Armed Forces Bill

Lord West of Spithead Excerpts

Tuesday 1st March 2016 Grand Committee

There is a risk that more junior members of the Armed Forces may lack experience of command and of the exercise of service discipline at a sufficiently high level to enable lay members who assess the actions of those who appear before them in the court martial in the appropriate command and disciplinary context. The second point to make is that the existing rules also seek to guarantee the independence and impartiality of those members, to ensure that each member may act in accordance with conscience. I suggest that the presence on a court martial board of lay members of considerably more junior rank than the accused or other board members may put that at risk. That is also why provision is made in court martial rules so that the president of the board must always be of superior rank to every person to whom the proceedings relate.

[Lord West of Spithead (Lab)]

My Lords, if I may interject, I have been a president of a court martial board, I have sat on a court martial board and indeed I have been court-martialled, which most people here probably have not. What I wanted to say was that I agree completely with what the Minister has been saying, and it is really important. You could answer the question with the discipline aspect. The knowledge of what instils discipline, and what is important for it, is one of the crucial aspects of this, which makes it different from a case of someone being accused of murder, for example. So much is to do with the application of discipline.

[Earl Howe]

The noble Lord, as so often, has hit the nail right on the head. What he said encapsulates much of what I have been saying, and I am grateful to him.

Amendment 1 would enable court martial rules to provide that members must be drawn from each and every branch of the armed services. The current law allows for the appointment of members of any of the three services to a court martial panel. Before the 2006 Act, when each of the three services had its own separate system of service discipline, the panel almost always consisted of members of the same service as the accused. The current practice is to appoint lay members, the majority of whom come from the same service as the accused, but this is not set down in law. There is therefore nothing in law to prevent lay members in any particular case being drawn from any branch of the armed services, so I suggest it would not be necessary to amend legislation to achieve the effect required.

The composition of the panel was considered by the House of Commons Select Committee during the passage of the Bill that became the 2006 Act. General Sir Mike Jackson said to the committee at the time:

“For me the default setting would be that the soldier … on the face of it will be more comfortable being tried by members of his own Service”.

The committee considered that where a mixed panel of lay members was appointed, the senior lay member and the majority of members should come from the same service as the accused.

The noble Lord’s Amendment 3, on court martial findings and sentence, would change the law governing decisions of the court martial on findings of guilt or innocence, and sentence. The court martial system allows conviction or acquittal by a simple majority of the lay members of the court martial, with no need for a retrial in the event of a lack of unanimity or a qualified majority.

The judge advocate does not vote on findings of guilt or innocence. In the case of an equality of votes on the finding, the court must acquit the defendant. The lay members are directed, if at all possible, to reach a unanimous verdict, and to decide by a majority only if they cannot all agree. That provides a considerable safeguard against the lay members moving too easily to a majority decision. As the noble Lord, Lord Thomas, indicated, this is a long-established process: the service discipline Acts of the 1950s, which preceded the Armed Forces Act 2006, also provided for majority decisions at court martial. The great advantage of reaching a decision by majority is that it avoids a “hung jury”: there is no need for a retrial in the event of a lack of unanimity or a qualified majority.

The Crown Court process is that unanimity or—with the judge’s permission—a qualified majority is required for any verdict: guilty or not guilty. If unanimity—or a qualified majority—is not achieved, there is a “hung jury”, and this produces a retrial, not an acquittal. Importantly, under the existing court martial process, the accused may be convicted by a simple majority, but he or she may also be acquitted by a simple majority. In the Crown Court, most of a jury may wish to acquit an accused but cannot achieve the necessary unanimity or qualified majority, yet the accused may be retried by a new jury, who may convict.

The court martial process also has the advantage that it allows a decision to be made without it being apparent whether the verdict is unanimous or by majority. As the panel must keep its voting secret and is not required to seek the court’s permission for a majority decision, there are no lingering doubts outside the court about whether an acquittal was correct. It is for these reasons that proposals for unanimous or qualified majority verdicts in the court martial have up to now been rejected.

My noble friend Lord Attlee suggested that we could not show that the current system is satisfactory. The Government have been successful in establishing both in the European Court of Human Rights and in the civilian courts that the court martial system is in principle safe, independent and impartial. The current system for majority verdicts has been considered twice by the Court Martial Appeal Court in the last five years and was on both occasions held to be fair and safe. The Court Martial Appeal Court, which is made up of the same judges as sit in the civilian Court of Appeal, has held that there is no ground for deciding that a verdict by a simple majority of the lay members of a court martial is inherently unfair or unsafe. They noted, among other points, that the overwhelming majority of criminal trials in England and Wales are decided in magistrates’ courts and the process of simple majority verdicts is long established in those courts.

The issue of majority verdicts was raised by Sergeant Blackman—as was referred to by the noble Lord, Lord Thomas—in his appeal against conviction in 2014. He argued that it was discriminatory to apply trial by the court martial rather than trial by jury in the Crown Court because the court martial offered less protection to the accused than jury trial. The Court Martial Appeal Court again held that trial by the court martial on the basis of a simple majority was not unsafe or unfair; moreover it was not discriminatory.

I should add that Amendment 3 would make very different provision in the service system from that in the criminal justice system if it is the noble Lord’s intention that there must be a panel of at least five lay members in all cases in the court martial, even in cases equivalent to those which may be tried in the civilian system by a single magistrate or three lay magistrates, who may make decisions by simple majority. That difference in provision would in one respect be magnified yet further by the amendment tabled by my noble friend Lord Attlee to increase the size of the panel of lay members on court martial cases to 12.

