Orders of the Day — Armed Forces Discipline Bill [Lords]

House of Commons, 6 April 2000.

RELEASE FROM CUSTODY AFTER CHARGE OR DURING PROCEEDINGS

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 13, in page 24, line 23, leave out from "imprisonment" to "or" in line 24.

Betty Boothroyd (Speaker, West Bromwich West)

With this it will be convenient to discuss the following amendments: No. 14, in page 24, line 48, leave out from "imprisonment" to "or" in line 1 on page 25. No. 15, in page 25, line 26, leave out from "imprisonment" to end of line.

Crispin Blunt (Conservative, Reigate)

I am somewhat concerned by the remark made in business questions by my hon. Friend the Member for New Forest, West (Mr. Swayne) about the very Back Benches and wonder whether I am sitting in an unfortunate place. However, I hope that the distinction is not meaningful. I should first declare my interest as the Bill and these amendments in particular apply to me as a member of the Regular Army Reserve of officers. So far, the way in which the Bill has been considered has done no credit to the Government and their supporters. On Second Reading and throughout the Committee stage, only one substantive contribution was made by a Labour Back Bencher, and that was the Chairman of the Select Committee on Defence, which had conducted an inquiry into the Bill.

Graham Brady (Conservative, Altrincham and Sale West)

That is clearly a record that Labour Back Benchers wish to maintain—not a single one is present now.

Crispin Blunt (Conservative, Reigate)

My hon. Friend anticipates what I was about to say. Not one is here.

John Bercow (Conservative, Buckingham)

But she is the Minister's parliamentary private secretary.

Crispin Blunt (Conservative, Reigate)

I am, of course, delighted that the Minister is supported by her parliamentary private secretary.

Robert Key (Conservative, Salisbury)

A Liberal Democrat is present, and we are very glad to see him. I thank my hon. Friend for giving way, because he has given me an opportunity to apologise to the hon. Member for Hereford (Mr. Keetch), whose name I took in vain in Committee when I said that he was present very rarely. The hon. Gentleman had not told me or the Committee beforehand that, unfortunately, he would be in hospital. If he had told us, we would probably have been gentler with him.

Crispin Blunt (Conservative, Reigate)

I thank my hon. Friend for what he has said. So far, the Government have accepted none of the amendments that my hon. Friends and I tabled in Committee. Most of those amendments were designed to improve the Bill, and to reduce the substantial burden that it will impose on the armed forces. The problem with the Bill is that it is riddled with peacetime assumptions about—

Betty Boothroyd (Speaker, West Bromwich West)

Order. I remind the hon. Gentleman that the amendments stand in his name. He is now embarking on a Third Reading speech, whereas he should be dealing with his amendments in detail.

Crispin Blunt (Conservative, Reigate)

I am grateful for your guidance, Madam Speaker. I am about to deal with the amendments. The amendments are concerned with the Bill's effect on both peacetime operations and full operations in time of war. They attempt to improve the Bill, and to allow it to cover all the circumstances in which it will have to operate. I am thinking particularly of circumstances in which people are involved in wartime operations. In such extreme circumstances, the last thing the authorities want to do is detain people. I envisage circumstances in which people have been, in effect, remanded: they are not in custody, but they have a duty to turn up to face trial when required to do so by the authority concerned—in this instance, the judicial officer or the judge advocate. The problem with the generality of the Bill—on which my amendments focus—is that it makes a number of assumptions about how the military operates. It assumes that we permanently deploy our military in times of peace, or in operations short of war. As Brigadier Ritchie made clear in his evidence to the Select Committee, the last thing the authorities want to do is detain people in the extreme circumstances of wartime, because it consumes resources; but they will want to be pretty sure that those concerned will turn up to face trial. The simple purpose of my amendments is to ensure that, if people fail to turn up, the court martial system can impose appropriate sentences. 1.15 pm Under the Bill, the sentence is limited to a maximum of two years' imprisonment, which is for going absent without leave, but, in the most extreme circumstances, the accused may be told that he will not be detained because of lack of resources. If he then fails to turn up, it can be an offence equivalent to desertion; if it is an offence equivalent to desertion in the face of the enemy, it is clearly a most serious offence. The simple purpose of the amendments is to remove the two-year limit, so that, effectively, the court can produce a punishment that meets the seriousness of the situation. That would mean that the Bill would suit all circumstances during operations of the greatest seriousness and in time of peace. I tabled the amendments in Committee. I am grateful that you have selected them again, Madam Speaker, because in Committee the Minister seriously misunderstood their effect. He said: The purpose of the amendment, which would reduce the punishment that a court martial can impose on an accused for failure to appear at a hearing, is unclear. That is not the case—the punishment is increased as the amendments would remove the limit. When the Minister was considering whether to accept or reject the amendments in Committee, he clearly misunderstood their effect, or was misdirected by his officials. I hope that tabling them on Report will give him the opportunity to reconsider his position. There was a second serious misunderstanding by the Minister: he misunderstood the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. Where clause 5(2)(b) applies, the accused, if he is subject to military law only by virtue of section 131 or 205(1)(ea), (eb), (g) or (h) of this Act— the Army Act 1955— may be required to comply. The Minister clearly had been directed only to what was meant by section 131, not to what was meant by section 205. In his guidance to the Committee, he said: The clause will not apply to personnel who are still serving; it will apply only to those who have left service but who are subject to a charge from a previous period of service.—[Official Report, Standing Committee D, 2 March 2000; c. 100-01.] That is not the case. Section 205 of the Army Act and the equivalent sections in the other Acts make it clear that the measure applies to every officer of the Territorial Army who is a special member when in permanent service, when in full-time service or when undertaking any training or duties. Subsection (1)(eb)—which applies to me—applies to every officer of the Army Reserve when in permanent service, when in full-time service, when undertaking any training or duty or when serving on the permanent staff of the Army Reserve. Similar subsections apply to warrant officers, non-commissioned officers and men of the three services. I hope that the Minister has had a chance to reconsider the facts. On his advice as to how the law stood, I withdrew the amendments and did not press them in Committee. I am sure that that is why you have given me the opportunity to raise the matter again on Report, Madam Speaker. These simple amendments improve the Bill and enable it to operate in all circumstances, in both peace and war, which was what we were aiming for in Committee. I regret that, in arguing for other amendments in Committee, we failed to convince the Minister. There were rather more Labour Members supporting him in Committee than are present on Report. Nevertheless, I hope that the Minister has listened to my argument, and that he will be able to reconsider his position and break his duck in amending the Bill.

Robert Key (Conservative, Salisbury)

I am grateful to my hon. Friend the Member for Reigate (Mr. Blunt) for tabling this group of amendments, which gives the Minister an opportunity to clarify the position. In Committee, we were almost wholly constructive in our opposition. Although we had our moments—a frisson—now and then, those were an attempt to clarify an immensely complicated system of law. People do not really understand the complexity of the three services Acts, each of which has slightly different interpretations and presents slightly different challenges in being applied to the legal system. My hon. Friend has drawn attention to the difficulty of imposing any law on the battlefield—or in theatre in anticipation of battle, or, increasingly, in a peace-enforcing or peacekeeping role—and to the fact that we really have to be very precise about what we are asking our commanding officers and courts martial or other courts to do. I look forward to hearing the Minister's comments in clarifying the situation, which certainly was not clear in Committee.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

I am sure that the House would expect me to comment on two recent incidents in Northern Ireland before I reply to the debate. This morning, there was an explosion at Ebrington barracks, Londonderry. This further attack on the security forces is reprehensible. Fortunately, no one was injured. It is yet another crude and cynical attempt by a small number of people to disrupt the peace process by the use of violence. We cannot let them succeed. Investigations into the incident are continuing, and I am not at liberty to comment on it any further. I was also very sad to learn of the non-terrorist-related deaths of two soldiers and the injury of one other while carrying out operations on Lough Foyle. The circumstances of that tragic incident will be the subject of a thorough investigation. Meanwhile, our thoughts and deepest sympathy are with their family and friends.

Menzies Campbell (Liberal Democrat, North East Fife)

rose—

Robert Key (Conservative, Salisbury)

May I associate the Opposition with the Minister's remarks? The attack highlights the danger in which our soldiers—all Her Majesty's forces—are placed while we take for granted the peace in which we live. Many of us have visited our forces in Northern Ireland—indeed, in Londonderry—and I know the dangers that they face daily, even when we think it is peaceful. May I also associate the Opposition with the sympathy expressed by the Minister for the soldiers who have died or been injured on Lough Foyle and for their families? It is a tragic part of service life that they are prepared to pay the ultimate sacrifice.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

I shall give way to the right hon. and learned Member for North-East Fife (Mr. Campbell).

Menzies Campbell (Liberal Democrat, North East Fife)

I am grateful. May I associate myself with the expressions of sympathy that have just been made by the official Opposition spokesman? On the first incident, although I do not expect the Government to comment in detail on matters of security, would the House be entitled to assume that, in the event of an incident of the type that the Minister has described, there would thereafter be an immediate review of the necessary precautions to assure the safety of armed forces personnel serving in Northern Ireland?

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

Yes. I can assure the right hon. and learned Gentleman that that is the case.

Iain Duncan Smith (Conservative, Chingford and Woodford Green)

I had not intended to intervene, but as the Minister mentioned the first incident, and following the statement of my hon. Friend the Member for Salisbury (Mr. Key) on behalf of the Opposition—

Betty Boothroyd (Speaker, West Bromwich West)

Order. I am not prepared to have a debate on the matter, as we are in the middle of consideration of the Armed Forces Discipline Bill. Proper respect has been shown in relation to the Minister's statement by spokesmen on both sides of the House. I call Dr. Moonie to deal with the amendments.

Iain Duncan Smith (Conservative, Chingford and Woodford Green)

On a point of order, Madam Speaker. With respect, I was about to ask the Minister a question about the consequences of today's incident, and whether he would urge his colleagues in the Northern Ireland Office, at the earliest opportunity, to make it absolutely clear who were the perpetrators of the incident—the Provisional IRA or a splinter group. The answer has a huge bearing on the armed forces and on the way we may have to deal with the matter in Northern Ireland.

Betty Boothroyd (Speaker, West Bromwich West)

The hon. Gentleman's point will have been noted by Ministers. However, as I said, in the middle of our consideration, I am not prepared to take statements on the matter from both sides of the House. Due respect has been shown by hon. Members of the two main Opposition parties.

Geoffrey Clifton-Brown (Conservative, Cotswold)

On a point of order, Madam Speaker.

Betty Boothroyd (Speaker, West Bromwich West)

Does it relate to the same matter?

Geoffrey Clifton-Brown (Conservative, Cotswold)

Yes.

Betty Boothroyd (Speaker, West Bromwich West)

In that case there is no point of order.

