NAVAL DISCIPLINE ACT (FRONT BENCH) – 29 April 2004

Naval Discipline Act 1957 (Remedial) Order 2004 and Army, Air Force and Naval Discipline Acts (Continuation) Order 2004

Dr Julian Lewis: It is a pleasure to echo what the Minister has said about working under your chairmanship, Mr Hurst. I had the pleasure of debating the Service Discipline Acts with the Minister on 25 June last year and I should like to begin by thanking him for taking on so directly many of the specific points that I raised on that occasion. That has the advantage of preventing me from having to raise them all over again this time. In this spirit of co-operation, I am also happy to indicate that it is not my intention to divide the Committee on either of the Orders. However, I hope that, in a stampede for the exit, hon. Members will give thought to the fact that if they leave precipitately, we might be deprived of the benefit of the wise points that they would otherwise have injected into the debate.

Last year, in considering the Service Discipline Acts, to which I should like to turn first today, I spoke of the difficulties of balancing traditional Service ethos with individual human rights, discipline in battle with individual initiative, and authority of command with individual conscience. Only yesterday, press reports suggested that problems in one of Her Majesty's nuclear-powered submarines had led to a clash of the sort that would require a balanced consideration such as I have just described; but today's reports are somewhat more reassuring.

However, on the wider front, I echo what the Minister said about the situation of our Armed Forces in Iraq, because their ethos is being tested not in the heat of battle but under the pressure of snipers, saboteurs and suicide bombers. When he responds, will he say how the morale of our forces is bearing up – and particularly whether a significant number of disciplinary offences are having to be dealt with in that theatre?

The Minister has somewhat pre-empted me with his detailed comments on the tri-Service legislation. I have just a couple of points left unanswered from the list that I would otherwise have presented to him. First, I note that on 21 January 2004, Lord Bach spoke in the other place about the timing of that proposed legislation:

''As soon as we can possibly find parliamentary time for it, from 2005-06 onwards ... we intend that there should be a tri-service Act that sorts out this matter once and for all.'' – [Official Report, House of Lords, 21 January 2004; Vol. 656, c. 1021.]

He was talking about the inconsistencies between the court martial arrangements of the Royal Navy and those of the other two Services. However, I sensed a hint of a get-out clause, and that there might be further delay. As we have been promised that the Bill will be ready for consideration by 2005-06 – I accept what the Minister said about the pressure of parliamentary business – I ask him for a categorical assurance that, whatever delays the business queue may cause, the Bill will be ready to be presented to Parliament, so that we can deal with it as soon as we can.

The slippage in the work that was reported last year appears to have been made good. However, I press the Minister a little further on one aspect to which he alluded – that of pre-legislative scrutiny. He said that he wished to draw on the expertise of Members of this House in order to have maximum input; but it is important to bear in mind that Members of the Upper House have an especial contribution to make. The Upper House is well-equipped with former Chiefs of the Defence Staff. Indeed, it was the late Lord Vivian, a defence spokesman for my party who raised in 2002 the question of pre-legislative scrutiny for a tri-Service Act once it was ready to be considered.

I am sure that the Minister will join me in paying tribute to Lord Vivian, who died a few weeks ago. He was profoundly well-equipped to have undertaken that sort of work, which sadly will now have to be undertaken by others.

Ivor Caplin: I concur with what the hon. Gentleman said about Lord Vivian. Indeed, I spoke in those terms in a debate on reserve forces in Westminster Hall that took place a short while after his sad death.

Dr Lewis: I am sure that Lord Vivian's family was grateful for the Minister's consideration.

Last year, I spent some time dealing with reports on the case of two soldiers who had allegedly been sent home from the Gulf for expressing doubts about the legality of the second Gulf war. The Minister may recall that they were represented by a solicitor named Mr Gilbert Blades. I was somewhat amused to read, in the Plymouth Evening Herald of April Fool's Day this year, that the felicitously named Mr Blades had succeeded in having swords banned from all future naval courts martial. Apparently, he wrote to the Secretary of State that weapons in naval courts were a breach of human rights and could intimidate defendants. I anticipate having a word with the Serjeant at Arms about intimidation in the Chamber right now.

2.50 pm

Sitting suspended for a Division in the House.

3.18 pm

On resuming –

Dr Julian Lewis: I never dreamed that I should be able to report back to the Committee so quickly on my proposed soundings of the Serjeant at Arms Department. However, thanks to that timely Division interrupting our proceedings, I have obtained the unanimous opinion from the Department, from a sample of one, that no hon. Member seems to be intimidated by the fact that the Serjeant at Arms wears a sword – except perhaps on those occasions when Mr Speaker sends him into the Division Lobbies to move along those who tarry too long. It has been pointed out to me, although perhaps I should not mention it in public, that the Mace in the Chamber has a certain military connotation which, if more hon. Members were aware of it, might leave them feeling more intimidated than they do in the course of a normal day's business.