Amendment 3 would also expose the deliberations of the lay members of the court martial. Proposed new subsection (3) would require the president of the lay members to state in open court the number of panel members dissenting where the majority finding is that the defendant is guilty. One important safeguard of the independence of the lay members of a court martial is the confidentiality of their deliberations. The question whether court martial verdicts are unanimous or by majority is not asked or investigated at all. This safeguard is in place to produce a fair trial process. For this reason, the Armed Forces Act 2006 makes provision about offences relating to members of the court martial and their deliberations. It contains provisions which mirror those in the Criminal Justice and Courts Act 2015 which apply to jurors in the Crown Court. Under these provisions, it is an offence for a person intentionally to disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of the court martial for proceedings in the course of their deliberations. It is also an offence to solicit or obtain such information. This is subject to exceptions but these are very limited. For example, the offence is not committed where information is disclosed for the purposes of an investigation into whether an offence of contempt of court has been committed by, or in relation to, a lay member.

In the Government’s view, the confidentiality of the deliberations of lay members should not be compromised unless there is a compelling case for doing so, such as for the purposes of an investigation into whether an offence of contempt of court has been committed. We are not convinced that there is a compelling case for requiring voting figures to be disclosed.

The effect of the proposed new subsection (4) would appear to be to expose whether conviction or acquittal was unanimous or by majority. In our view, it should never be known that a defendant has been acquitted by a majority decision. Consistent with the position which applies with jury verdicts in the Crown Court, we think that it would be wrong in principle for any request to be made of the lay members which identifies an acquittal by a majority where the defendant is acquitted. The acquitted defendant should not be exposed to public ignominy consequent on the recording of the fact that one or more lay members was convinced of his or her guilt. The same arguments may be made in response to my noble friend Lord Attlee’s Amendment 11, which would make provision for academic research into the workings of the board of lay members in court martial cases. We are not, therefore, convinced that there is a compelling case for compromising the confidentiality of the deliberations of lay members by allowing research of the kind proposed by this amendment.

Returning to Amendment 3, another effect of this amendment would be to change the role of the lay members in court martial trials. In response to Amendments 1 and 2, I explained how the role of a lay member in the court martial differs from that of a juror in a Crown Court trial. In the Crown Court, the jury’s role is limited to findings of fact and sentencing is a matter solely for the judge; in the court martial, the lay members and the judge advocate vote on the sentence. In the case of an equality of votes on the sentence, the judge advocate has a casting vote. The judge advocate advises the lay members on the appropriate sentencing guidelines for the offence.

Proposed new subsection (5) in Amendment 3 would change this by making the determination of sentence a matter for the judge advocate alone, although he or she would be required to consult the lay members. We would see that change as an erosion of an important difference between the civilian criminal justice system and the service justice system. The military context and service experience should be considered during sentencing as well as in findings of guilt or innocence. I submit that the input from the board members on sentencing is thus very important.

As I explained earlier, the existing provisions governing sentencing reflect the fact that the court martial is part of an overall system of justice and discipline. I spoke of how all service courts must apply statutory principles set out in the Armed Forces Act 2006 as to the purpose of sentencing. These include “the maintenance of discipline” and “the reduction of service offences”. These principles reflect special aspects relating to the service justice system, which explains why there is direct involvement of the panel in sentencing, and I remind noble Lords of those factors that I listed earlier.

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[Earl Attlee]

My Lords, I am grateful to the Minister for the response to my Amendment 1A. On the point about maintaining discipline, I am not convinced that that would be a problem, especially if the other ranks were no lower than full corporal or equivalent, because they would have a stake in the maintenance of discipline as well. After all, a civilian jury is handling the same problem: they want to discipline other members of society for things that they have done wrong. Therefore, I do not find the maintenance of discipline—

[Lord West of Spithead]

It is very different from civil society. The whole structure of discipline within the military is, I am afraid, very different. That surely is one of the key points: it is people who really understand discipline, how it is applied and have knowledge of it over many years who are actually making judgments, because most of the cases relate to that disciplinary structure. I know that other amendments are looking at whether courts martial should cover other things, which might be another issue. However, in terms of discipline, civil society is very different from military society.

[Earl Attlee]

My Lords, I absolutely agree with the noble Lord—I almost said the noble and gallant Lord; he is noble and gallant, but not technically. My slight worry about the amendment proposed by the noble Lord, Lord Thomas, is that a full corporal would be less understanding and perhaps take a much tougher view than an officer. I am not convinced that the noble Lord is wrong on the argument of the maintenance of discipline, but I will leave the main attack to the noble Lord, Lord Thomas of Gresford, because he is far more capable than I am. I beg leave to withdraw my amendment.

[Lord Thomas of Gresford]

My Lords, I am most grateful to the Minister for his lengthy and very careful response to what I have put forward. I was very amused to learn that rules had been passed that court martial panels may be drawn from across the services. When I proposed that precise amendment to what became the 2006 Act, I was seized by three noble and gallant Lords in the corridor, one of whom said that I should be shot for making such a suggestion.

[Lord West of Spithead]

I am not technically noble and gallant.

[Lord Thomas of Gresford]

I am sure that the noble Lord, Lord West, would have added a keel-hauling or something of that nature.

I am grateful to the noble Lord, Lord Tunnicliffe, for his support for my amendments. No doubt we will have some fruitful discussion on a way forward. I agree with the noble Earl, Lord Attlee, that an investigation into how court martial panels deliberate would be apposite; it is a good suggestion. There are all sorts of problems around it, and if the public do not have confidence in the court martial system, which is what I believe and the thrust of what I am saying—that although I personally have confidence, the public do not—such an investigation would in one way or the other be very good.