Geoffrey Clifton-Brown (Conservative, Cotswold)

rose—

Betty Boothroyd (Speaker, West Bromwich West)

Order. Dr. Moonie will proceed. We are considering the amendments.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

Perhaps it would help the House if I explained in some detail the purpose of the clause. I am sorry to disappoint the hon. Member for Reigate (Mr. Blunt), but I do not think that I shall be able to accept his amendments. The offence created by new section 75J(3) of the Army Act 1955, which will be inserted by clause 5, applies only to persons who are not ordinarily subject to service law other than for the purposes of trying the offence with which they are charged. The first category caught by the new offence is those being tried under the service discipline Acts for an offence committed while they were subject to service law. A simple example of people in that category is ex-regular soldiers. Section 131 of the Army Act 1955 and of the Air Force Act 1955 and section 51 of the Naval Discipline Act 1957 provide that such former service personnel remain subject to service law, but only for the purpose of arrest, custody and trial, although they have ceased to be subject to it generally. The second category is described in the four paragraphs of section 205(1) of the Army Act 1955, which is sufficient illustration of the three Acts. The category includes every officer of the Territorial Army who is a special member when in permanent service, in full-time service or undertaking any training or duty, whether in pursuance of an obligation or not. I stress the word "special", because those officers constitute a specific category of Territorial Army officer and are to be distinguished from ordinary Territorial Army officers, who are subject to service law at all times and do not fall within the groups that we are discussing. I shall elaborate in a moment on the various definitions, such as permanent or full-time service if hon. Members wish—or perhaps I shall just do it anyway. The others covered by the offence are: every officer of the Army Reserve when in permanent service, in full-time service or undertaking any training or duty, whether in pursuance of an obligation or not, or when serving on the permanent staff of the Army Reserve; every warrant officer, non-commissioned officer and man of the Army Reserve when in permanent service, in full-time service or undertaking any training or duty, whether in pursuance of an obligation or not, or when serving on the permanent staff of the Army Reserve; and every warrant officer, non-commissioned officer and man of the Territorial Army when in permanent service, in full-time service, called out for home defence service or undertaking any training or duty, whether in pursuance of an obligation or not, or when serving on the permanent staff of the Territorial Army. Permanent service is when someone is called out under the provisions of the Reserve Forces Act 1980. Full-time service is when they enter a commitment to work full-time for the services. Undertaking any training or duty refers to the minimum number of days that they are obliged to undertake by virtue of their membership of a reserve force. They can volunteer for additional duties if they wish. Persons on the permanent staff are known as non-regular permanent staff. They are similar to reserves who have signed up for full-time service, but the terms and conditions differ slightly. The distinction between different types of volunteer reserve officer arises from the creation of a new category of reserve—those who enter employee agreements under part V of the Reserve Forces Act 1996. They are referred to as special members. The 1996 Act enables civilians to work in support jobs that would require their services in operations. Persons taking up those jobs agree as an employment term that the post includes a liability for call-out and training. They become a special member of the reserve force. Because the call-out liability is related to the job and the people concerned are not volunteer reservists in the ordinary sense, they are not subject to service law at all times as an ordinary reserve officer would be. We are satisfied that regular soldiers or serving commissioned officers who are released from custody pending trial can be given a lawful order by their commanding officer to attend a future hearing. A subsequent failure to attend could result in such service personnel being charged with a service offence. However, individuals who fall outside that specific but large category of personnel are not necessarily subject to the commanding officer's command and control at all times prior to the trial. Accordingly, in relation to these other individuals, it is necessary for the Bill to create an offence for non-attendance at a hearing after being released from pre-trial custody. In our view, without having specific provision for these two categories of personnel, the Bill will be defective in that such personnel could never be sanctioned for not attending any subsequent hearing. I think that that deals with the second point made by the hon. Member for Reigate about the categories of person that are involved.

Crispin Blunt (Conservative, Reigate)

Perhaps the Minister could illustrate the position by reference to me. I am on the regular Army Reserve of officers. If I am called out by Her Majesty's Government on permanent service, presumably section 205(1)(eb) would refer to me. I presume that if I were on permanent service, I would be called out only if something extremely serious had happened, such as war. Let us say that I was remanded for trial for an offence in action, which would probably be an extremely serious offence in those circumstances. If I failed to show subsequently—de facto, I had deserted—I would be caught by clause 5. Would I be caught as well under the Army Act? I do not know. If not, presumably I should be. If my offence was serious enough to be the equivalent of desertion, surely a tariff should be available to the court for my non—appearance at the subsequent hearing. That means the removal of the time limit, which is what my amendments would do.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

rose—

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I hope that that will not set the standard for the length of interventions this afternoon.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

I am not sure which section would apply to the hon. Gentleman. If he had listened carefully to what I said, he would understand his position in that context. I do not intend to repeat myself. It would depend on the circumstances in which the services were required. I had hoped that the hon. Gentleman would be satisfied with the detailed explanation that I gave in Committee of the need for the clause because of the persons to whom the penal provisions within it apply. I accept that that was a complicated explanation, as it was this afternoon. The distinctions between groups of persons subject to service law can be quite subtle. The clause is aimed at those cases where an individual has been released from custody prior to trial and then fails to attend trial. I recall that the hon. Gentleman was concerned in Committee that the maximum sentence of two years did not take into account the seriousness of absconding in extreme operational circumstances. However, he must remember that the penal provisions of the clause would not apply to service personnel. They are subject to the service discipline Acts at all times and could be charged with a far more serious offence if appropriate. The penal provisions will apply where they are no longer subject to the service discipline Acts, but are being dealt with for an offence that they are alleged to have committed while they were. The hon. Member for Gosport (Mr. Viggers) asserted in Committee that a person may well decide that a maximum penalty of only two years is not enough of a deterrent when faced with the possibility of being convicted for a very serious offence, and that he thus may abscond. We should remember that a sentence must be proportionate to the actual offence. One possible offence would be failing to attend court. The sentence must be approached separately from any sentence that is imposed for the offence that is the subject of the proceedings. If the accused is convicted of a serious offence, he will receive appropriate punishment for that offence. To allow courts to impose long terms of imprisonment when the accused might be acquitted of the original offence would be out of proportion. The sentence is not and should not be linked to the substantive offence, no matter how serious that may be. I might add that the more serious the original offence is, the less likely it is that bail would be granted in the first place. If a service man fails to attend, he is likely to be charged with being absent without leave, or with failure to attend a duty. Both offences carry a maximum penalty of two years. It should also be remembered that the Crown court cannot impose a sentence of more than 12 months for failure to attend trial, regardless of the gravity of the original offence. I have given the amendments careful consideration, even though I am not prepared to accept them. However, I think that the Bill gets the matter just about right. The penalty should reflect the offence as it stands. It is appropriate and reasonably in line with civil practice, and I see no reason to change it.

Menzies Campbell (Liberal Democrat, North East Fife)

First, I wish to apologise on behalf of my hon. Friend the Member for Hereford (Mr. Keetch), who took part in the Committee proceedings on this Bill but who cannot be here today because, long before the business was allocated, he had arranged to bring some 200 of his young constituents to visit the House of Commons. He is therefore occupied elsewhere during this debate. I hope also that the hon. Member for Reigate (Mr. Blunt), who introduced the amendment, will forgive me a moment of levity. When he said that he might be called out in an emergency, I leaned over to the hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) and said that, if that happened, gas masks and ration books would be issued at the same time. However, the Member for Reigate used himself as an interesting illustration of his interpretation of this part of the Bill. It is always a risk to let the lawyers in, but I believe that the deletions proposed in the amendment would cause clause 4(5) to read: A person guilty of an offence under this section shall be liable on conviction by court-martial to any less punishment provided by this Act. I hope that I am not guilty of misreading the proposal, but that would be a rather infelicitous use of language to try to achieve the amendment's apparent objective. The Minister's explanation of the possible punishment available under subsection (5) seems entirely reasonable. A penalty of up to two years' imprisonment for a failure to attend would be pretty high up the tariff scale, in anyone's view. One could argue that it was nearly draconian, given the powers available to the Crown court. I understand the amendment's objective, but it and the others in the group would leave infelicitous language in the Bill if they were accepted. In addition, an unlimited punishment would be available for a failure to attend, and that would be going too far. For that reason, if the amendment were pressed to a vote, I could not recommend that Liberal Democrat Members support it.

Crispin Blunt (Conservative, Reigate)

I do not believe that the amendment would have the effect that the right hon. and learned Gentleman suggests. If the amendment were accepted, clause 5(4) would read: A person guilty of an offence under this section shall be liable on conviction by court-martial to imprisonment or any less punishment provided by this Act. The Minister gave the game away when he said that people charged with a serious offence would not be granted bail. That goes to the heart of why this and other parts of the Bill are defective. They do not take into account all the extreme circumstances faced by the armed forces. The simple fact is that, in extreme circumstances, people will be released on bail or from custody. Let us take the example of a person suspected of murdering a colleague. If the case against him could not be established and the circumstances were very extreme—such as those experienced by a unit cut off behind enemy lines—it might not be possible to spare two guys to detain him and lock him up. If the person appeared to be willing to continue to fight for his unit, the decision might be made simply to allow him to do so. The Bill is supposed to cater for all circumstances, whether for current operations or those carried out in wartime. We do not want two sets of disciplinary procedures. The amendment would simply remove the tariff. I agree with the suggestion of the right hon. and learned Member for North-East Fife that the tariff implies that it is almost inconceivable that there will be such circumstances. It is almost inconceivable, but the Bill must cope with all the circumstances that the military might face. The Minister has said that he will not accept the amendment, even after the opportunity that he has had for reflection since the Bill was considered in Committee. I will not be pressing the amendment to a Division. However, the Ministry of Defence will be considering legislation on these matters in future, with the next quinquennial Bill and the opportunity to bring the service discipline Acts together.

Geoffrey Clifton-Brown (Conservative, Cotswold)

Has my hon. Fried considered circumstances in which a service man may be charged with a relatively minor offence while evidence is being gathered for a more serious offence with which to charge him? Given that he may abscond before the hearing, and assuming that almost enough evidence has been gathered for him to be charged with the serious offence, it might be appropriate to remand him in prison pending the more serious charge being brought against him.

Crispin Blunt (Conservative, Reigate)

I confess that I had not considered that possibility. However, it illustrates another reason for the Bill to be flexible enough to cope with every circumstance. This is a minor point. The situation is unlikely to arise because we will not, I hope, be at war in the next few years when such circumstances might occur. We will have plenty of opportunity to return to these issues, particularly if the Government make progress on bringing the discipline Acts together in a tri-service discipline Act. I beg to ask leave to withdraw the amendment.

JUDICIAL OFFICERS

Robert Key (Conservative, Salisbury)

I beg to move amendment No. 2, in page 29, line 24, at end insert— or— (c) they are a serving Officer in the Territorial Army or the Royal Auxiliary Air Force who also hold a current practising certificate, issued by the Bar Council, Law Society or Institute of Legal Executives, to practice as a Barrister, Solicitor or Fellow of the Institute of Legal Executives and who have at least two years post qualified experience'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss amendment No. 3, in page 29, line 37, at end insert— 'or— (c) they are a serving Officer in the Royal Naval Reserve who also hold a current practising certificate, issued by The Bar Council, Law Society or Institute of Legal Executives, to practice as a Barrister, Solicitor or Fellow of the Institute of Legal Executives and who have at least two years post qualified experience'.

