CONSERVATIVE
New Forest East

THE SERVICE DISCIPLINE ACTS (FRONT BENCH) – 25 June 2003

Dr Julian Lewis: I begin by echoing the Under-Secretary's words: it is a great privilege and pleasure to serve under your chairmanship, Miss Begg. Notwithstanding that part of the debate which we have already had, I do not anticipate this being the most controversial matter with which you will have to deal in the course of what I hope will be a long and successful career as a Committee Chairman. I also welcome the Under-Secretary to what must be his first Front-Bench outing on a Statutory Instrument in his new role as a Defence Minister. It is also my first outing on a Statutory Instrument on the subject, and I will seek to do the issue justice.

I warmly endorse what the Minister said about the work of our troops in the Iraqi campaign and about the sincere sorrow that is felt in every part of the House at the terrible events of the past 24 hours. Her Majesty's Opposition remain absolutely determined to continue to give the Government and their armed forces total support. We realise the need to respond to such an atrocity not with weakness and withdrawal but by redoubling our efforts to ensure that the sacrifices made in the initial campaign and in the current peacekeeping and rebuilding work are not in vain but lead eventually to the emergence of a democratic heartland in the Middle East. Such efforts would do much to unpick the consequences of the many terrible events that have take place over such a long period in that benighted area.

Like the Under-Secretary I am not a lawyer, although I am a sometime historian. I hope therefore that I may be permitted a brief look back at some of the events that have taken place on 25 June in recent history, because they are instructive. On 25 June 1950, North Korea was invading South Korea. On 25 June 1970, the United States was unveiling a new plan for lasting peace in the Middle East. On 25 June 1985, 13 terrorists were arrested in London as a plot to plant bombs in a series of London hotels was thwarted. It all sounds terribly familiar and extreme.

The strangeness of professional service life is that it has to prepare regulars and reservists during peacetime for extreme wartime environments. The fact that our servicemen can successfully carry out their functions and duties in such extreme circumstances is in no small part due to the codes, ethos, training and discipline that they receive in the armed services before going into battle. It is in that context that the Service Discipline Acts are so important.

It is absolutely correct – not only for the ancient historical reason that we in this country do not want to have a standing Army – that we should have an opportunity every year to check how well the application of those Acts strikes a balance in that paradoxical situation. They must strike a balance between service ethos and individual rights, service discipline in battle and individual initiative, and the authority of command and the diktats of conscience or creed. The situation is, of course, not absolutely rigid; it is evolving, and I wish to briefly dwell on that evolution.

First, and most notably – and we have seen this in the Minister's opening remarks – the situation is evolving with the impact of human rights legislation. Secondly, it is evolving with the development of joint expeditionary operations. Thirdly, it is evolving because the main adversary that the United Kingdom forces face has changed from the Godless rationality of Marxists to the uncompromising mania of fundamentalists.

Some aspects of the legislation are uncontentious. It is common ground that the move from three Service Discipline Acts to one Tri-Service Act will be beneficial. However, I was a little disconcerted to hear the Minister say that the policy development stage had been taking ''a little longer than anticipated''. I say that because the policy development stage team that is attempting to bring together the separate Acts began work in September 2001. I know that that was a particularly pregnant month, but as recently as June 2002, when the draft orders were being considered, the team was reported to be halfway through that process. It was also stated at that time that the team aimed to complete the development stage by spring 2003. Will the Minister confirm whether we are on course for that? I am not aware of any announcement that that stage had been completed. I would like him to be more precise about what slippage that he anticipates during conclusion of the policy development stage.

The Under-Secretary said that the Government still intended to introduce the Tri-Service Bill with the quinquennial Bill in the 2005–06 Session, and I hope that that happens. Is he satisfied with the work that the policy development committee has done thus far, and that the ethos of each service is being adequately catered for? I am sure that he will appreciate that we do not want the pendulum to swing too far in the direction of jointery, given that the different functions of the Army, the Royal Navy and the Royal Air Force mean that men and women in those services will continue to have significantly different roles, functions and working conditions.