However, the noble Earl may have misread my amendments. I am not looking for leniency. I have no reason to suppose that court martial panels that consisted of other ranks would be more lenient; I rather agree with him that they could well be tougher. What such panels would be is more understanding. They would appreciate things more. I know that the Armed Forces regard themselves as a family and I concede to what the noble Lord, Lord West, has said, but there is a gap in understanding between the other ranks and the officers of what motivates people. That is where an extended panel would be useful, helpful and more just. It is not about leniency at all. The noble Earl should not think that I am a particularly lenient person. I have sat as a judge and prosecuted many times, and leniency is certainly not a part of that.

I tend towards the thrust of the noble Earl’s comments, supported by the noble Lord, Lord West, that it is all about discipline. The fact is that if anyone is convicted at court martial of a serious offence, he is out and he loses his pension rights. It is not a question of discipline for a serious offence. As I indicated at the beginning, I have no objection to the court martial system in relation to Sections 1 to 39 of the 2006 Act, which cover mutiny, absence without leave, desertion and issues of that sort. But where I think the court martial system lacks public confidence is when it deals with other criminal offences which are normally dealt with in the Crown Court. The maintenance of discipline is not particularly apposite, in my experience. People who are convicted of serious offences, as I have said, are thrown out.

Many of the Minister’s remarks were addressed to the issue of sentencing. I do not believe that the sentences of the courts martial are particularly wayward, as we have a very good system of judge advocates who assist them in their deliberations. But the noble Earl will know that the current Judge Advocate-General has argued many times—as he did in 2006 before a committee of the House of Commons—that sentencing should be a matter for a professional judge, as judge advocates are, and not left to a panel of officers for whom it may well be their very first meeting with the criminal law in any context. They are not experts. They are appointed to a court martial board—perhaps the noble Lord, Lord West, has more experience of courts martial than most people, from all points of view—but most who sit on a panel do it perhaps once or twice. The president of the court is a more permanent official, of course, but a judge advocate is a professional judge who goes on training course after training course, sits in the Crown Court when not sitting as a judge advocate and has the fullest experience of sentencing and what is appropriate in a particular case. I do not suggest that he should sentence when uninformed himself, nor does the Judge Advocate-General, but that he should consult the members of the panel, listen to their views and take into account the maintenance of discipline, if that is what is required in the case.

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[Lord Hope of Craighead]

Of course we had extraterritorial jurisdiction, but the fact that the crime was committed in Germany was an important factor in deciding the proper course for bringing the case before a tribunal to try the boy for the offence. One has to be careful about the local jurisdiction; I seek to emphasise that point.

[Lord West of Spithead]

My Lords, I have considerable sympathy for Amendment 4, which stems from my view that I see the composition of the board of courts martial as much more to do with discipline and military things. Clearly with some of these very serious crimes, jurisdiction is very important. I am not clear how that could be clarified to make sure that things do not slip through the net because of it. However, the other aspect is perception. The noble Lord, Lord Thomas of Gresford, talked about public perceptions of courts martial. I think that there is also the perception of the military about the way in which they are put on trial. If we went down this route mitigation would have to be very clearly put, particularly when in what one might loosely call a war zone where there has been fighting and nation building, because the circumstances in which something like the Baha Mousa case happens are different from the normal civilian understanding. We would have to be absolutely certain that we were able to get that sort of proper mitigation into the civil court. However, I have great sympathy with Amendment 4, because some of these things should not generally be tried by court martial nowadays.

[Lord Tunnicliffe]

My Lords, as I said earlier, I see this debate as being in two parts, of which this is the second part. The development of service law in this country has been going on for several hundred years and we have seen important movements in the past 10 years with the 2006 Act and now with these proposals. I am unsympathetic to what the noble Lord, Lord Thomas of Gresford, proposes in this area, because it goes too deep into the body of military law. There is presumably an argument that you do not need military law on any offence that is covered by an equivalent piece of civil law, but we are not there yet in the minds of either the public or the military. We are on a journey and I think that we are at the right place in that journey, so to carve these offences out of the scope of military law at this point would be wrong. I shall read with great care the speeches that have been made and listen with great care to the Minister’s response. We will ponder on those views but, as a generality, the scope of military law is probably right at this time. I repeat that we should address the courts martial system to make the judgment process analogous but leave the scope substantially as it is.

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[Baroness Gould of Potternewton (Lab)]

My Lords, I support Amendments 5 and 6, which are designed to clarify and reduce levels of rape and sexual assault in the Armed Forces. Fundamentally, I believe that the rights of service men and women are just as deserving of protection as civilians, for whose rights I have campaigned for many years. It is essential that independence and fairness for our troops are at the heart of the military justice system, but the reality is far from that aspiration, and I hope that I will be able to illustrate that.

I repeat the words said only eight months ago by General Sir Nick Carter, Chief of the General Staff, that the Army has,

“an overly sexualised culture in which inappropriate behaviour is deemed acceptable”.

Those words illustrate the problem that many women and men in the Army face. Those words are appreciated, however, as is General Sir Nick Carter’s campaign against rape, with a display of hard-hitting posters that are imaginative, and with messages that are bold, and ensure that all service personnel understand the concept of consent. However, the evidence shows that over the years there has been little improvement, perhaps because the current position in both recording the evidence and the determination of rape and sexual assault is clearly flawed. That situation would be improved by the implementation of both these amendments.

The response to a freedom of information request two years ago showed that in the previous three years military personnel had made more than 200 allegations of rape and other sexual offences against their colleagues. Seventy-five allegations of rape and 150 of sexual assault were made to the Military Police between 2011 and 2013. There were 25 rape allegations in 2013, 24 in 2012 and 26 in 2011—consistent figures throughout. Five servicemen were convicted of rape and 22 of sexual assault. But even getting such information may not be possible in the future if the Government abolish the FoI process, which they seem to be seeking to do.