Robert Key (Conservative, Salisbury)

The amendments would allow reservists and other members of the Territorial Army to hold the post of judicial officer, either while on exercise with their respective service or when serving as a full-time reservist. May I say how nice it is to welcome the hon. Members for Crawley (Laura Moffatt) and for Ilford, South (Mr. Gapes) who served on the Committee that considered the Bill? I look forward to listening to their contributions this afternoon. The Bill has many practical difficulties, and these we have made clear to the Government, right through the Committee stage. Unfortunately, the Government seem determined to drive the Bill through without listening to the Committee or the House. We will, as Her Majesty's Loyal Opposition, continue to try and improve what is clearly a flawed measure. The least that we can do for the armed forces is to try and make this wretched Bill work. The amendments would widen the pool of those qualified to serve as judicial officers. It is clear that there will be insufficient barristers within the armed forces to cope with the proposed changes. Not only will barristers have to continue to prosecute and defend cases, they will now have to exercise their role as judicial officers. The Territorial Army already has a legal corps. However, the naval reserve does not. Furthermore, the Army and the Air Force recruit civilian lawyers to join their legal corps, but the Royal Navy recruits unqualified personnel from the supply and secretariat branch, and trains them as barristers. The Army and the Air Force can easily step up recruitment, and have done so, but, as legal training is a lengthy process, the Navy is not in the same position. It is therefore conceivable that some convictions may fail because the Royal Navy cannot put the accused before a judicial officer in time. 1.45 pm The House will be unsurprised to be reminded that reserve forces provide essential back-up for the regular forces. The reserves contain some qualified lawyers, many of whom may practice criminal law, or even human rights law. They are likely to have a good knowledge of the special nature of service life, backed by expert legal knowledge, and they would make a fine addition to the legal services available to the armed forces.

James Gray (Conservative, North Wiltshire)

My hon. Friend must be aware of the Inns of Court and City Yeomanry, which is particularly well qualified in this regard.

Robert Key (Conservative, Salisbury)

My hon. Friend makes my point for me. The Government savaged the Territorial Army last year, cutting numbers by 18,000 men. The then Secretary of State, Lord Robertson, said that by doing so, he aimed to make the TA more usable and relevant—a memorable phrase. As the former Secretary of State was well known for his sense of humour, people may have thought that he was joking. He was not. The Government have shown themselves to be no friend of the reserves, but have had no hesitation on calling on reserve forces when they need them, as they did last year in Kosovo. Even after the huge cuts of 1999, the Government continue to salami-slice the budget of what is left of the Territorial Army. No one would deny that the reserves play a hugely important role. It would be an opportunity wasted if we denied appropriately qualified reservists the chance to play their part in the service disciplinary process. I ask the Minister to accept a sensible, logical amendment. I hope that the Minister will not say that the matter can be dealt with in next year's Armed Forces Bill. My golly, that will be a Christmas tree of a Bill, given all we have heard in Committee about what will be added to it. A great deal is missing from the Armed Forces Discipline Bill. I hope that the Minister will break the habit of a lifetime by conceding that our proposal is sensible and accepting it.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

I assure the hon. Gentleman that I listened to everything that he said with great care. There was little else to do in Committee, unfortunately. Listening is better than falling asleep, if marginally so. I have promised to consider matters in future, but I certainly have not promised to include them in the quinquennial review Bill. Considering matters for inclusion is quite different from actually including them, but I will of course give points serious consideration where I have said that I will do so. Amendments Nos. 2 and 3 would allow the judge advocate general or the chief naval judge advocate to appoint as judicial officers volunteer reserve officers who have specified practice certificates or qualifications with a minimum of two years post-qualification experience. I appreciate that the hon. Member for Salisbury (Mr. Key) intends to provide more flexibility in relation to those who may be appointed judicial officers, and that he is trying to be helpful. I fear, however, that it would be a flexibility too far. Two points are at issue: whether we want to use reserve officers as judicial officers, and the type of qualification and level of experience that we wish them to have. Clause 7 provides for the appointment as judicial officers of only qualified lawyers, including lawyers who are volunteer reserve officers. The amendments, however, would add legal executives to those eligible for appointment. For all their fine qualities and the breadth of their responsibilities in the civilian world, such individuals are not lawyers, and are not, in our view, qualified to serve in a judicial capacity. That assessment is based on the judgment that we made when we drafted the Bill, and is reflected in clause 7. By the same token we do not see a case for varying the qualification period for different categories of judicial officer. It would make nonsense of the legislation if we required lawyers to have at least five years' post-qualification experience before being appointed as judicial officers, but allowed lawyers and legal executives who are volunteer reserve officers to perform that function with considerably less experience. The issue of length of experience was debated at great length in Committee. I stated then and must do so again that we believe that five years' experience demonstrates a reasonable level of familiarity with the law, so is the minimum period that should apply. I have given the matter serious consideration. I am sorry, but in this case I cannot accept the amendment.

Jonathan Sayeed (Conservative, Mid Bedfordshire)

I am particularly concerned with the Royal Navy and the Royal Naval Reserve. Is the Minister aware that in the London division of the RNR a large proportion of serving officers are qualified and well practised solicitors and barristers? I understand his point about those with lesser qualifications, but does it not make sense to make use of the excellent naval and legal experience of those people in the RNR?

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

If such people are in the Royal Naval Reserve, we will use them. All we are specifying is that they must have five years' experience. For the points I have made that is not an unreasonable stipulation to make.

Menzies Campbell (Liberal Democrat, North East Fife)

Clearly, the role of the judicial officer is important, with considerable responsibilities to be discharged. Such responsibilities are best discharged by those who have some maturity and some direct experience of trial or court-martial procedure. For example, it is not possible to become a sheriff—a middle ranking judge—in Scotland with less than 10 years in practice, whether as an advocate—the Scottish equivalent to a barrister—or a solicitor. So it is right to set a minimum level of experience if people are to be invited to carry out extremely important responsibilities which bear on the rights and freedoms of individual citizens or, in this case, of individual members of the armed forces. Therefore, I have considerable sympathy with what the Minister said in relation to the five-year qualification period. When the Minister responded to the hon. Member for Reigate (Mr. Blunt), however, he said that there were two questions: whether we wanted to use reserve officers and of the experience of those who might fall into that category. He answered the second question, but I did not understand him to answer the first: whether the purposes of the Bill could be served by the use of reserve officers. He came back to it obliquely at the end of his remarks. Perhaps he could make it clearer whether he is satisfied that the existing arrangements without the amendment allow for the utilisation of the very people who were mentioned a moment ago in an intervention as reserve officers in all three services with the requisite legal experience to take part in proceedings of the kind that we are considering and to fulfil the responsibilities of judicial officer. To cut out that group of people would be to waste a valuable resource which could be of great assistance in achieving the objectives of the Bill.

James Gray (Conservative, North Wiltshire)

I agree entirely with the right hon. and learned Gentleman, particularly in regard to the Territorial Army. I wish to qualify his question to the Minister in one particular way. These people need not be officers. The Inns of Court and City Yeomanry and the Honourable Artillery Company have banisters of great qualifications who are of other ranks.

Menzies Campbell (Liberal Democrat, North East Fife)

The hon. Gentleman is right to pull me up on that matter. One of the curious features of the Territorial Army is that people serve in it as a private or corporal who outside occupy positions which, on the face of it, would be equivalent to rather higher ranks if their outside position were reflected in their rank in the TA. So although I am with the Minister on the question of experience, I am by no means convinced that he has dealt with the issue in so far as it relates to the availability of valuable resources in the shape of reserve officers qualified to fulfil the functions outlined in the Bill.

Crispin Blunt (Conservative, Reigate)

I have listened to the arguments, and have some concerns both about the amendment proposed by my hon. Friend the Member for Salisbury (Mr. Key) and about the proposition advanced by the right hon. and learned Member for North-East Fife (Mr. Campbell). Shortly, the Minister will correct the right hon. and learned Gentleman.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

indicated assent.

Crispin Blunt (Conservative, Reigate)

The Minister will say that, if members of the Territorial Army meet the qualification of having been members of the Bar for five years, they would be suitable as judicial officers. That would meet my concern about the point made by the right hon. and learned Member for North-East Fife. As I understand it, the amendment would mean that members of the TA and other reserve forces, who have some experience of service matters, would have to go over a lower hurdle in respect of the legal experience required to serve as judicial officers. My concern is that those TA officers would be undertaking, with less legal experience, a judicial duty that the Government believe to be necessary because of the Hood judgment at the European Court of Human Rights. That case led to these provisions in the Bill, because, under the European convention on human rights, commanding officers are not considered to be independent and thus not capable of taking decisions on custody and remand into custody. That is why the first part of the Bill was introduced. I am concerned that, instead of the simple five-year tariff for lawyers to exercise the function of judicial officer that applies to members of the regular Army and the other regular forces—which I believe to be unnecessary—members of the TA would be in the peculiar position of only needing to have held a judicial qualification for two years in order to sit in judgment on members of the regular Army. We need to avoid that situation. It could create legitimate resentment among members of the regular forces, because someone with a TA commission, possibly with limited reserve experience, might be put in judgment over members of the regular forces without the legal tariff of five years core experience that the Government have decided is necessary. As an ex-regular, I should be worried if a judicial officer, with only limited territorial or reserve experience and limited legal experience, sat in judgment over members of the regular Army, the Royal Navy and the Royal Air Force.

Jonathan Sayeed (Conservative, Mid Bedfordshire)

I understand the point my hon. Friend makes about two years and five years. However, is not it true that those in the reserve forces would be full-time lawyers? In the Navy, many of those who become legally qualified are only part-time lawyers. They come from the supply and secretariat branch and qualify as lawyers, but they do jobs other than legal ones in different postings. Although they may be time-qualified, their quantum of legal work is rather less.

Crispin Blunt (Conservative, Reigate)

My hon. Friend is right. However, we are considering a point about lawyers who will sit in judgment on members of the regular forces. In my view, it is right for commanding officers and the chain of command to take decisions on custody and on remand into custody. There was no problem about that until that one case was brought under the European convention of human rights. If the armed forces were not subject to the convention, because, 49 years ago, we had had the wisdom and foresight to negotiate a reservation for them, we should not be having to introduce provisions about decisions on custody being made by someone so obviously independent as a lawyer of five years' standing rather than allowing the CO and the chain of command to make the decision in the first place. We are in this position, and the Government have yet seriously to examine the routes that would get us out of it. As we are clearly caught by the Hood judgment, this clause is regrettably necessary. 2 pm My hon. Friend the Member for Mid-Bedfordshire (Mr. Sayeed) referred to officers in the Royal Navy; some are lawyers and some are not. If, in their capacity as lawyers, they detained sailors in custody on judicial hearings, they would be acting at least as serving regular officers of the Royal Navy. The problem with the amendment is that people with limited Territorial Army and legal experience could sit in judgment on issues of custody that used to be considered by commanding officers who were respected and who operated under a system that was respected. If that happened, it could cause resentment in the Army and the regular forces, so it should be avoided.