I shall move on from that slightly light-hearted aspect of Mr Blades's activities to the more serious element – the fact that he was the lawyer who brought the Grieves case to the European Court of Human Rights and on 16 December obtained the judgment that naval judge advocates and judicial officers were insufficiently independent, because they had hitherto been appointed by a serving naval officer – the Chief Naval Judge Advocate. Of course, the Opposition find the proposal to transfer that role to the Judge Advocate of Her Majesty's Fleet unexceptionable – and unavoidable, in the light of the court's ruling.

The similarity of the titles puts one in mind of the famous sketch about the Judean People's Liberation Front, as opposed to the People's Liberation Front of Judea. However, the substantive difference is that the Judge Advocate of Her Majesty's Fleet is a civilian, unlike the Chief Naval Judge Advocate. Of course, there has been no suggestion that the officers who tried Mr Grieves were in any way deficient in their handling of the case. As the Minister for Defence Procurement pointed out in a written statement in another place:

''the court did not award the applicant any damages, but awarded him 8,000 euros for costs and expenses, less the amount received in legal aid.'' – [Official Report, House of Lords, 6 January 2004; Vol. 656, c. 6.]

At least we can be comforted that Mr Blades received his fee.

One cannot but share the frustration that Lord Boyce expressed in the upper House, when he said:

''I find that conclusion by the European Court of Human Rights somewhat hard to follow, especially given the evidence of there being no suspicion whatsoever of any bias in the review of courts martial in the Navy over the past 10 years.''

He described the ruling as a

''bitter blow to naval lawyers, whose dedication to the administration of justice in the Royal Navy is highly regarded, not just in the Navy, but by the highest courts in the land''. – [Official Report, House of Lords, 21 January 2004; Vol. 656, c. 1020.]

I hope that the Minister will take this opportunity to pay tribute to the work done over many years by serving officers in that capacity, in numerous courts martial.

Last year we were still considering the chaotic implications of the Morris case, but they have now been overturned. This year, the Grieves case has opened up a different can of worms, by calling into question the verdicts of naval courts martial and summary appeal court findings since the Human Rights Act 1998 came into force. Although I am drawing my remarks to a conclusion, I am afraid that I must flag up a problem for the future that the Minister has not yet addressed.

Mr George Foulkes: Briefly.

Dr Lewis: I refer again to that sterling chronicle of naval activity, the Plymouth Evening Herald, which on 8 April reported the following case:

''The Royal Navy is 'urgently' considering the implications of a recent court martial appeal involving the Human Rights Act.''

The case involved

''seaman Richard Dundon, who last July was found guilty by court martial of punching a superior officer at the Two Trees public house in Plymouth on August 21, 2002.The appeal court reversed the conviction because of a ruling last December by the European Court of Human Rights in the case of former Plymouth sailor Mark Grieves.''

We now have a problem, in that the Court of Appeal has set a legal precedent that could affect all naval court martial convictions made since the 1998 Act came into force. The article in the Evening Herald quotes what it describes as a

''top Plymouth legal source closely involved with the Dundon case'',

as saying:

''In principle this means every case since 1998 is fundamentally unsafe.''

I should like to hear what the Minister has to say on whether we can expect a lot of retrospective problems as a result of the ruling in the Grieves case.

The Minister has already addressed the concern expressed by the Joint Committee on Human Rights about why we did not act sooner to resolve the problem, and I am satisfied with the comments that he made.

There is no reason to doubt the future safety and fairness of courts martial, either in the interim period or in the period after the new tri-Service legislation eventually comes to fruition. I should like to conclude by paying tribute to members of the Armed Forces, who have to serve in conditions of extreme danger. They include not only members of the regular forces, but reservists – I know that your son, Mr Hurst, Members of Parliament and relatives of Members of Parliament have all undertaken dangerous work in Iraq. It is important for them to know that they will be treated fairly and effectively in matters of discipline. I look forward to the Minister's response.

[Mr Colin Breed: Will the Minister clarify a few points? First, I want to ask him about the incident on HMS Trafalgar in Devonport, which neighbours my constituency. Many of my constituents work there and in the Navy. Following the newspaper reports, I did some investigation of my own. I discussed the matter with the MOD yesterday and was given to understand that no disciplinary action would be taken against any of the sailors who were involved in that incident. Will the Minister confirm that?