The 2015 Ministry of Defence report on sexual harassment gives much more detail. It says that women had received unwanted comments about their appearance, body or sexual activities, unwelcome sexual gestures, had been subject to attempts to touch them, and that 10% of the women interviewed had received a request for a sexual relationship. But how accurate are those figures? There are clearly questions about the comprehensiveness and reliability of the data collected, as my noble friend Lord Touhig said. For instance, allegations of sexual assault can be investigated by a commanding officer, the relevant service police force or a local police force. Home Office authorities are not required to record whether an alleged victim or perpetrator of a sexual assault is a serving member of the Armed Forces. This means that the Armed Forces do not possess even basic evidence about the extent of sexual assault or rape within the services. Civilian police forces have to collect and collate such evidence in a consistent and orderly way, so why does this not apply to the military? Without a central register published annually, it is impossible to follow trends and patterns and determine whether improvements are being made. I fail to understand why this proposal might be rejected, not least as the Minister in the Commons said that the system needs to be more robust, as has been said. It would be interesting to know what actions have been taken since that statement was made to set the process going to achieve the aim of making it more robust.

On Amendment 6, a commanding officer has broad discretion to decide whether to investigate allegations of sexual assault or whether to refer them to the relevant police force. The commanding officer has to refer cases in line with the offences listed in the Sexual Offences Act 2003 but, strangely, that legislation explicitly excludes for referral sexual assault, voyeurism and sexual activity in a public lavatory. This means that, if notified of an allegation of sexual assault, a commanding officer is not necessarily required to refer the matter to the police.

Sexual assault covers a wide breadth of sexual acts, some of which may seem less serious to the commanding officer but not necessarily so to the victim, and which, if ignored, may develop into a more serious situation. Commanding officers in the Armed Forces are men and women of skill, professionalism and integrity but that does not mean that they have the same levels of specialist investigatory skills as those who have the necessary professional expertise. It is important that those who investigate, prosecute and manage these processes are professionally trained and have the skills to deal with complex cases and, very often, emotional situations.

Relevant to both the data and the process is the number of victims who do not come forward because they do not wish to be investigated by their commanding officer. Evidence shows that they are discouraged from making a formal written complaint, or that they are told they will be treated better in return for a sexual relationship. One in 10 women who had upsetting experiences indicated that they did not report it because they particularly did not want to report it to their specific commanding officers, having been told by others that it would have an effect on their careers or they could be subjected to negative treatment. That is not a very good background against which to encourage women to take these cases forward.

Finally, I refer to a case that gives an example of the hidden culture in the Armed Forces and illustrates so clearly to me why Amendment 6 is necessary. I have concentrated so far on sexual assaults against women, but Ministry of Defence data following another FoI request reveal that male rape is common in the UK Army. In 2013, three rapes and 22 sexual assaults were carried out against men in the UK military forces. Since then, there have been a further 25 assaults, but these figures relate only to information gathered by the Military Police, meaning that the real numbers could be much higher. The ministry could not say whether anyone had been prosecuted for the assaults disclosed in the latest data.

All this evidence proves what has been known for a very long time: that there is a deep-seated culture, as described by General Sir Carter. Surely it is time that the Government legislate to show that they are genuinely concerned to improve what is a truly dreadful situation. Perhaps the Minister can give an explanation for why the Government have been so reluctant to do so in the past. I hope he will not take the same view today.

[Lord West of Spithead]

My Lords, I strongly support Amendment 5. In the late 1980s, I was dragged from my destroyer by the First Sea Lord and tasked with doing a study into whether women should serve on the front line at sea. Being an ambitious officer, I went to see the First Sea Lord and asked him what result he wanted from that study—but he told me that I was to do a proper study. I spent six months doing it, and I learned a great deal. At the end of it, I concluded that women could serve in all jobs at sea, that there was no reason why they could not do that on the front line and that it was in the interests of the Navy. I thought that that would ruin my career—my wife said that I could run a well woman clinic if things went really wrong —but in fact it did not affect my career that badly.

What I failed to understand was the level of sexual predation that might result from this. I did talk with other navies around the world but I have say that I did not talk to the Army; it was all naval. I have been really quite shocked by the level of sexual predation which one is aware of now. It is necessary to expose what is happening to make it clear to people that things have to change. It is only by laying down the cases that have happened that this will be thrown into the public eye and the eye of the military, and then action can be taken. I am not so convinced by Amendment 6, but Amendment 5 makes a lot of sense.

[Earl Attlee]

My Lords, I am grateful to the noble Lord, Lord Touhig, for moving this amendment, which concerns a very serious and important issue. He mentioned Deepcut. I urge all Members of the Committee to get the Blake report on Deepcut, which was commissioned by the last Government, as we may have forgotten the background.

I am not convinced by the new clause proposed in Amendment 5, and I hope that the Minister shares that position. However, I would like to ask the Minister about service police records. We are all aware that there will be serial offenders who are posted from unit to unit. I would even dare to suggest that if a commanding officer knows that someone is “a bit dodgy” for one reason or another, they might rather get rid of them, and so send them off to another unit. Then, that same serviceperson becomes a problem in another unit. If the service police were carefully recording complaints against a serviceman—unit 1 gets a complaint; unit 2 gets a complaint—while it may be only slightly inappropriate conduct, there would be a record so that if something serious happens, and the serviceman already has a record of minor offences, you can be pretty sure that there is a problem. If someone has been serving for 15 years and there is not the slightest suggestion of a problem, you might take a slightly different view. My issue is this: are the service police recording every single complaint against a serviceman? I can assure the Committee that I have seen this in the reserves where we had a problem with a junior officer and it turned out that he had had a problem in another unit as well.

Members of the Committee have suggested that the Armed Forces have a problem. I do not deny that there is a problem, but my question for the Minister is this. Is it a bigger problem in the Armed Forces than it is in the civilian world, such as in industry, for instance?