Robert Key (Conservative, Salisbury)

I suspect that had we been talking about medical matters, the term "skill fade" would have been heard in the debate. What my hon. Friend the Member for Reigate (Mr. Blunt) said was important and it justifies the amendments. We are talking about people who practice law and soldiering and we have to consider what happens if there is crossover between the two roles. I listened carefully to the Minister. In an almost throwaway line, he confirmed that the Government would use members of the Territorial Army if they were qualified in his terms. If I am wrong, perhaps he would like to clarify the matter.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

I will clarify the matter, even though I thought that I had made it perfectly clear, as I think the record will show. Volunteer reserve officers who meet the qualifications in paragraphs (a) of the new sections will be eligible for appointment any way without need for modification to the Bill.

Robert Key (Conservative, Salisbury)

That is exactly what I thought the Minister had said, and it gives us some satisfaction. We had hoped, however, that we could widen the pool of expertise by varying the qualifications necessary. We shall have to return to the issue. We are all aware that we are being invited to stumble down a path and, no doubt, the Bill will have to be repaired and patched up. It is remarkable that not a single Government amendment has been made in Committee or on Report, and only a handful were made in the other place.

Crispin Blunt (Conservative, Reigate)

A point has just occurred to me. The issue turns on the definition of independence in the European convention. Are the Territorial Army officers who are lawyers not as independent as those lawyers who are not Territorial Army officers? If regular Army officers who are lawyers assume the role of judicial officers, will they meet the test of independence? Has the Minister considered that point?

Robert Key (Conservative, Salisbury)

I cannot speak for the Minister. However, I suspect, in terms of compliance with the European convention, he would say that regular and Territorial Army officers are all part of the chain of command and that that is the issue. That is my understanding. I shall not detain the House any longer. We have been around the course on the amendments and I am sorry that the Minister has not conceded on them. It has been worth while probing on this issue, so I beg to ask leave to withdraw the amendment.

CUSTODY RULES

Robert Key (Conservative, Salisbury)

I beg to move amendment No. 4, in page 30, leave out lines 22 to 24 and insert— '(3) An order under this section shall not be made unless a draft of the instrument has been laid before, and approved by, a resolution of each House of Parliament'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss amendment No. 5, in page 31, leave out lines 6 to 8 and insert— '(3) An order under this section shall not be made unless a draft of the instrument has been laid before, and approved by, a resolution of each House of Parliament'.

Robert Key (Conservative, Salisbury)

The purpose of the amendments is clear: they would provide for closer parliamentary scrutiny of the Secretary of State's ability to make rules regulating proceedings preliminary to, and at, a custody hearing. The rules apply to the arrangements to set up videolinks. In this remarkable clause there is a long list of items for which the Secretary of State can make provision in making rules. That list includes items that we might expect: arrangements preliminary to the proceedings; the representation of the person to whom the proceedings relate; the admissibility of evidence; procuring the attendance of witnesses; the immunities and privileges of witnesses; the administration of oaths and so on. At the end of that list, subsection (3) says: Rules under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. We are being asked to agree to those statutory instruments being made under the negative procedure, whereas they should be subject to the affirmative procedure. We realised in Committee that the Minister has set up arrangements that are uncertain—and, frankly, if I were facing a court-martial or summary proceedings, I would want to be sure about the processes to which I was to be subject. In Committee, I challenged the Minister to demonstrate a videolink in action. That was a reasonable request, given that many of the Bill's provisions relate to the use of such links on active service. I asked for a demonstration of a videolink between the House of Commons and Pristina in Kosovo, because we had repeatedly been told that such links were in regular, indeed daily, use and that there was no problem with that. I made my request on a Tuesday and suggested that by the time we met on the Thursday, the Minister might have been able to set up a videolink to allay the Committee's fears. However, the Minister did not turn up with the goods, and his reason was that the equipment we used for the trial was hired and is no longer in our possession. When one thinks about that it is quite natural. I have to disagree; I do not think that it is at all natural. Ministers have been telling both Houses that the technology exists, that it is in frequent use and that it is widely available. On that occasion, the Minister rounded off his comments by saying: We will enter a proper system of purchasing once we have decided exactly what we want to use.—[Official Report, Standing Committee D, 9 March 2000; c. 187.] I remind the Minister that we have a deadline of 2 October, when the Bill will come into force if it is passed today. It would be very smart procurement indeed to get all the kit necessary by then. Far from being a tried and tested system, it seems clear that we are dealing with an untried and untested system. Even worse, the whole basis of our armed forces discipline system on operations will henceforth be dependent on those untested videolinks. It is also notable that the Minister's comments contrast rather drastically with those of the Minister for Defence Procurement in the other place. On 16 December, she said: The services are fully capable of exploiting successive advances in technology, which they already deploy with great success. Video technology is in day-to-day use. It was in constant use throughout the recent crisis in Kosovo. The armed services see no reason why that technology should not be deployed equally successfully in other operational environments and for purposes such as those envisaged in the Bill. Clause 8 includes the introduction of the use of live television links as a means of fulfilling the new custody rules, particularly when the logistical circumstances may be difficult. The clause was slightly amended by the Government in Committee in the other place to broaden the use of the technology to all custody hearings, and not only those being brought before a judicial officer. The amendments in the other place also clarified the fact that live television links and visual transmissions could be undertaken via other media, such as the internet. With regard to the practicalities of using video equipment, the Minister for Defence Procurement said in the other place: I hope to offer the Committee some reassurance on that point. I shall refer to the Army in particular, since it is likely to have the greatest number of personnel in remote locations. The Army would seek to use video link technology where operational or training circumstances mean that a face-to-face hearing is not possible within the required time-frame—[Official Report, House of Lords, 16 December 1999: Vol. 608, c. 351.] On Second Reading, the Minister confirmed that the MOD was currently trialling video equipment to ensure that the quality of the equipment is suitable for the purpose for which it will be used. The equipment currently used operates at 28 kilobytes. The equipment is capable of showing a wide-angle picture of an entire room or of zooming in on an accused in fine detail, just as it is used in court hearings, especially those involving children. Although we can use Inmarsat—the international maritime satellite—commercial links, there is no question that commercial television satellites would be used, because we have access to other means of communication.—[Official Report, 17 February 2000; Vol. 344, c. 1201.] The Defence Committee was also intrigued to be told about video conferencing. The director of personnel services for the Army explained to the Committee that video conferencing happened already. Apparently, there are daily video conferences with Pristina. It was unfortunate that we were not allowed to see that. The director had spoken to a judge advocate on a video conference facility as part of a trial. The judge advocate will have a portable system at home with him, and it will be possible to dial him up almost literally at any time. There will also be static video conferencing suites and portable systems that can be taken home, so a duty judicial officer will be available who can be wired up to pretty well anywhere in a world because, as the director said: IT-wise now, wherever our soldiers go, we have the IT system. In Standing Committee the Parliamentary Secretary, Lord Chancellor's Department was a little more bullish. She said: Generally speaking, video conferencing is up and running, but it needs to be trialled for the purposes of the Bill.—[Official Report, Standing Committee D, 7 March 2000; c. 171.] I found that surprising because on 1 February I received an answer to a parliamentary question to the Parliamentary Secretary. I asked her if she would list the companies that supply, provided and service secure videolink technology for use in British courts; and what arrangements are in place to prevent the interception of transmissions by third parties. The Minister replied: Videolink technology is used occasionally in the Crown Court to enable witnesses to give evidence from abroad. The installation is arranged locally by the party whose witness is giving evidence in this way. No information is held centrally on the suppliers used or the arrangements put in place to prevent interception. A pilot is currently in place to provide a videolink between Strangeways prison and the Crown Court in Manchester.—[Official Report, 1 February 2000; Vol. 343, c.545W.] So on 1 February that was the extent of the Government's experience.

Peter Viggers (Conservative, Gosport)

Does my hon. Friend agree that the Parliamentary Secretary, Lord Chancellor's Department took part in the Standing Committee and that when Ministers have assisted in taking a Bill through its Committee stage, it is a courtesy to the House that they should be present in the Chamber on Report to assist the House with their evidence and continue to give their support?

Robert Key (Conservative, Salisbury)

My hon. Friend and I both served as Ministers in the previous Government and I wholly agree with him, but then we are not dealing with a normal Government. We saw from the lack of contributions from the Back Benches in Committee that we are dealing with a steamroller rather than a Government. Between 1 February and when the Parliamentary Secretary spoke to our Committee, the Government's experience had changed. The Minister noted that the Judge Advocate General was satisfied that the equipment worked and further explained that the video equipment was portable. She said that the equipment was the size of a suitcase. It sounds to me a bit like "Mission Impossible". While it was clearly acceptable for the Judge Advocate General to examine the technology in action, it was not possible for the Members of the House charged with scrutinising the Bill to see it working. In their eagerness to get the Bill on the statute book, the Government seem to have got ahead of themselves. They set the Bill's provisions with blasé faith that videolinks would work in the prescribed circumstances. 2.15 pm Our inquiries have shown that video conferencing for the purposes of the Bill is still at the trialling stage. The equipment has not been proven, yet it remains at the heart of the Bill's provisions. In Committee, we also raised concerns about the security of videolinks. Once again, the Government failed to give adequate reassurance. We were told that interception was possible. I have made the point that in a modern television war, in which visual propaganda can prove an immensely effective weapon, as has been so ably demonstrated by the Iraqis and then the Serbs, one dreads to think what would happen if a disciplinary visual feed were intercepted. The Minister said that the narrow beam width would prevent interception by casual hacking and eavesdropping. I wonder how many intelligence surveillance operatives engage in casual hacking activity. My hon. Friend the Member for Reigate (Mr. Blunt) also raised the important point that such transmissions were not only vulnerable to interception but left an electronic signature that could betray an unit's presence and location—a signature that could provide the aiming point for a guided weapon. The lack of firm and convincing answers is the reason why we are seeking to amend the Bill so that the rules governing the use of the technology are subject to the affirmative procedure. The House needs a second look at this issue. The Government cannot gamble with our armed forces' operational effectiveness in this way. We hope that they will not seek to override the legitimate right of Parliament to see that only sound and thoroughly considered legislation emerges from this place. It is a matter of pure practicality. We believe that simply to trust the Secretary of State to make rules is against the interests not only of Her Majesty's forces but of natural justice. It is against the interests of natural justice that we are asking people to be tried in front of a video camera system that is unreliable, can be intercepted, and for which the technology does not yet exist. Yet, by 2 October, the Government plan to have the Bill up and running and in operation on a daily basis. We are very doubtful about that, and I hope that the Minister will be able to give us some satisfaction.