Mr Swire: Will my hon. Friend acknowledge that those services differ not only from each other but from the special forces? Is it his understanding that the legislation would apply to the different circumstances enjoyed by the special forces?

Dr Lewis: In all my revision of the previous occasions on which the concept of the Tri-Service Act has been promoted, I have not come across a Minister referring to the special forces. It will be interesting to see whether the Minister departs from that practice in his reply and gives us some information. I thank my hon. Friend for drawing the Committee's attention to that peculiarly important aspect.

Lord Vivian, the Opposition spokesman for defence in the House of Lords, raised an important point about the development of a Tri-Service Act when he spoke about the orders in that House on 19 June 2002. He asked whether there would be ''advance consultation with Parliament'' while the relevant Bill was drawn up. We are talking about a highly complex task, and the timetable slippage that we have seen is evidence of the fact that it is not easy to bring together three highly complex Acts dealing with services that retain significant differences despite working closely together. Therefore, it would be helpful to draw on the experience of my hon. Friends the Members for Bridgwater and for East Devon so that they may have some input into the complicated process that must be carried out successfully if we are to make progress on the proposed Act.

When Lord Vivian was responding in the other place to the laying of these orders, he stated something that was very wise and that deserves to be quoted. He said:

"The new Act will be of such importance that we should try every way to retain the effectiveness of the military discipline system ensuring that commanding officers retain their full powers."

He also said:

"Changes were made to existing military law and although they achieved the object of retaining summary powers of jurisdiction and custody before trial, they also undermined the authority and effectiveness of a commanding officer as did a number of other changes." – [Official Report, House of Lords, 19 June 2002; Vol. 636, c. 836.]

It is very important that nothing we do further damages that authority.

Mr Swire: Does my hon. Friend agree that elucidating where Lord Vivian came from and on what basis he made his informed judgment would be beneficial to members of the Committee who are not aware of his curriculum vitae?

Dr Lewis: As my hon. Friend well knows, Lord Vivian was a brigadier in the Army. He has vast experience of the armed forces, as have so many Members of the upper House. Many have served in the highest positions in each of the armed forces. The contribution that they can make to the process cannot be overestimated.

I turn to some of the more contentious aspects, which were raised by my hon. Friend the Member for Aldershot (Gerald Howarth) when the orders were considered last year. He drew attention to what he described as the ''relentless obsession'' of the European Court of Human Rights with interfering with the armed forces; he expressed concern at the civilianisation of the ethos of the armed forces, which might throw out of kilter the difficult balances that the Service Discipline Acts are designed to strike; and he expressed concern about the International Criminal Court. I should like to touch on those three issues.

We have heard from the Minister about the difficulties that the Morris case has caused. He has more eloquently than I referred to the change that the incorporation of human rights legislation into United Kingdom law has wrought by wryly admitting that, even though the Law Lords have confirmed their belief that there is nothing wrong with the legislation that we have enacted, this is still not the end of the story. By saying that the passage of human rights legislation has in some way better prepared our courts to deal with the impact of the European Court of Human Rights, he put an element of spin on the presentation that is worthy of that great spin doctor who is attending another Committee this very afternoon – attracting, perhaps deservedly, a deal more media attention than our deliberations.

On the question of the civilianisation of the armed forces, I refer the Minister to a particular case. I do not expect him to comment on it in detail now, but I would like an undertaking that he will look into the matter and that he will write to me after carrying out investigations.

I refer to three newspaper reports on the case of two dissident soldiers, as they are described, who were sent back from the Gulf after expressing concerns about the legality of the war in Iraq. I shall quote first from The Times of Friday 30 May:

''The soldiers, whose names have not been made public, were said to have been inspired by the resignation from the Cabinet of Robin Cook, the former Foreign Secretary, to question whether the conflict was justified. Their solicitor, Gilbert Blades, suggested that the Government was reluctant to allow the legality of the Iraq war to be put on trial by punishing the men.''