[Lord West of Spithead]

I am sorry, but surely that has nothing to do with it. We have to get it right within the Armed Forces, have we not? It is only by exposing it that this can be dealt with. When I did my study, I was shocked at the level of this sort of thing going on in banks. I visited banks and large retail outlets and I was absolutely appalled and shocked by it. I must have been naive being stuck at sea. You might think that sailors are not naive, but my goodness me, it was quite a shock. Surely we have to look at what is right within the military.

[Earl Attlee]

Once again I absolutely agree with the noble Lord that we have to address our problems and deal with them vigorously. I want just to suggest that we ought to be able to compare how the Armed Forces do with the rest of industry. Although we have a problem that we want to and should deal with, the statistics may not actually be as bad as we think they are. We need to compare. That is not a reason for not doing anything about the problem; far from it.

Amendment 6 seeks to take the matter out of the hands of the commanding officer. I agree with this proposal, although I am at variance with the noble Lord, Lord West, on it. These matters are extremely difficult to determine in terms of what has been going on. As he suggested, commanding officers are not well equipped to deal with them. You might think that someone is a really good person, but then you are disappointed to find out that they are possibly offending in this way, so I do not have a problem with this proposal. I inherited a case of sexual assault and it was exceptionally difficult for me to deal with. I did not have to determine the matter, but I had to manage the aftermath. I heard the two sides of the argument and I was ill equipped to determine it. The Minister should consider Amendment 6 very carefully.

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[Lord Craig of Radley]

My Lords, it was a privilege to put my name to the amendment of the noble and learned Lord, Lord Mackay. I have looked upon it very much as a probing amendment to give the Government an opportunity to indicate how their thinking is going. We have a problem with the Human Rights Act and Armed Forces legislation. Indeed, when the Human Rights Act was debated here in 1998 I drew attention to the potential problems that might arise. My concerns were dismissed then by the noble and learned Lord, the Lord Chancellor. I quote what he said then:

“I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces”.—[Official Report, 5/2/98; col. 768.]

Whatever flexibilities the noble and learned Lord had in mind, they have I fear proved to be valueless and ephemeral. Cases against the MoD and individual service personnel affecting our forces on operations overseas have proliferated. Some were settled out of court. Others made the prolonged and tortuous passage up through the courts, with the MoD appealing a couple to the Supreme Court in 2013. The Committee has had a good exposition of what happened in the Supreme Court. It was a thorough and nuanced finding but there was a 4/3 split and they did not really resolve the issue.

Later that year, in a debate led very admirably by the noble Lord, Lord Faulks, I suggested that the Armed Forces Bill before the Committee today would be a suitable vehicle for legislating to ease the problems faced by the MoD and the Armed Forces on operational activity overseas. So, as I made quite clear at Second Reading, I was dismayed to find that no attempt has been made to tackle the problem in this Bill. The Government have had the better part of three years since the Supreme Court judgment to consider what form legislation should take. I have pointed out in debates on this issue that it was not going to go away —it had legs—and that it would be a failure of political leadership not to tackle it.

In recent weeks, the much-heralded Bill of Rights has been mentioned as shortly to be published. Indeed the noble Lord, Lord Faulks, indicated as much in his response to the second Oral Question this afternoon. I thought that the noble Lord also confirmed that it will incorporate legislation to help to resolve the problems created for the Armed Forces by the incompatible legislation that affects them. If so, I very much hope that whatever detailed form the legislation takes, it will introduce further amendment to this Armed Forces Bill when it is enacted. It would be preferable to contain any new legislation within the principal Armed Forces Act, rather than once again having two separate pieces of legislation about the behavioural discipline of the Armed Forces. Indeed, in the debates on the then Human Rights Bill in 1998, I suggested that while the Armed Forces were of course a public body, it was acceptable that they were, and indeed should be, treated separately in legislation. I suggested that any aspects of human rights that were to apply to the Armed Forces should be incorporated into that Armed Forces legislation. If this approach had been adopted then, we might not be facing the present difficulties.

The comments of the noble Lord, Lord Faulks, on the second Oral Question this afternoon seemed to imply that the clauses affecting the Armed Forces were already drafted. If so, surely the Bill before the Committee this afternoon could be an appropriate vehicle for getting this legislation enacted, particularly if the Bill of Rights is to be delayed, and may, as a whole, have some considerable difficulty in reaching the statute book. Has this been considered? If so, can we expect government amendments to this Bill on Report?

[Lord West of Spithead]

My Lords, I thank the noble and learned Lord, Lord Mackay of Clashfern, for laying out so clearly exactly where this stands, although I have to say that the result does not leave things particularly clear for a number of reasons which he has explained. I will not reiterate what I said in my speech at Second Reading, where I went into the detail of this complex issue, but suffice it to say that the decision by the Supreme Court in the case of Smith and others v Ministry of Defence has, without doubt, raised the spectre of military personnel who take a decision in the heat of action being taken to court to face a claim under the Human Rights Act. As I say, it has raised that spectre. That is clearly wrong and I do not believe that it is what was intended. Indeed, mention has been made of how the case is not against those involved, but the result is that the spectre has arisen. I feel very strongly about this. I have been in action and have taken decisions that resulted in men dying. I believe that I took the right decisions, but it would be wrong for one then to have to go through the courts to explain all of that.

Of course these issues are highly complex, and that is part of the problem. The cases that were being considered looked at a number of different scenarios concerning things like the definition of combat operations, peacekeeping operations within Iraq, the issue of procurement, issues around the tanks and Snatch Land Rovers operating in a different context and being hit by IEDs. The sheer complexity has caused part of the problem. It has been said that some of these matters need to be investigated by the civil courts. That has dragged in the possibility of people fully in action being taken to the courts later for decisions they took, which I do not believe should be looked at in civilian courts. They should be covered by combat immunity.