Menzies Campbell (Liberal Democrat, North East Fife)

I have some sympathy with the amendment, but not because I know much about videolinks and such matters. I do not propose to follow the hon. Gentleman down that path, although he made a number of trenchant points. As the hon. Gentleman said, the amendments would require the rules in the clause to be the subject of affirmative rather than negative resolution. The distinction between the two is often a fine one, but I have always understood that under the affirmative resolution procedure, the House of Commons is asked to engage more intimately in the process so as to pass judgment on the matters that are contained in subordinate legislation. Clause 8(2) at the top of page 30 of the Bill, as amended in Committee, says that rules may be made in relation to a number of matters. One can draw a distinction between rules made for essentially procedural issues such as arrangements preliminary to the proceedings; the representation of the person to whom the proceedings relate;…the administration of oaths;…the appointment of persons to discharge administrative functions under the rules and other elements of the criteria that fall into a rather different category, namely: the admissibility of evidence;…the immunities and privileges of witnesses. The admissibility of evidence may go right to the very heart of the proceedings and whether the proceedings will be held to have been concluded in a way that is favourable or adverse to the person who is the subject of them. Immunity for witnesses in certain circumstances means that witnesses may be available to give evidence in the knowledge that they can give evidence that might on the face of it incriminate them, but which cannot be used on subsequent occasion to institute proceedings against that person. Those are issues of fundamental importance but of a different character to the procedural arrangements that the rest of the subsection appears to embrace. That is why there is some justification for the view that, if rules are to be made in relation to the admissibility of evidence, the immunity of witnesses and the consequences of that immunity for subsequent proceedings, the House of Commons ought to pass judgment on those rules by way of affirmative resolution rather than accepting them by way of negative resolution. These are matters more of legal importance than of military significance, but the purpose of the Bill is to put in place proper legal structures affecting the incorporation into the law both of Scotland and of England and Wales of the provisions of the European convention on human rights. Admissibility of evidence and the immunity of witnesses are precisely the kind of issues that human rights lawyers would regard as being embraced by that convention. That is why the Minister should consider giving effect to the amendment, at least in so far as it relates to subsections (2)(c) and (2)(e), and why I have some sympathy with the amendment and the purpose that lies behind it.

Peter Viggers (Conservative, Gosport)

The debate is taking place only because of the enactment of the Human Rights Act 1998, which requires the European convention on human rights to be incorporated in our law by 2 October 2000. It is crucial that any legislation that we enact be compliant with the convention. Frequently in Committee the Minister answered points put to him by saying that it was essential that we should ensure that the law is compliant—a word that we heard many times—with the European convention.

Crispin Blunt (Conservative, Reigate)

Does my hon. Friend agree that although we heard many times that it was necessary to be compliant, we were never given the benefit of the legal advice upon which the Government had come to their conclusions—conclusions which the Opposition would almost certainly dispute?

Peter Viggers (Conservative, Gosport)

Indeed, and when the Minister was cross-examined as to whether he could confirm that we would be compliant, his line throughout was that we must, if necessary, err on the side of compliance; we must not take risks with compliance; we had found ourselves not to be compliant in the past—if in doubt, so to speak, surrender. That motto is not, I think, a cap badge of any known Army unit. We need to ensure that the detailed provisions are compliant. The details listed are quite wide. Rules will be made in relation to (a) arrangements preliminary to the proceedings; (b) the representation of the person to whom the proceedings relate; (c) the admissibility of evidence; (d) procuring the attendance of witnesses; (e) the immunities and privileges of witnesses; (f) the administration of oaths; (g) circumstances in which a review…may be carried out without a hearing; and so on. We are trying to ensure that we are compliant with article 6 of the European convention. The principal statement in that article is that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The subsidiary points include, under (d), a person's right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. How can we be absolutely certain that the European convention will be complied with, under the rules proposed by the Government? How can we be sure that the European convention will be satisfied if the attendance of a witness is by way of video conferencing? That is a crucial point. What does "attendance" mean? Does it mean attendance in a room physically with the accused, or in attendance by a video recording? If we do not know the answer to that, and if attendance does not have the usual meaning, but means visibility through a videolink, and if the European convention does not accept that attendance means presence through a videolink, we will not have complied with the convention and we will have wasted our time dealing with the clause. Therefore it is important, as we move into the unknown territory of trial through the medium of video conferencing, that there should be every opportunity for the House, the nation and the armed forces to have the expert advice and comment of lawyers conversant specifically with the law of the new media. The Minister who gave specific, expert evidence on the subject to the Committee was the Parliamentary Secretary, Lord Chancellor's Department. It was helpful that she was present and able to give us authoritative advice. It is unfortunate that, typically of the Government, the Parliamentary Secretary is not present to advise the House as the Bill moves through Report and Third Reading. It would have been helpful to have her with us. However, we can demand and should expect as of right that the Government accept that the provision should be subject to the affirmative rather than the negative procedure, if it is to pass into law; that the House should have a further opportunity to discuss the clauses and the rules in the light of expert advice which can be given outside the House; and that we are given another bite at the cherry on the rules. I therefore support my hon. Friend's amendment.

Martin Bell (Independent, Tatton)

I try to make it a rather seditious principle in the House to speak only about what I know about, which is why my speeches are so few and so short. I can claim to know something about videolinks, because I lived and worked by them for many years. It was an honour to serve on the Standing Committee scrutinising the Bill. I must thank the Liberal Democrats who, I believe, were suffering from overstretch at the time and gave me one of their seats on the Committee. I found it an intersting experience, and in some ways rather dismaying. I appreciate what was said in the House yesterday: we do, indeed, have a Government who listen—a Government who listen to themselves. I was struck by the quiescence of those on the Benches behind the Ministers who were speaking. I would have hoped that in a democracy there would be more of a dialogue both between Government members and between the Opposition and the Government. We could have achieved a lot more if we had been more collaborative. There are issues that give rise to serious concern. We are not simply constructing a law that will conform to the convention. We are trying to protect the rights of serving men and women. As the Secretary of State knows, there have been some flagrant and disturbing cases in recent years. We have tried to address those. On videolinks, we are dealing with custody hearings. We are speaking of the life of a serving man or woman—freedom or the denial of it for some time to come. What is important is not only the words spoken, but the demeanour. That is vital, both face to face and on the end of a videolink. Demeanour and the perception of it can be affected not only by words, but by the lighting, the sound, the quality of the videolink, and the camera angle. I will not say that the camera lies, but it certainly shades the truth. Professionals know that if they want to give a good impression of someone, they shoot him from a certain angle, and if they want to undermine someone, they shoot him from another angle. Serious issues are involved. As a sole independent, I lack the numbers necessary to move an amendment, but if the hon. Member for Salisbury (Mr. Key) chose to hold his ground on this, I should be delighted to vote with him.

Jonathan Sayeed (Conservative, Mid Bedfordshire)

It is a great pleasure to follow the hon. Member for Tatton (Mr. Bell), who made some important points arising from his own experience. I shall deal with two points—first, the use of the negative procedure on statutory instruments. I disapprove of secondary legislation. One of the problems is that it is unamendable. As we get more practice in the use of video links, we will want to change the legislation in subtle ways. It is therefore important that when we come to make those changes, as we will have to do, subtle amendments can be made. The Government may say that if it becomes clear during a debate that a statutory instrument is wrong, they will rewrite it and present it to the House again. However, since they have been power I know of no occasion on which they have reconsidered and amended a statutory instrument after a debate in Committee. They may say that they will do that, but I doubt it. A statutory instrument cannot be amended by negative procedure. That is a fundamental problem with the system, and with the Government's offer of presenting a statutory instrument through the negative procedure as a method of making changes in future. 2.30 pm My second point is about video links. The hon. Member for Tatton made some good points. It is also important to consider the views of Kingston TLI, the specialist company which handles armed forces television. The company pointed out that even a land-based system costs £300,000 to £350,000. Rental and personnel costs must also be taken into account. However, leaving aside the costs, we must consider the practicalities of establishing a video link. The Government talk about the way in which the Army would set up such a link, and I appreciate that the Army has more personnel. However, it is easier to establish a video link on land than at sea. It is easier because, for example, there tends to be a better supply of electricity and electronic silence is not such a problem. Baroness Symons said: Video tele-conferencing is also used in Kosovo and was used regularly in Bosnia.—[Official Report, House of Lords,16 December 1999; Vol. 608, c. 353]. She said it was easy to use. However, it is important to know the views of the experts, in this case Kingston TLI. Its comments support what the hon. Member for Tatton said. According to the company, to produce broadcast quality results, data have to be transmitted at a rate of 8 megabits per second. Inmarsat is capable of only 128 kilobits per second, which will support only low quality conferencing. While it has the advantage of being bidirectional, it gives a poor and jerky image. What does that mean? I shall take ships as an example because I know a little about them. In a ship on normal operations, much of the band width may be used. There will therefore not be much left for other, less immediately important matters. The ship may not have the requisite equipment, or if it does, it may be sending a video signal of a person who will be in danger of losing his liberty in a fashion that may prejudice his chances. The Bill includes a 48-hour rule on custody. Ships run electronically silent for long periods to evade an enemy. The Minister may claim that there would be no video conferencing if the ship was in conflict and we could wait until it was in safer waters. The 48-hour rule means that that does not wash. It may be necessary to secure a person in the way in which a commanding officer was entitled to do before the introduction of the Bill. However, he will not be able to do that because, under the 48-hour rule, a person who can be contacted only by video link has to authorise the detention. As I have said, ships run electronically silent for long periods. In such circumstances, it will not be possible for the ship to broadcast because it would thus reveal its position. A commanding officer will not necessarily be able to get permission to secure a person during the 48-hour period. I wonder whether the Minister has considered that.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

If the hon. Gentleman took the trouble to read the Committee proceedings, he would realise that we have already dealt with that point at great length.

Jonathan Sayeed (Conservative, Mid Bedfordshire)

I have looked at the Committee proceedings—

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

I said "read".

Jonathan Sayeed (Conservative, Mid Bedfordshire)

I also read them. Having looked at and read them, I do not believe that the Minister has dealt with the point adequately. We need to ensure that, if the equipment is on board a ship and it needs to be used, the time limit is sufficient to allow those in the Royal Navy to use the provisions. The Government's proposals on the use of statutory instruments and the rules for video links do not allow for subtle amendments to take account of experience. I am therefore happy to support the amendment.

Crispin Blunt (Conservative, Reigate)

I do not want to detain the House, but I wish to register my support for the amendment because of the enormous difficulty of phrasing and creating the statutory instrument. The Parliamentary Secretary has now disappeared; she replied to the debate when the subject was considered in Committee. She said that she hoped that it would be drafted by May, but that it would be introduced as soon as possible. We were told that the limiting factor was the availability of parliamentary counsel. However, I believe that it is the sheer difficulty of producing the statutory instrument in a manner that will withstand legal challenge. I look forward to the Minister's comments. I hope that he will be able to tell us when the statutory instrument will be introduced, even in draft. The Committee should have been able to examine it, but the Government failed to produce it. The least we can expect is that the affirmative rather than negative procedure will be u sed—[Interruption.]

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I am sorry to interrupt the hon. Gentleman, but I ask whoever has the electronic device to silence it or leave the Chamber.