Is there any truth in the charge that the Government were reluctant to have those men face disciplinary procedures because of the political fallout of the issues that would be raised at any such disciplinary hearing? I am sure that the Committee would agree that that would be a very serious development.

However, curiously, the report in The Times then states:

''The Ministry of Defence denied that any soldier had been sent back from the Gulf after expressing concerns about the justification for war.''

There is therefore a contradiction between the account given by the lawyer for the two men – who, one would have thought, would have known the basis for their being sent back – and that of the Ministry of Defence, which issued a categorical denial. I would like that point cleared up. Were the men sent back for such a reason?

Mr Caplin: I wonder whether the hon. Gentleman believes all that he reads in all the newspapers.

Dr Lewis: If I believed everything that I read in the newspapers, I would not feel it necessary to lay the case before the Minister in order to establish the truth. It is precisely because I have such confidence in his integrity that I can rely on his giving a truthful response following an objective investigation.

The newspaper report continues:

"The two men, a private and an engineer from 16 Air Assault Brigade in Colchester, are said to have talked to colleagues about fears that the invasion of Iraq was illegal. After being sent back to Britain they retained Mr Blades, a member of the National Institute of Military Justice, in case they were court-martialled and interviewed by the police. The pair faced imprisonment if they were convicted of treason or of refusing to obey an order.

"Mr Blades said" –

I will not pursue this too much further –

" 'The Robin Cook resignation was the sort of focal point that really sparked it up and fanned it up. They were getting bombarded with propaganda that this was an illegal war or it would be an illegal war if it went without United Nations support. They were doubtful whether it was a legal war. They were very reluctant to get involved in something that might involve innocent civilians.' "

I must say – in response to the Minister's intervention – that it would be very unlikely for a solicitor who is retained professionally by two individuals to give such a direct quotation to the media without the express permission of the people whom he represented.

Mr Swire: I do not wish to detain the Committee, but my hon. Friend raises some pertinent points. Is not the case that he cites a perfect example of the attempted civilianisation of the ethos of the armed forces? Surely the question is not whether all signed-up members of the armed forces are allowed to make such individual judgments in a time of war, but the additional pressure and danger in which they put their colleagues whom they have deserted. The removal of two people from such tight units might well endanger those left behind who are obeying military law. Surely that is the kernel of the argument.

Dr Lewis: My hon. Friend is right; that is the kernel of the argument. However, I appreciate that modifications to a regime of strict military discipline will inevitably appear to be necessary over time, and that there will be a recognition that military discipline can sometimes lead to injustice. Governments of both persuasions have done their best to strike the correct balance. By considering this order every year, and the legislation on which the order is based in greater depth every five years, we are – I hope, usefully – assessing whether the balance is right. My hon. Friend is right; we are in danger of getting out of kilter. The case that I cited illustrates that.

Let me give one more quotation from the report, because it brings us back to the contradiction between what the MOD and the solicitor for the men said. The report states:

"An MOD spokesman denied that any troops were removed from the Gulf after expressing concerns about the legality of the war and of having to attack civilians. Mr Blades" –

the solicitor –

"suggested that the MOD was playing with words. Other reasons, such as compassionate grounds, may have been specified for the pair's return to Britain, he said."

When the Minister eventually writes to me on the subject, that explanation alone will not do. It will not be adequate to say that the men were sent back because of some vague catch-all condition, such as compassion for their concern about the legality of the campaign, if they were sent back because they expressed that concern.

Finally, I have a follow-on point, and the Minister will no doubt be pleased to hear that it is the last anecdotal point that I shall put to him. Mr Moshin Khan, an RAF reservist from Suffolk, went absent without leave. He is bringing a test case against the MOD after he was disciplined for refusing, on religious grounds, to take part in the Iraq war. A report in The Sunday Times on 25 May stated:

"Khan, 24, is to appeal on the grounds that his faith forbids him from fighting other Muslims. His lawyers will argue that the European convention on human rights gives everyone the right to freedom of religious belief – including military personnel."