I shall reiterate what I said before. It is a nonsense that one can use human rights legislation to drag military leaders through the courts for decisions made in war because, in combat, men and women kill and are killed on a regular basis fighting for their country. One has to wonder what exactly the right to life is when you are fighting. You have to make people stand up and do things where you know they are likely to be killed. I have done that. What is the right to life in those circumstances? It is very difficult, and I do not believe that the judgment was making that point, but that could be the result of what has been done.

As has been said, this is a probing amendment. I love it because it is nice and simple. Being a simple sailor, I love a simple amendment, but the complexity is far too great and I know that the noble and learned Lord, Lord Mackay, appreciates that. He has tabled it to probe the Government and find out. We need to know how the Government are going to take this forward. How will we clarify and resolve this position, because it really does need to be resolved? There is certainly concern in the military about this, and it spreads far and wide. There is also, I have to say, concern at times about fighting to win if you feel that some sort of legislative action is going to be taken against you. It would be a dreadful thing if our Armed Forces were to feel constrained.

What I would say to the noble Earl is this: we need an answer as to how this is going to be taken forward. Will it be done in the context of this Bill, as was mentioned by the noble and gallant Lord, Lord Craig of Radley, or will we do it in other legislation that is going through? How can we take it forward, because I do not believe that it can be left as it is? There is too much uncertainty. I know that it was not what the judgment aimed to do, but the uncertainty is there, and that is wrong. We have to clarify this.

[Lord Hope of Craighead]

My Lords—

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[Lord West of Spithead]

My fear is that this judgment has opened up the spectre of things to be investigated by the civil courts. That is why this comes into train, although I know that they were aiming at high-level procurement.

I have to say as an aside that to start with in a war you always have to fight with the equipment you have got. Almost inevitably, certainly in the two wars that I have been in, the equipment that we had at the time was not what I would have used in that situation, but we had to get on with it. I bloody well—sorry, I knew that the equipment was not up to that task. I knew, for example, that I had put my ship in a position where my anti-aircraft capability would not work, but I was destroying an airfield and supporting Special Forces operations so I had to be there. Still, I knew jolly well that if there were heavy air attacks I would suffer; indeed there were, and I was sunk. I am concerned that something could happen in a court where someone says, “Why did West do that when he knew jolly well that the equipment was not up to it?”, and that is wrong. That is the point that I am making: there could be an unintended consequence. That is what I am nervous about.

[Lord Hope of Craighead]

My Lords—

[Lord Tunnicliffe]

I wonder if the noble and learned Lord, Lord Hope, would let me speak before him because I intend to quote him at some length and he can correct any mistakes I make. I make it clear that the Opposition would not support this amendment as set out. I am not talking about little technicalities about wording; I am talking about an erosion of the Human Rights Act. We believe that that is a proper and admirable piece of legislation and that its retention is important. No doubt this will be the basis of a major battle between the parties in the weeks to come when the legislation is published.

I turn to the specific area of the judgment. Before Second Reading, I had not heard of Smith and others v Ministry of Defence. I googled it, thinking, “This will give me the information”, only to discover that the judgment was 72 pages and 188 paragraphs long. At the very moment when I had a sense of doom, I noticed that it had been given by the noble and learned Lord, Lord Hope, whose office is some 50 metres from mine, so I tried to save myself some effort by going to see him, and I thank him for the briefing he gave me.

I looked through the 72 pages to get a wider flavour of the judgment. I will concentrate solely on the Challenger 2 event. The Snatch Land Rover issue is complicated by the fact that it was not formally a combat situation but a peacekeeping one, so while it is important to the debate, it is capable of being part a much wider debate. In my view, however, the tone of the judgment on the Challenger 2 event is straightforward. The noble and learned Lord, Lord Mackay, has already quoted paragraph 76 of the judgment, but if the Committee will forgive me I shall quote a few more paragraphs. Paragraph 82 states:

“The Challenger claims proceed on the basis that there is no common law liability for negligence in respect of acts or omissions on the part of those who are actually engaged in armed combat”.

That is a pretty flat statement. It continues:

“So it has not been suggested that Lt Pinkstone or anyone else in the Black Watch battle group was negligent. Nor, as his decision to fire was taken during combat, would it have been appropriate to do so. The Challenger claimants concentrate instead on an alleged failure to ensure that the claimants’ tank and the tanks of the battle group that fired on it were properly equipped with technology and equipment that would have prevented the incident, and an alleged failure to ensure that soldiers were provided with adequate recognition training before they were deployed and also in theatre. Their case is founded entirely on failings in training and procurement”.

Its final sentence says that:

“The Ellis claim at common law also raises issues about procurement”.

If we delve further into the document, we get what is in a sense the substance of the ruling. Paragraph 95 says that:

“The same point can be made about the time when the failures are alleged to have taken place in the Challenger claimants’ case. At the stage when men are being trained, whether pre-deployment or in theatre, or decisions are being made about the fitting of equipment to tanks or other fighting vehicles, there is time to think things through, to plan and to exercise judgment. These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of these activities and to their circumstances. For this reason I would hold that the Challenger claims are not within the scope of the doctrine”—

that is, combat immunity—

“that they should not be struck out on this ground and that the MOD should not be permitted, in the case of these claims, to maintain this argument”.

Its argument was to rule that it should be struck out through the doctrine of combat immunity.