Crispin Blunt (Conservative, Reigate)

I want to register my support for my hon. Friend. I perceive many difficulties with the measure; therefore the rules should be subject to affirmative rather than negative procedure.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

We covered video conferencing at great length in Committee and on Second Reading. Despite the ingenuity of tying the matter to the technical amendment that we are considering, I do not intend to spend much time covering it again. Use of video links in operational and commercial circumstances is now an everyday occurrence. The Ministry of Defence regularly uses video conferencing to communicate with our forces and allies all over the world. We do not depend on commercial satellite for video links. The hon. Member for Salisbury (Mr. Key) again used the misprint in Hansard on Second Reading. The correct figure is 128 kilobits per second, not 28. I must correct that or others will believe that I do not know what I am talking about; in this case, I do. I know a lot more than Opposition comments suggest that Conservative Members know. The judge advocate general and his staff were involved in a trial of video conferencing equipment for custody hearings in February. They are satisfied that the equipment is suitable. The judge advocate general said: I am not satisfied that the equipment I have seen demonstrated is adequate for hearings to be conducted in a fair and safe manner. We are not discussing trial. We are improving the rights of people who can be put in custody without review by a judicial officer and the same standards as might apply in a trial do not apply here. As the judge advocate general has said, the quality available is perfectly adequate to allow a judicial officer to make a fair—

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

I am grateful to the Minister for giving way, although I did not mean to stop him mid-sentence. I was not a member of the Committee, but I took an interest on Second Reading and have attempted to read significant portions of the Committee proceedings. Practicability comes to mind. In a battle or semi-battle situation, what would be the practicability of using video equipment? Has that been discussed with the judge advocate general? Can he summarise how he expects it to be used? Does the qualification "as soon as practicable", which one finds in various passages, provide a let-out or not?

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

I can confirm that it does. That is why those words have been used. Again, we covered the matter at length in Committee. Clearly the right hon. and learned Gentleman has not had the advantage of reading those debates, but the point is to recognise that there are operational situations in which, with the best will in the world, we cannot always apply the conditions that we should like to. He is quite right: I should not have stopped mid-sentence because I have forgotten where I was and am unable to complete my remark.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

Of course the Minister knows exactly what happened in Committee. If he gives me a day and a Hansard column number to refer to I shall be most grateful.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

I am afraid that the right hon. and learned Gentleman's gratitude will have to wait, because I have no idea of the day on which we discussed this matter. However, I assure him that I gave the Committee reassurance on the flexibility that we intend to build in to cover the operational situations he has described. To deal with the substance of the amendment, in Committee, my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department conveyed my regret that the rules to be made under the clause were not ready for publication. However, I undertook to have the instruments available in May and my officials are diligently working to that timetable. I understand hon. Members' desire to see the rules in draft. A great deal of detail will go into them and I accept that their content is vital to the efficient working of the system, but I do not believe that subjecting them to the affirmative procedure is the answer. A key purpose of rules made under secondary legislation is flexibility. That flexibility is essential in this case to ensure that we are able to adapt the rules to reflect changes in circumstances, procedures and best practice. The amendment would mean that any, even minor, changes in our rules over the years ahead would have to be subject to further debate in both Houses. I would think a lot more of Conservative Members' opposition to the negative procedure if they had expressed it a bit more often when they were in power. I do not recall any of the Conservative Members sitting over there voicing such opposition at any time while I have been a Member of the House, other than in opposition. The negative procedure is convenient and well established in practice.

Quentin Davies (Conservative, Grantham and Stamford)

I must correct the Minister. I frequently lobbied for reform of that procedure and shortly before the end of the previous Parliament put my name to a measure that proposed an initiative for such reform, although I cannot quote the date of the Hansard concerned. I agree that reform is needed urgently, but may I reverse the point? What are the new Labour Government doing to improve the farce of the House's treatment of secondary legislation?

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I can excuse the Minister from answering that wider question.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

Thank you for your ruling, Mr. Deputy Speaker. Although I accept what the hon. Gentleman says, it is interesting that his disloyalty in government has been rewarded with a post in opposition. [Interruption.] I would very properly be ruled out of order if I mentioned the single currency.

Jonathan Sayeed (Conservative, Mid Bedfordshire)

The Minister's comment about reform was also directed at me. I assure him that if he goes back far enough—probably to 1986 or 1987—he will find that I was one of those who supported my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) when he said that he strongly deprecated all secondary legislation.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

I disagree completely. Secondary legislation is very useful, particularly when the negative procedure is involved, and can be dealt with reasonably quickly. This matter has been examined by the Delegated Powers and Deregulation Committee of the House of Lords, which gave its usual careful consideration to the rule-making powers sought by the Bill, including those under the clause. Its report accepts the proposed use of the negative procedure and states that the Committee has considered carefully whether it is appropriate that a power wide enough to regulate the admissibility of evidence and the immunities of witnesses should not be subject to affirmative procedure. The rules will be part of a framework consisting of existing legislation and subordinate legislation made under it. The whole will have to be compatible with Convention rights under the Human Rights Act 1998. Against that background the Committee can accept that it is appropriate that the rules should be subject to negative procedure … Because of that, and for the other reasons that I have outlined, I am afraid that I cannot support the amendment.

Robert Key (Conservative, Salisbury)

My goodness, is not Parliament a menace when it gets between the Executive and its clients? I am sorry that the Minister is being so scratchy, but his scratchiness makes the point that we have won the argument hands down, and I am grateful for the support of my hon. Friends. He failed to address the point about video links, both now and in Committee, and the Government have failed to make the case. We are discussing the affirmative procedure as a principle. It is no good banging on about what might or might not have happened under previous Governments—he is in charge now—and if he thinks that reform is a good idea, and if he thought that it was a good idea then, why does not he do something about it, as my hon. Friend the Member for Grantham and Stamford (Mr. Davies) suggests? There is another important point here. The Minister quotes the judge advocate general and says that he is satisfied, but he does not happen to be a Member of the House of Commons who has to decide what is in the interests of justice for our armed forces. We have to take that decision and we are not satisfied. That is what the Minister has to realise. The matter is not a simple one of him stitching something up with some important part of the Ministry of Defence without consulting the House. Having won the argument hands down and in view of the time pressure that we face with protected business to follow, it would not be responsible to take a quarter of an hour out of these brief proceedings to put the amendment to the vote, knowing that some 300 absent Members of the House will flood in to support the Government.

Crispin Blunt (Conservative, Reigate)

The number of absent members are not 300 but about 400.

Robert Key (Conservative, Salisbury)

My hon. Friend is right. It is significant that the other 400 are waiting outside, even though only six or seven Labour Members are present. We had better put the Minister on probation and we shall be watching extremely carefully. No amendments have been made, which is most peculiar.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

We were focusing on the practicability of the use of video links and the delay that might be permitted in battlefield situation. My hon. Friend was present throughout in Committee. Was he satisfied with the Minister's answers? In a sentence can he tell us what he said about flexibility and practicability? What's my hon. Friend's opinion?.

Robert Key (Conservative, Salisbury)

My right hon. and learned Friend is right, and I was wholly dissatisfied with the Minister's responses in Committee. He said that it was unlikely that such circumstances would arise in a battlefield situation and said the same on the issue of discipline. We were also told that, should they arise, the accused person would be withdrawn from the battlefield. He and the Government are on probation. We shall no doubt return to these matters, either when we consider the Armed Forces Bill or at a later stage. Bearing in mind all that and the moral victory that we have scored in the argument, I beg to ask leave to withdraw the amendment.

RIGHT TO ELECT COURT-MARTIAL TRIAL

Robert Key (Conservative, Salisbury)

I beg to move amendment No. 6, in page 32, line 10, at end insert— '(1A) The Defence Council may by regulations make provision designating those persons who, either before or after the accused has elected for trial by court-martial. may counsel him on that decision'. The purpose of the amendment is to ensure—[Interruption.] Oh, I wonder whether we should pause at this point in order to call back some Members who seem to have decided to leave the Chamber. No; we are back to our usual small team. The purpose is to ensure that, either before or after the accused has made his or her decision to be tried by court martial, no person will be able to force the accused to change his or her mind, and opt to have the matter dealt with summarily. The amendment underlines the problems that the Bill creates, rather than solves. The same theme runs throughout the Bill. By introducing a potentially cumbersome and unnecessary opportunity for people to opt for court martial at the beginning of proceedings, the Government will create tensions within units. It is easy to imagine how aggrieved the non-commissioned officers and the commanding officer of a unit would be should one of their subordinates opt for court martial for a minor offence. That would convey the message—whether true or otherwise—that the unit was not being run well, and that the men did not have confidence in their superiors. It would certainly not reflect well on the commanding officer: it would give the impression that he was not in control of his unit-hence our assertion that the Bill undermines the authority of commanding officers.

Norman Godman (Labour, Greenock and Inverclyde)

Speaking as a former barrack-room lawyer—

Jonathan Sayeed (Conservative, Mid Bedfordshire)

Former?

Norman Godman (Labour, Greenock and Inverclyde)

I shall not respond to that. I am asking a question. Can the hon. Member for Salisbury (Mr. Key) give us an example or two of designated advisers? In the case of a private soldier, would the adviser be a regimental sergeant-major or, perhaps, a civilian?

Robert Key (Conservative, Salisbury)

The hon. Gentleman, who I understand was a redcap, is aware of the issues. I promise him that I will come to his point, if he will hold his horses for a moment. As always, Conservative Members have an eye on how things operate in the real world, rather than on the clean-cut, perfect fairytale land in which the Government seem to think our armed forces operate. We tabled our amendment with an eye on how forces discipline works in practice. When the matter was considered in another place, my noble Friend Lord Attlee tabled an amendment similar to this one. As a serving member of the Territorial Army, he felt strongly that the new system allowing the accused to choose court martial for almost any offence was open to abuse by the accused's seniors. He feared that they might try to persuade the accused to opt for a summary trial on the grounds that it would be cheaper and quicker, and also that they might want to keep the matter "in house". The persuasion could take the form of superiors' making it clear that the accused's life could be very difficult in future, or suggesting indirectly that the accused's career prospects could be, shall we say, curtailed. There was an extensive debate in the other place on 18 January, the report of which my hon. Friends will find in columns 1012-14 of Hansard. I shall not delay the House by quoting from it. At present, there are no safeguards to prevent undue influence from being exerted on the accused. As the opportunities for courts martial increase, so does the potential for abuse of the system, but the Government seem to have done nothing to eliminate the possibility of such abuses. The Bill overlooks the realities of life in the services, just as it overlooks so many other things. Several times the Opposition have raised the spectre of "behind the barrack block" discipline. It happens now, it is wrong, and there is no doubt that the Bill will only increase the likelihood of its happening. We hope that the amendment will introduce additional protection, and that the Minister will accept this simple but important measure. Let me respond to the hon. Member for Greenock and Inverclyde (Dr. Godman) by saying that we understand that the matter should not be in the hands of members of the chain of command. That would not comply with the European convention on human rights. We were told—indeed, my noble Friend was told in another place—that there would be access to lawyers independent of the chain of command. However, that in turn raises the issue of who the lawyers are to be. Members of the Army legal service, for example, are not perceived by the forces to be truly independent. They are independent legally, but they are part of the chain of command. We must therefore fall back on independent civilian lawyers, but that is a problem, not least because the Ministry of Defence is very bad at paying them. Before Christmas, the Lord Chancellor's Department changed the rules, which inhibits the proper working of the process. There is also the practical problem of how to get civilian lawyers to members of the forces in such circumstances. The situation is fraught with difficulty. That is why we are asking the Government for an assurance about how the process can be made to work.