We have just heard about cases that, for obvious reasons, frequently appear in Plymouth's Evening Herald. The press and I have been somewhat confused in recent years about the current regulations or guidelines on which courts martial proceedings should be made public. There does not seem to be a hard and fast rule. The suspicion is that those that are not afforded the opportunity of a public airing are concealed for some reason. I am sure that that is not the case, but it would be interesting to know the current guidelines and regulations about the publication of hearings and decisions in such proceedings. That would clear up a matter with which the press and I have been grappling for a while.

The Parliamentary Under-Secretary of State for Defence (Mr Ivor Caplin): I am grateful for this opportunity to reply, and I am mindful of the comments of my right hon. Friend the Member for Carrick, Cumnock and Doon Valley (Mr Foulkes) a few minutes ago, when he urged me to be brief – well, he certainly urged someone to be brief, and I will comply.

There is no doubt that naval lawyers have performed a superb function over the years – and that will continue. The legislation is about a change that we need to make to the court martial system, and does not in any way undermine the current or future role of naval lawyers in the discipline system.

Plymouth's Evening Herald is popular today. I must tell the Committee that I have appeared in that paper now and again when I have been there, and for other reasons. Looking around me, I see one or two hon. Members whose local papers I have appeared in for various reasons.

The hon. Member for South-East Cornwall (Mr Breed) asked about HMS Trafalgar. I am sure that hon. Members agree that it is ridiculous to suggest that the Royal Navy would send a submarine to sea if it were not seaworthy; I take that as read. Any allegations need to be properly investigated – and they will be. The commanding officer's decision to put certain members of the ship ashore struck me as being the right thing to do in terms of the single-Service ethos and discipline, because it is commanding officers who make such decisions; we simply give them the framework in which to do so. I cannot comment on individual disciplinary cases. They all need to be considered – and that is happening.

The hon. Member for New Forest, East (Dr Lewis) asked about the morale of forces in Iraq. I was there in the first week of March, and I found the morale of regular and reserve forces to be very high. I accept that circumstances change as time moves on, but it seemed to me that Multinational Division (South-East) was undertaking a lot of work, including reconstruction, and working with the civil authorities and other Departments – and, most important, working with the other nations that form the coalition. The operational centre at the HQ was a hive of activity. I was there at the time of the Kabala bombing in the north, and the activity in the operations centre was a tribute to the coalition. In discussions with our commanding officer, General Andrew Stewart, no mention was made of a lack of discipline. In fact, the opposite was the case; our troops showed the ultimate professionalism that we would expect in such circumstances.

I am grateful for the supportive comments made by the hon. Member for New Forest, East about pre-legislative scrutiny, and I shall return to that point, although we discussed it last year. However, the centrepiece of his contribution was the use of swords. It is only right that I should respond in true style – but not by offering him a duel – that might be a little out of date. Lord Bach announced that the use of swords and cutlasses would be discontinued in courts martial from March 2004. That brought naval procedures more closely into line with those of the Army and the Royal Air Force. Again, that is in preparation for the tri-Service Bill.

The only thing that I can say about the announcement made by Lord Bach is that the decision and the announcement were both taken before Mr Blades' recent letter, which was referred to in the Plymouth Evening Herald. I am reminded of an age-old mantra – one cannot believe all that one reads in the newspapers. I may have said that last year as well.

The hon. Member for New Forest, East asked whether we would need to reopen cases. There were 164 convictions by naval courts martial between October 2000, when the Human Rights Act came into force, and 16 December 2003, the date of the ECHR judgment. In that judgment, the court said that it was unlikely to grant leave to appeal out of time on article 6 grounds. In our estimation, only 15 more recent cases are subject to review in the light of the court's finding and the Dundon case, to which hon. Members have referred. Those cases are now being reviewed, and we are looking carefully at the implications of the Dundon case, with the benefit of legal advice. Any questions raised as a result of that review will be addressed in the appropriate way, and I shall inform the House.

Dr Lewis: Before the Minister concludes, can he give me the assurance for which I asked with regard to the tri-Service Bill being presented to the House? I hope when it is ready that there will be no slippage on the Session in which it is nominated to be considered, although obviously he cannot answer for the progress of business once it is submitted to the House.

Mr Caplin: I am sorry; I missed that point. I shall be candid. It is our intention to have the Bill ready for the 2005-06 Parliamentary Session. I clearly have to prepare a bid to get the Bill into that Session. It is a major Bill, and much will depend on the work that we can do during the intervening period, but I am confident that the Bill will be ready for that Session.

I thank you, Mr Hurst, for your chairmanship. I thank hon. Members for their attendance today, including my hon. Friends. I hope that the Committee will approve these two uncontentious but important orders.]