The tone of the whole judgment is summed up in paragraph 100 where the noble and learned Lord, Lord Hope, says:

“The sad fact is that, while members of the armed forces on active service can be given some measure of protection against death and injury, the nature of the job they do means that this can never be complete. They deserve our respect because they are willing to face these risks in the national interest, and the law will always attach importance to the protection of life and physical safety. But it is of paramount importance that the work that the armed services do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things … go wrong. The court must be especially careful, in their case, to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable”.

In other words, over and over again in the findings as I read them—as an amateur and not as a general, although I was made acting pilot officer, and having never been a lawyer, although I was a great employer of lawyers—the noble and learned Lord seems to go out of his way to express that this is not about combat. It is about when it is reasonable and practical to do so that the MoD has a duty of care.

I come back to my question. Where is the harm in sustaining the Human Rights Act as it has been used in this case, and what are the implications? The implications are that it says that simply because the process eventually leads to combat, the Ministry of Defence cannot use the doctrine of combat immunity to avoid its duty of care. Where it is reasonable to exercise its duty of care, it has a duty to do that.

Also in my career, I worked for the Ministry of Defence as a non-executive director of defence and equipment support. As such, I was asked to look into the safety of equipment in the MoD, and I have to say that it was variable. In some areas it did not meet the highest civil standard. I do not mean silly standards; I mean the general duty that you have in civil law to reduce risk to as low as is reasonably practicable. Civil law does not say that you cannot do dangerous things and no one is suggesting that the military should not, but where you have an opportunity to reduce risk, you have a duty to take it. That cannot be an unreasonable duty. My reading of the judgment is that that is where the duty remains: where it is practicable it should be exercised, but where it is impractical, specifically in combat, then a court should not regard it.

The area of harm that does exist is what in other circumstances people would call the chill factor. The Health and Safety at Work Act has been around for so long now that most industries that are subject to it, whatever you read in the press, are mature enough to live with it. However, there are still things like the presumption of guilt—the chill factor that will stop executives from doing their job. In fact people get over it and get used to it, but if it is influencing in combat the decisions that soldiers, sailors and airmen are making, then that is wrong. That is a challenge for the MoD, not a challenge to change the law but in its training, in its teaching of the doctrine and in ensuring that the people who are making decisions fully understand that this ruling does not relate to combat and that they should continue to make their combat decisions as they have been taught to, within the rules of what I loosely call the Geneva convention, and get on with the job.

We will not support this amendment. If it comes up on Report we will oppose it, or in trying to dilute the Human Rights Act, we will oppose it.

[Lord West of Spithead]

Just before my noble friend sits down, I would like to get clarification. Is he saying that combat immunity trumps the Human Rights Act? In a European Court judgment on human rights, combat immunity will trump it—is that what is being said? That does not appear to be the case, which is one of the worries that I have with what is going on. The French and another nation, for example, have both taken their military out of that and said that they are not liable to the Human Rights Act in action. However, my noble friend seems to be saying that combat immunity trumps the Act, so this is not a problem that we should be discussing. Is that correct?

[Lord Tunnicliffe]

One of the reasons why I spoke when I did was so that there could be a summing-up of the law by the noble and learned Lord, Lord Hope. My understanding of the judgment is that there is no question that the Human Rights Act applies to military personnel when they are serving overseas. It was a unanimous decision of the court and all seven judges agreed that it was true. What they then asked was, “What does the Human Rights Act require?”. People really should read the Human Rights Act. It is about three or four pages long and is a brilliant document. It refers to the European Convention on Human Rights, which is also well worth every person in our legislature having a read of. The Act is an extremely balanced document, virtually every provision of which expects you to behave reasonably.

What the court said, and I précis, is that the duty in the Human Rights Act to have care for those you are responsible for—the right to life—has to be interpreted reasonably, and the doctrine of the common law right of combat immunity holds good in a combat situation. Where there is proper opportunity to consider actions that may reduce risk then you have a duty of care to consider those actions, but not in combat and in the heat of battle.

[Lord West of Spithead]

My noble friend’s exposition explains exactly my concerns about what is going on because it is not at all clear. That is why we need this in order to have the issue clarified. What my noble friend has said has actually left me totally confused as a military commander, so we need to have this clarified. That is why I believe that this is important.

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[Lord Hope of Craighead]

My Lords, I wonder whether I could say a word. First, I apologise for the fact that due to other business I was not able to hear the speech and analysis of the noble and learned Lord, Lord Mackay of Clashfern, although he did show me in advance the paper from which much of his speech was drawn. I also expressed my regret to the Minister, the noble Earl, Lord Howe, that I have other business to attend to and might not be able to be here all the time.

I should like to say a few words because I feel a heavy weight of responsibility on my shoulders; I had the responsibility of writing the judgment. It covered an enormous amount of ground. I was not responsible for all the paragraphs because other people wrote as well. The starting point of the analysis was what to make of developments in the European court in Strasbourg, which has been expanding the jurisdiction in a way that I do not think judges in this country entirely welcome. It has always been understood that the European convention applies to our embassies abroad; that is accepted and has never been in doubt.

Gradually the thinking has developed so that, for example, when in Iraq the military set up a detention centre, bringing local people in to be detained and examined there, they had the protection of the human rights convention—the right not to be tortured, the right to life and so on—because we had control over what happens within the detention centres that we set up. What is different about the law which we were trying to analyse and explain is the extension of that jurisdiction, as I think the noble and learned Lord, Lord Mackay, explained, to members of the Armed Forces serving outside the territory—not just outside the territory of the signatories to the European convention itself but outside the territory over which they have control. We are now contemplating Article 2 applying to areas where the Army are not in control of events but nevertheless have some duty, apparently, or have the protection under Article 2. That applies both ways. The amendment by the noble and learned Lord, Lord Mackay, could in fact be read as applying to the need to be protected under Article 2 as well as the right to immunity from challenge under it for things done to other people.