Norman Godman (Labour, Greenock and Inverclyde)

I will be brief because I hope to speak in the next debate, but I want to assure my hon. Friend the Minister that, if the amendment is put to a vote, I shall not support it. I have just returned from Kosovo, where I spoke to officers and other soldiers. I know that the hon. Member for Salisbury (Mr. Key) has also been in Pristina and elsewhere. I think that those soldiers are doing a remarkably fine job, along with our RUC officers; but I am concerned about, say, the young soldier who is apprehended for some misdemeanour, and who might feel entirely alone and defenceless in a guardroom, surrounded by regimental police officers who are not always as sympathetic as military police officers. Will the Minister assure me that young soldiers and others who are caught up in such circumstances will have access to advice?

Menzies Campbell (Liberal Democrat, North East Fife)

I confess to some surprise at the notion of "Be a carer: join the redcaps". Such a slogan would not be immediately recognised by many who have served in the armed forces as a reflection of their own experience. There is a problem here, although I am not sure that the amendment is the way to deal with it. Someone who had opted for court martial could easily find himself or herself the subject of pressure. If the other provisions of Army discipline provided that such pressure constituted an offence that could itself be subject to disciplinary proceedings, that would afford a measure of protection. Perhaps the Minister will be able to illuminate the matter by reference to some such provision elsewhere, but I think that the hon. Member for Salisbury (Mr. Key) has drawn attention to a possible problem, which might cause certain individuals not only embarrassment, but something rather worse. I shall be interested to hear what solution the Minister has, if—in accordance with what might be described as the immaculate conception of the legislation so far—he refuses yet again to accept an amendment.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

It is difficult to discern the underlying purpose of the amendment. I accept that its intention is to provide additional safeguards, rather than imposing restrictions on an individual's right to seek advice—which it could equally be read as doing. The point relating to the offence is legitimate, although we did not consider it when drafting the Bill. It would be dealt with more appropriately by the Committee that will consider the quinquennial review next year, as by that time we shall have had a chance to see how the new law is working in practice.

Menzies Campbell (Liberal Democrat, North East Fife)

I think the Minister is right about the potential effect of the amendment. It could be interpreted as prescribing a very narrow range of people from whom a person who opts for court martial would be entitled to seek advice. That would clearly be contrary to the intention of the amendment. There is a possible problem, but the amendment may not be the best way to deal with it.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

I agree. If the list included the sergeant-major and no one else, we would all have a bit of difficulty in accepting that. If all the regulations purported to do was provide a list of persons who might be able to advise the accused, the amendment is surely unnecessary. An informative list of suitable advisers can be made readily available at any time without the need for legislation. All three service discipline Acts contain provisions allowing for rules to be made governing, inter alia, the withdrawal of an election for trial by court martial. 3 pm The current system provides that an accused charged with an offence will be given a pamphlet outlining his rights. He will also be afforded the services of an accused's adviser of his choice, who is normally an officer or warrant officer. Thus, from the outset, the accused will be made fully familiar with his rights under the disciplinary process. Under the present summary discipline system in the Army and Air Force, once the commanding officer finds that the charge has been proved, an accused may have up to 24 hours to decide whether to elect for trial by court martial, in accordance with provisions in Queen's Regulations. In the Royal Navy, before the evidence is heard by the commanding officer, the individual is given at least 24 hours to consider whether he wishes to exercise the option for trial by court martial, in cases where he has the right to elect. I admire the intention behind the amendment but, having read and reflected on it, and in view of the other provisions that we have made, I think that it is unnecessary.

Robert Key (Conservative, Salisbury)

The quinquennial Bill has at last appeared—the Christmas tree has been decked—so we await with interest the results of the assessment of how the new law is working in practice, as the Minister put it. I am glad that he has accepted that the intention was wholly constructive: to ensure that no undue pressure is put on people who might be persuaded to change their minds after their initial choice. Given that assurance, I beg to ask leave to withdraw the amendment.

Robert Key (Conservative, Salisbury)

I beg to move amendment No. 1, in page 34, line 1, leave out clause 12.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss the following amendments: No. 7, in clause 20, page 41, line 30, leave out— 'no more severe than that originally awarded' and insert— 'fair and just in all the circumstances'. No. 8, in page 41, line 41, leave out— 'no more severe than that originally awarded' and insert— 'fair and just in all the circumstances'. No. 9, in page 42, line 5, leave out—1 'no more severe than that originally awarded' and insert— 'fair and just in all the circumstances'. No. 10, in page 42, line 34, leave out— 'no more severe than that originally awarded' and insert— 'fair and just in all the circumstances'. No. 11, in page 42, line 43, leave out— 'no more severe than that originally awarded' and insert— 'fair and just in all the circumstances'. No. 12, in page 43, line 5, leave out— 'no more severe than that originally awarded' and insert— 'fair and just in all the circumstances'.

Robert Key (Conservative, Salisbury)

During the Bill's passage through both Houses, the Opposition have maintained that it undermines the authority of commanding officers. Clause 12, whereby the maximum punishment that the court martial can award is limited to the maximum that the CO could have awarded if he had dealt with the case summarily, is damaging and clearly undermines the authority of officers and the discipline system in the forces. The measure is doubly flawed—the provision is unnecessary to comply with the European convention on human rights. Lord Mayhew of Twysden made the position clear on Second Reading in the other place. He asked whether clause 12 goes quite beyond and against the Police and Criminal Evidence Act 1984. Crown Courts can of course impose higher sentences than magistrates. That is not something required by the convention on human rights and is itself likely to encourage elections for trial by court martial rather than by commanding officers—which surely must be deleterious.—[Official Report, House of Lords, 29 November 1999; Vol. 607, c. 680-1.] The measure shows how the Government have got it wrong. They are not just gold plating and bending over backwards to comply with the convention, but going way beyond what is needed. The Government have argued that, because they see the summary justice system as non-compliant in that respect, we cannot use a comparison between a magistrates court and the Crown court in the civilian field, but an accused has an opportunity to be tried in a compliant court—that is to say, a court martial—which has a range of punishments available to it that is laid down in statute to match the seriousness of the charges being made. The fact that an accused has an opportunity to have those charges heard in front of a commanding officer, but in a non-compliant system, whose powers of punishment are more circumscribed, is of benefit merely to the accused. He is able to choose to have a convention-compliant trial if he so wishes. As, in any event, he is being given the facility to appeal the commanding officer's decision, that is further proof against challenge on that part of the Bill under the convention, so our proposal to strike out clause 12 restores the position of common sense and adds consistency with the civil sector. Under the provisions, when the accused can receive no greater punishment than the commanding officer can give, there is no disincentive to elect for court martial. A service man can insist on election for court martial for even the most minor offence. There is a danger that such cases may never be dealt with due to the backlog of more serious cases. Both the Select Committee on Defence and several peers in another place were concerned that the new provisions might mean that, without the risk of incurring a more severe punishment, more personnel might elect for trial by court martial. The Select Committee was told that, on the basis of surveys that the Army had conducted of Army offenders who were currently guests at Colchester prison, as well as officers and regimental sergeant majors, it was likely that the possibility of a more severe punishment would remain a disincentive. The majority of personnel believed that it remained quite high risk to go straight to a court-martial. However, the Bill will mean that the possibility of a more severe punishment is removed. Therefore, the disincentive is being removed. The Select Committee's witnesses believed that summary justice, administered by the commanding officer, would remain the preferred option of most offenders, but, in the case of personal animosity between a CO and an accused service man, the accused could elect for court martial to spite his CO and superiors. As has been made clear before, the Bill is an invitation to the barrack-room lawyer. Yet again, we see that too much in the Bill is based on a perfect world model, with accused service men being of good and reasonable character and team players, but it is obvious that the Bill will in many cases apply to service men who have done wrong. For a host of reasons, they may not wish to co-operate or acquiesce. They may feel that there are good reasons for them to play the system. The Bill gives them plenty of opportunities to do so. I know that only a tiny minority of people are subject to discipline anyway in the forces. Nevertheless, they can be a significant factor, making life difficult for everyone else. The Select Committee shared our concern that the more protracted process of courts martial might lead to delays in justice being done and being seen to be done quickly, and that aggrieved colleagues of an accused person might feel tempted to take matters into their own hands. For those reasons, we believe that the clause should be removed. It will undermine the status and authority of the commanding officer. It runs the real risk of abuse by the rare dissatisfied and disaffected elements in the armed services, and could lead to unwelcome delays in the administration of justice. In Committee, the Minister recognised that the Government were bending over backwards to comply with the convention. He said that he wanted it to be watertight. That is fair enough, but the Government have not made a sound case for the inclusion of the clause. As my hon. Friend the Member for Reigate (Mr. Blunt) pointed out, even if a British court made a judgment that the Government had erred against the ECHR, all that would be needed would be a defence counsel instruction to courts martial that they should not impose a greater sentence than that available to the commanding officer. Therefore, the foundations of the clause lie on uncertain ground. I invite the Minister to make a firm case for the clause. If he cannot, we shall have to see what to do about it, but it is a sensible suggestion. I look forward to the Minister saying why clause 12 should stand part of the Bill.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

I rise to support what my hon. Friend the Member for Salisbury (Mr. Key) has said. It seems that the Government are driven by their interpretation of the European convention on human rights, but, from what he has said, it is not clear that the convention demands the clause. My impression is that it does not demand it and that the matter could be dealt with perfectly sensibly in the way that he has indicated. The clause seems to have significant disadvantages, which my hon. Friend has set out well. To say that someone can demand to go to a higher court, or to a more substantial court—a superior court—where, normally, higher penalties would prevail, but that those higher penalties would not prevail should that person exercise that right, seems thoroughly illogical and almost entirely inconsistent with our magistrates court-Crown court parallel, which one would have expected to be followed. I consequently support what my hon. Friend has said. I shall listen with great care to the Minister's reply.

Peter Viggers (Conservative, Gosport)

I beg to move amendments Nos. 7 to 12 inclusive, which stand in my name.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. There is no need for the hon. Gentleman to move the amendments. They have effectively been moved with the lead amendment; he just speaks to them.

Peter Viggers (Conservative, Gosport)

I am grateful to you, Mr. Deputy Speaker. I was anxious to point out that the amendments in my name have a similar purpose to that of amendment No. 1 The amendments would ensure that the summary appeals court specifically has a power to impose a sentence that is fair and just in all the circumstances, rather than, as the Bill currently provides, a sentence that is no more severe than that originally awarded. I think that that is an important point. In November 1999, the Government estimated that of the approximately 7,000 cases heard annually by commanding officers, there are about 850 to 900 appeals—although they have increased that guesstimate to about 1,500. The number of appeals will of course have a bearing on the number of service personnel and lawyers employed to deal with them. If the Government's estimates are correct, the system costs approximately £9 million annually. However, if the number of appeals should increase, the system's costs will increase accordingly. In Committee, the Minister was very fair in stating clearly that the civilian court system, on appeal, provides an opportunity for the senior court to impose a heavier sentence than that imposed by the junior court or court of first instance. Subsequently, the Minister tried to explain to us why he thought that, to be compliant with the European convention on human rights, it is necessary that the military system should contain three elements, the first of which is that the accused must be offered an alternative of trial by court martial. The second is that the court martial should not be able to impose a greater penalty than that which the commanding officer could have imposed initially. The third is that, on appeal, the summary appeal court should not impose a sentence greater than that imposed by the commanding officer. I am seriously concerned that, if the appeal court cannot impose a sentence greater than that imposed by the commanding officer—if there is no right for the appeal court to increase a sentence—the number of appeals will be very substantially greater than that currently anticipated by the Government. What has an accused to lose if he discovers that his sentence cannot be increased on appeal? It seems to be entirely sensible that, in this matter, the military courts should follow the same system used by the civilian courts. I defy the Minister to explain to us clearly where article 6 of the convention on human rights provides that it is not possible to allow an appeal court to impose a higher sentence. For those reasons, I support amendment No. 1.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

I tell the hon. Member for Gosport (Mr. Viggers) that we are advised that the right of appeal will render us compatible with the convention only if the accused is not in jeopardy of a more severe sentence on appeal. As much as I should like to satisfy the request of the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) for clarity in the law, I regret that that is not something that is at my disposal. If the law were a bit more clear generally, we would not need so many lawyers to explain it.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

Will the Minister give way?

