Armed Forces Bill

Lord Morris of Aberavon Excerpts

2nd reading
Tuesday 7th September 2021 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I too congratulate our Armed Forces on their conduct in the evacuation from Afghanistan. During my national service—there cannot be many of us still around in Parliament—my command in Germany was a platoon of 30 men. From time to time, I was deputed to take a section of 10 men fully armed on the overnight train from Hanover to Berlin, with all blinds down, in order to maintain our right to travel from the British zone to the British sector in Berlin. Our limited training was for war and the maintenance of peace on the border with the Russians. I make this point to emphasise that our young men had no training in crowd control, let alone receiving babies in arms across wire fencing. I therefore congratulate them even more.

I once prepared a speech for your Lordships’ House detailing the history of British Forces fighting in Afghanistan. I did not make the speech because there were Welsh regiments fighting in Afghanistan at the time and we lost a large number of men, and many lives were permanently changed, including that of the commanding officer of the Welsh Guards.

I want to concentrate on the court martial system. I give notice that I intend to move an amendment to set up an inquiry into the merits of bringing the system into line with civilian courts without endangering military discipline. I first raised my concerns about courts martial as far back as 2017, following the case of Sergeant Blackman. The noble Baroness responded with a speed unaccustomed in the Ministry of Defence and announced an independent and more in-depth look at the service justice system. We are indeed indebted for the report of His Honour Shaun Lyons and Sir Jon Murphy. However, I fear that the report and the Government’s conclusions in the Bill are a missed opportunity to bring courts martial into line with our civil courts.

I am not concerned with the bulk of the work of the courts martial in their dealings with minor offences. The first point I want to make is that the Armed Forces are considerably smaller than in my day as a young soldier, and life in the forces for soldiers and their families is now much closer to life for their civilian counterparts. When I was Attorney-General, I set up a protocol that, if any difficulties arose in prosecutions, the differences should be finally resolved by the Attorney-General. I welcome Clause 7 on the role of the Director of Public Prosecutions; it places him in the senior role and, of course, he will be guided by the Attorney-General.

My concern is with the more serious offences of murder, manslaughter, rape and serious injuries. In the courts, in my professional life, I have had to deal with many of those. I suspect that they are in the minority of cases dealt with by courts martial, and probably quite rare. Judge advocates who preside over courts martial have only limited experience of dealing with such cases in their own courts, although, of course, they sit from time to time in the civil courts. The Bill empowers the Lord Chief Justice to nominate a circuit judge to preside over courts martial as only a minority of circuit judges are licensed to try murder and rape cases. May I be reassured that this power will be exercised in the same way whenever a circuit judge is nominated?

I come to my main point: the Secretary of State should set up an inquiry to consider bringing the whole system of murder, manslaughter, rape and serious offences into line with court procedures. Courts martial now reach their decisions by a majority verdict of their lay members. It is proposed in Schedule 1 that where there are three members of a court martial their decision can be made by a majority of two to one, and appropriately where there are other numbers. I do not think that a majority of two to one is fit for purpose in this modern age—or, as the Minister said as far back as 2017, when she set up the inquiry—as effective as it can be for the 21st century.

Why cannot our servicemen have the same rights as ordinary citizens and have a jury of 12 persons with the detailed control of a majority verdict, whereby it is set out in public how many people have voted one way for a conviction and how many have not? As I understand it—the Minister can confirm this—courts martial do not announce whether there is a majority or whether the verdict is unanimous. In all those circumstances, given the time available I wish to return to the issue in Committee so that we can have a definitive view on why soldiers cannot have the same privileges as their counterparts in civilian life.