What I was attempting to do, having secured the agreement of all my colleagues on my analysis, was that we had to recognise that Article 2 applied outside the territory, so we had to explain what that meant. It was not an easy task. One of the problems in trying to get across to people like the noble Lord, Lord West, and others was that we were not dealing with a case that put in front of us the kind of situation that he was faced with. They did not bring a case against the commander in the tank or anyone who was actually on the ground that they were in some way subject to criticism under Article 2 or subject to a claim for negligence at common law. I rather wish they had, because we would certainly have struck it out. We would have made it absolutely plain that people in that position, the heat of battle, are not to be exposed to criticism or to litigation because of things done in those circumstances. Decisions have to be taken for all sorts of reasons and it is quite impossible for a court to analyse them as to whether they were properly taken.

All I could do in my judgment—the noble Lord, Lord Tunnicliffe, has been very generous to me by setting out the various paragraphs in which I tried to do it—was to make it as plain as I could that there is an area that the courts will not go into. I did not secure the agreement of my colleagues on what to do about the cases in front of us. There was a four to three majority in favour of allowing the Challenger cases to go to trial to find out more about the facts before a decision was taken, and there was a five to two majority about the Snatch Land Rover cases that they should go to trial as well. There can be different views about this. The advantage of more facts was in fairness to the families that what was actually going on was absolutely clear before a final decision was taken. However, I made it as clear as I could that those who were taking the cases to trial should not think they were going to succeed. They had to get over the hurdles, which I explained in the various parts of my judgments. What the result of these cases will be, I simply do not know.

I cannot add to my judgment; that is not a position that a judge can ever enjoy. My judgment has to speak for itself. All I can say is that I would not change any of the words that I see when I read it over and over again. It is a difficult problem because one has to balance the need for the military to conduct operations without impediment, whether in wartime or peacetime, with, at the same time, the interests of the servicemen and their families. The noble Lords, Lord Thomas of Gresford and Lord Tunnicliffe, both illustrated the other side of the balance. I am not suggesting that legislation should not be resorted to, if the Government think that they can improve on what I attempted to say in Smith. Lord Bingham of Cornhill, one of the greatest judges that we have had in recent times, used to say that the law is made not by scoring boundaries by sixes but that you develop the law in singles. In a way, Smith was an attempt to face up to a problem and explain under modern circumstances what could be made of it. I do not claim that we achieved perfection by any means. I am deeply sorry that it has caused such alarm among senior members of the military for reasons that I certainly did not intend. I cannot do anything about that, except to apologise to them and hope they understand what I was trying to say.

The task that the Minister faces is the very difficult one of trying to analyse exactly how to express in legislation the need for protection of the individuals serving in our interest and, at the same time, giving freedom to those who have to take the decisions not to be impeded in a way that would defeat our national interest.

There is only one other point I wish to make, which I think the noble and learned Lord, Lord Mackay, hinted at in his speech. Any legislation will have to stand up to scrutiny under the European convention itself. It has to be compatible with the convention rights. However, I think that the noble and learned Lord was pointing out the direction in which the Government could go by saying that there is a margin of appreciation, which gives quite a latitude to the Government in deciding how to frame legislation. In a way, I was trying to explain in paragraph 76 that and how the margin of appreciation might lie. Not everyone agreed with me, and perhaps the Minister can improve on what I was trying to say.

Before I sit down, I repeat my apology to the senior officers in the military who think that that are being in some way targeted by what I said. That was certainly not my intention and I did the very best I could to make it clear that they were not to be open to that kind of criticism.

[Lord West of Spithead]

I certainly do not have the view that that was the aim of the judgment by the noble and learned Lord. However, because he was not able to make a judgment on a case of someone involved in action, this spectre has appeared. It is unfortunate that a judgment was not able to be made. Therefore, there is the spectre of something being done. I generally do not like legislation, but there is merit in trying to achieve something in legislation. I have read the whole judgment and had a nice chat with the noble and learned Lord at lunchtime about the issue—that is one of the great joys of being in this lovely building. I quite understand it, but that is my worry.

[Lord Hope of Craighead]

I am very grateful to the noble Lord. One cannot invent cases. The trouble with the courts is that you simply have to take what you are given. That is the real problem, which I think the noble Lord correctly identified.

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[Lord Mackay of Clashfern]

My Lords, it was never my intention to press this amendment. It was simply intended to raise these issues, which are extremely complicated. For example, in the case of Smith, Lord Mance pointed out that it is alleged that the major under whose command the firing tank was operating was told of the situation, and that there was a question in relation to the Snatch claims about whether the commander on the ground had chosen the particular vehicle that was involved in the incident. Although there is no question of anyone who was serving being involved in the claim against him, there is difficulty in finding out whether or not there has been a breach—for example, in relation to procurement or supply. You have to investigate the facts on the ground and the decisions of the commanders.

Perhaps I may take the example that the noble Lord, Lord West, gave of his own situation in the Falklands. My understanding is that, if there were a claim in relation to that by someone who had been severely injured and if the application of these principles that are being adumbrated came into play, the question of whether, for example, the anti-aircraft provision on the ship was adequate might have depended on where it was thought the ship would have gone. As I understand it, the difficulty was that when the ship got very closely inshore, the anti-aircraft provision was not adequate. If the ministry were being sued for failure to provide better anti-aircraft equipment—I am thinking of this as a possible scenario—there might be a question as to whether, in the circumstances of the engagement, the commander of the ship was required to go to a place where the anti-aircraft guns would not work properly or whether he could have operated effectively somewhere else. I do not imagine for a minute—

[Lord West of Spithead]

Perhaps I may interject for a moment. I could not possibly have gone anywhere else. I just want to make that clear.

[Lord Mackay of Clashfern]

That is the question.