank the Minister for his recent excellent written replies regarding an accident that took place in Scotland on 1 September 1994. Someone who saw his replies remarked, “These are exceptional”. Normally, written replies from Ministers, particularly in the House of Lords, are scanty, whereas these were full and helpful.

The incident took place on 1 September 1994 when RAF Tornado ZG708 crashed on a low-flying exercise. Flight Lieutenant Peter Mosley, the pilot, and Flight Lieutenant Patrick Harrison, the navigator, were both killed instantly. The nephew of one of the flight lieutenants, Jimmy Jones, has written to me again. I raised this issue in the other place in 1994 when I was a Member of Parliament and I have raised it on a number of other occasions, because the board of inquiry into the accident was completely inadequate and the relatives received no explanation of why their loved ones were killed and no indication of the cause of the accident.

In Scotland, as the noble and learned Lord, Lord Keen of Elie, will know, the fatal accident inquiry procedure does not commence automatically in relation to such incidents, and there was no such inquiry. This is an astonishing situation. I do not know if the noble and learned Lord, Lord Hope, recalls the situation but he will certainly know the general legal framework in Scotland, where we do not have automatic FAIs into these military accidents. It seems a strange anomaly.

In thanking the Minister for the written replies, I ask him now, in the light of the plea I am making, to pursue this matter further with the Scottish Government and the Law Officers in Scotland to see whether something can be done, even at this late stage, to satisfy the relatives’ concerns. It is important that we are seen to be fair to these two men, who were prepared to fight, and ultimately to give their lives, on behalf of the United Kingdom. We should give some explanation to their relatives.

I would like to return to some of the provisions of the order. It says:

“The territorial extent of this instrument is the United Kingdom, the Isle of Man and the British Overseas Territories except Gibraltar”.


Why is Gibraltar excluded? Our soldiers, sailors and airmen presumably serve there. They may be covered by some Gibraltar legislation, but it is important to know why Gibraltar is excluded from the order. I think that is my only question.