Unlike in the other case, it seems that the MOD has in no way fallen down on the job, and it has disciplined the young man. It would surely be outrageous for religious belief to be a basis on which people could go absent without leave as opposed to one on which they could raise a conscientious objection, as Mr Khan should have done. If he had done so, he would almost certainly have been granted exemption on the grounds of a conscientious objection based on his religious relief, such is the strength of humanity and democracy in our system.

The case of the two men who appear to have been sent back because of their political objections to the war, and the failure to take action against them, in large measure vindicate the concerns expressed by my hon. Friend the Member for Aldershot, who predicted similar situations when the orders were under consideration last year.

The third factor that my hon. Friend brought up related to the International Criminal Court. From the outset, I have probably supported the concept of the ICC more consistently than anyone in my party. There should be a standing court to deal with the worst atrocities and crimes against humanity. However, I am becoming increasingly concerned that such procedures could be abused – as certain Belgian legislation has been abused – to bring vexatious, even frivolous, cases against democratic political leaders, such as our own Prime Minister and the President of the United States, for engaging in conventional military campaigns. It is necessary to put down a marker to make it clear that the ICC itself will be on trial for the first few years of its existence as we seek to determine whether it fulfils its proper aim of preventing or punishing atrocities or becomes a vehicle to criminalise the unavoidable brutality of even the most just war.

It is instructive to note that only yesterday it was reported that Belgian law is to be amended, not because of the abuses that have been occurring, but – apparently – because the Americans have threatened not to build the new NATO headquarters in Brussels unless it is amended. The Belgians were quoted as saying that the way in which the law had been applied had made ''a laughing stock'' of their legislative system. The way in which the problem is being resolved has not done a great deal to improve that system's reputation.

I said that in its first few years, the International Criminal Court will be on trial to establish whether it will be a serious and valuable addition to the international scene, or whether it will become a figure of fun – vexatious fun at that – such as the Belgian courts, although it is unfortunate that, through a derogation, we did not at least protect our armed forces as we could have done from the application of the ICC's power for the first seven years. Is the Minister still absolutely confident that it would not have been better to have let the court bed down first, rather than to risk our forces – carrying out their legitimate, difficult and dangerous duties – being brought before an international court if it were considered that the UK courts had not done enough to resolve matters satisfactorily?

I am well aware that it would be pretty well unprecedented to threaten to do anything other than support the continuation of the Service Discipline Acts. Last June, when the order was considered in the other place, Lord Chalfont tabled an amendment because he did not wish the orders to be approved until justice had been done to the memory of the two pilots of Chinook ZD576. Many feel, in light of the RAF's regulations at the time, that the pilots were saddled unfairly with the blame for the crash on the Mull of Kintyre. Will the Minister give us an update on that continuing debate?

On questions of ethos and spirit in the armed forces, it is important that servicemen know that they will not posthumously carry the blame for something for which, if there were any doubt about the circumstances, they should not be blamed. If one thing is certain, it is that there was some doubt about the circumstances of the Mull of Kintyre crash. Significantly, the rules have been changed since the matter came to the fore, so that people can never be blamed posthumously as those young officers were. We have some unfinished business that the Minister would do well to address.

I turn to the Armed Forces (Review of Search and Seizure) Order. Although I acknowledge the concern raised by my hon. Friend the Member for East Devon about the substantive measures in the Armed Forces Act 2001, I recognise that the order relates only to section 8 of that Act: the review by the judicial officer of the actions of the commanding officer when he has acted directly precisely because he has been in an environment where it is not possible to follow the most desirable procedures. In a nutshell, where a commanding officer cannot find a policeman to carry out a raid or an appropriate officer to issue a warrant, he has to act on his own initiative. The trouble is that, under the procedures before us, he will be second-guessed – that is what the order is about.

I do not intend to make heavy weather of the issue, but I shall refer to a couple of the provisions. Sections 7(1)(b) and 5(1)(b) of the 2001 Act give a flavour of why we have misgivings about how the order will work in practice. Section 7 is entitled:

"Power of commanding officer to authorise entry and search of certain premises"

and an abbreviated version of subsection (1) would read:

"If an officer has reasonable grounds for believing ... that it is likely that, if no search could be carried out before the earliest time by which it would be practicable ... for a service policeman to obtain and execute a warrant under section 5 authorising the entry and search of the premises ... the purpose of the search would be frustrated or seriously prejudiced, the officer may authorise a service policeman or ... any other member of Her Majesty's forces to enter and search the premises."

So, if the reviewing officer looks back on the event under section 8 and disagrees with the commanding officer about the availability of a policeman or the reasonableness of the grounds for his belief about the practicability of obtaining a warrant, the commanding officer's decision may be declared null and void. What does the Minister think would happen in such an eventuality? Let us suppose – I ask for the Minister's attention at this point –

Mr Caplin: I am listening.

Dr Lewis: Let us suppose that a commanding officer authorises a raid because he reasonably believes that there may be stolen material from Her Majesty's stores, illegally held weapons or drugs. He mounts a raid, and the forbidden material is found. However, the reviewing officer may then decide that, for one reason or another, the commanding officer has exceeded his powers, because it was not as reasonable as he thought to mount the raid without a warrant. Would that mean that the case against the people who had the illegal materials would collapse? I think that it would and that the order is a rather serious development in terms of the morale of law-abiding members of the armed forces. They may believe that a commanding officer no longer has the right to detect forbidden materials and to take appropriate action on his own initiative, because a reviewing officer may feel that the more should have been done to obtain a warrant or to find a policeman. The whole case may then collapse. If that is the implication of the legislation, there is cause for concern.

I appreciate that we are not reviewing the Act that laid down many of these provisions. However, we are examining the conditions under which a judicial officer can review the commanding officer's actions, and many matters relating to reasonableness are spelt out in the legislation. It is therefore legitimate for us to consider the point.

Mr Swire: We seem to be driving towards circumstances in which the commanding officer has the relevant people at his disposal to instigate or back up a search, which suggests that the armed forces will be in a base-type situation – either in a barracks or on a ship. What are the operational implications of the legislation? I suggest that they are significant, because a commanding officer might be obliged to make a quick decision without any back-up. Bearing in mind that the law is based on case law, what is the precedent? If successive commanding officers are undermined retrospectively, what incentive do they have to carry out their duties?

Dr Lewis: That last point touches on an issue that I raised earlier – the failure to discipline the two men who were sent home. They have apparently been told that they can carry on soldiering, with no blemish on their records. The problem is that the incorporation of bodies of rules and laws in the way that is proposed will lead to a policy of inaction and of turning a blind eye. I mean that not in the Nelsonian sense, but in the sense that steps that are necessary to maintain good order and discipline may not be taken.

I promised to make one more reference to a section of the Act. Not wishing to break that promise, and by way of illustrating my general point, I refer to section 5. The order alludes to it, which is why I have picked it out. It is entitled:

"Power of judicial officer to authorise entry and search of certain premises".

To give a flavour of it, I shall refer to subsection (1):

"If, on application made by a service policeman, a judicial officer is satisfied that there are reasonable grounds for believing ... there is on relevant residential premises specified in the application material which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence,"

the officer

"may issue a warrant".

The provision therefore seems to require a reasonable belief that one might find material that is likely to be relevant. If that is not a lawyer's paradise, I do not know what is. My hon. Friend the Member for East Devon shakes his head again in dismay, if not disgust. If such things do not illustrate the essential problem – that the balance between the necessities of the military ethos and the rights of individuals, which I outlined in my opening remarks, has been tipping too far in the wrong direction – I do not know what does. That is surely the purpose of the annual reaffirmation of such orders and the opportunity to introduce more fundamental legislation every five years.

I hope that the Minister will address my more general points. I also hope that he will write to me about the specific case that I mentioned and that the letter will be cleared by appropriate professional civil servants, rather than by political advisors, or what used to be called information officers. I look forward to his response. I thank hon. Members for their indulgence in listening to what I have had to say.

[For further developments, click here.]