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

No, I do not intend to give way as there is no time. I am taking up time that we could spend on Third Reading.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

It is on this point.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

All right, I will give way as I referred to the right hon. and learned Gentleman.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

I am grateful. I think that the Minister will appreciate that we are considering two different issues. The issue of whether on appeal from the commanding officer a sentence could be increased is one thing, and a rule that it should not be increased is fully understandable and may well be consistent with the convention. However, that is a quite different issue from that of whether, when a court martial is requested or demanded in the first instance, the sentence should still be only that which a commanding officer could impose. It really is important that the Minister should tell the House his advice on that point.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

I shall be as clear and as brief as I can. My advice is that if the court to which a person elects his proceedings to be transferred is to be compliant, it must have no greater penalty than that of the court from which he elects to withdraw. That is the reason.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

Will the Minister give way?

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

No, I cannot give way again.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

I ask the Minister to give way. It is very important.

Lewis Moonie (Labour/Co-operative, Kirkcaldy)

No; it is not important enough for me. I have given way once and that is quite enough. I am guided by convention, and I think that the right hon. and learned Gentleman should recognise that. The change proposed in clause 12 is to ensure that an accused is not disadvantaged by electing for court martial trial. The rationale for that is to ensure that no one is dissuaded from exercising from the outset the right to be heard by a European court of human rights-compliant court solely because he or she is at risk of a more severe penalty. That is a fundamental point in the advice that we have received. Article 6 of the convention provides the right to a fair trial, which, in convention terms, is not provided by a summary hearing. A summary hearing, for example, is not heard in public, and the defendant is not entitled to legal representation. Nevertheless, an accused may choose to accept such a hearing and decide to be dealt with summarily—as we believe that most accused still will, despite the Bill's provisions. If the accused does wish to exercise the right to a fair trial, it is wrong that, in doing so, he should run the risk of a greater penalty. Capping the sentencing power available to the court martial is the only possible way of securing article 6 rights for the individual. I am sorry, but I cannot accept amendment No. 1.

Robert Key (Conservative, Salisbury)

Undoubtedly the Minister's words will be heeded in interpreting the law when, in future, matters are considered by the courts—that is how these things work now. However, I regret that he has decided that he must fall back on the legal advice that he has been given without giving way to my right hon. and learned and distinguished Friend the Member for North-East Bedfordshire (Sir N. Lyell), who has shed such light on dark corners of the law over so many years in the House. However, that is the position that the Minister has adopted—he is clearly in a take it or leave it mood today. As I said, we have to make a judgment on the matter and decide whether to press the amendment to a Division—although my right hon. and learned Friend says that he thinks that the current position is thoroughly illogical and inconsistent, and I entirely agree with him in that analysis; my hon. Friend the Member for Gosport (Mr. Viggers) has made a powerful case in speaking to his amendments; and the House has not been very well served in this debate. In view of the time, and the protected business that follows this debate, I must beg to ask leave to withdraw the amendment.

John Spellar (Labour, Warley)

I beg to move, That the Bill be now read the Third time. As I am mindful that a number of hon. Members wish to speak in our limited time, I shall be brief. The Bill has a simple purpose: to ensure that, in two key spheres—summary discipline and pre-trial custody—our procedures are compatible with the European convention on human rights. That is not a casual concern, but one based on court rulings and subsequent legal advice. The Bill deals with that concern. We believe that it safeguards our procedures from the likelihood of successful challenge, although, as we have acknowledged, it is impossible for any Government to provide an absolute guarantee that procedures may not fall foul of a court ruling at some stage in the future. However, we believe that the Bill does what is necessary to preserve critical spheres of the system of discipline, and that it does so in a manner that is proportionate to the convention's requirements. The Government are fully aware of the imperatives of discipline and of the distinctive features of service life—although the Opposition may seek to give the impression that they have a monopoly on understanding those matters. We are not prepared to trifle with service discipline, and the Bill demonstrates that fact. The Bill also demonstrates what we have had to do because of court rulings and subsequent legal advice. It is difficult to imagine that any Government exercising those proper responsibilities would or could have acted otherwise. The Bill preserves the authority of the system of discipline in the armed forces. In doing so, it achieves the Government's and the services' objectives. That is a tribute to the excellent work of our Bill team and legal advisers. I hope that, even at this late stage, the Bill might command the support of the whole House. I commend it on that basis.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

Will the Minister give way?

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I think that the Minister has completed his speech.

Robert Key (Conservative, Salisbury)

It was revealing, last week, to see the newspapers reporting the warning given by the Home Secretary for public bodies not to "panic" over introduction of new laws guaranteeing human rights. When one hears the phrase "don't panic" in the context of the armed forces, one is reminded of the catch phrase of the dithering Corporal Jones, in "Dad's Army". In almost every episode, he would cry, "Don't panic, Captain Mainwaring!" Perhaps we could liken Defence Ministers to Corporal Jones, who was by trade a butcher, as they have certainly made enough choice cuts to the armed forces. Like Corporal Jones, they also seem to have been running around in a panic, by introducing this flawed and unnecessary Bill without thinking of its consequences. In a report, on 30 March 1999, The Daily Telegraph quoted various people, including a member of the human rights task force, whom it said had been combing through the whole range of public policy to identify where problems were likely to occur. One member of the task force was quoted as saying: It's a litigant's charter. The lawyers will make a fortune. What's new? The story continued: Ministers and officials from each Department have been summoned by the Task Force led by Mike O'Brien, the Home Office Minister, to assess their readiness for the legislation. Has the Ministry of Defence been summoned before the task force? Was it before or after the Bill was drafted?

John Spellar (Labour, Warley)

No.

Robert Key (Conservative, Salisbury)

The Ministry of Defence has been spared. How very interesting. One of the characteristics of our debates has been the Government's steadfast reluctance to give any indication of the legal advice that they have received. I suspect that we have witnessed another shameful episode of the Government saying one thing and doing another. They have said that the Bill is necessary to protect the authority of commanding officers, but they have been kowtowing to the Home Office on human rights. It has been a strange Bill to follow through the House. There has been a curious lack of Government amendments. The Government like to say that that is because of the quality of their drafting, but, with no disrespect to the Government's lawyers, I suspect that it is because they wanted to rush the Bill through in the shortest possible time. The 2 October deadline is fast approaching and all the stops must be pulled out. Ministers have given commitments in both Houses to come up with a single Act to amalgamate the three service discipline Acts. That is a serious commitment, in view of the chequered history of the issue. Successive Governments have been seeking to achieve such amalgamation since 1991. There is no evidence that the Law Commission is in a position to provide parliamentary draftsmen to help in the work. Recent parliamentary questions have confirmed that. Despite the expressed good intentions of Ministers, there is no evidence that their aim can be achieved in a reasonable time scale. The latest ministerial estimate was that it would not be achieved in the next quinquennial Act, due next year, but in the one after. Give or take 10 years is a fairly safe time scale—after all, we have been trying for the past 10 years—but it is not good enough. We shall seek to return to that issue. In most cases during the passage of the Bill, Ministers have just ignored what we have said. The Opposition are used to making arguments that are then voted down by the Government. The Government are often rightly accused of high-handedness and arrogance. Ministers have not been able to justify their conclusions on the Bill and have gone into autopilot mode, parroting the briefing material. I am sorry that the Under-Secretary has had to leave the Chamber, although I entirely understand why. I would prefer him to be sitting in front of me as I quote his words from Standing Committee, but I must draw the House's attention to an exchange on 2 March. My hon. Friend the Member for Reigate (Mr. Blunt) had asked a question and been told that the Minister would respond later. My hon. Friend said: That is a trifle unsatisfactory. We have to decide now whether clause 2 should stand part of the Bill. My hon. Friend then asked whether the Committee could adjourn to allow the Under-Secretary to take advice. The Chairman rightly said: It is a matter for the Under-Secretary how he chooses to respond and a matter for Committee how they vote. The Minister then said: Indeed it is, Mr. Malins. As my reasonable offer has been rejected, I shall not bother to enlighten the Committee at a later stage. The Bill is as it stands and I shall support it from start to finish. My hon. Friend then rose to intervene, but the Under-Secretary carried on: The hon. Gentleman will resume his seat or rise on a point of order. I am under no obligation to explain anything other than that which I choose to explain. The Bill is as it stands.—[Official Report, Standing Committee D, 2 March 2000; c. 75.] I greatly regret that exchange. There are many other examples. In the Select Committee on Defence, my hon. Friend asked the Minister for the Armed Forces: Can you guarantee that…the new system of military justice that it brings in would be proof against ECHR judgments? The Minister replied: I could no more guarantee that than the Member for Mid-Sussex could have guaranteed it when it was introduced in the 1996 legislation. That is fair enough, but we have been told time and again in Standing Committee that the Bill would gold plate against the ECHR. We do not know where this unsatisfactory Bill will lead us. In the end, it is down to the forces. The Government have tried to make military law ECHR-compliant. I was delighted earlier this week when the Chief of the General Staff launched his excellent document, "The Values and Standards of the British Army". It was many years in the making. I congratulate him and all the staff at the adjutant-general's department. I draw the attention of the House to two sections of the document. The section on the core values of the Army, in paragraph 11 on page 7, says: Soldiers volunteering for the British Army accept that, by putting the needs of the Service before their own, they will forgo some of the rights enjoyed by those outside the Armed Forces. But in return they can at all times expect fair treatment, to be valued and respected as an individual, and to be rewarded by reasonable terms and conditions of service. Paragraph 15 says: Because discipline is so vital to success on operations, commanders must be able to enforce it when necessary. That requires clearly understood rules and a military legal system which can deal with offences such as absence, desertion or insubordination which are not found in civil law. And if it is to work in war, such a system must be in place in peace. for it cannot be turned on and off at will. Discipline must therefore be rigorously but fairly upheld by all those in positions of authority, and self-discipline must be deeply rooted. No doubt the Bill will reach the statute book shortly, in spite of all our argument. We feel that it will undermine the system on which British military success has depended for generations. We are mindful of the fact that, in the end, discipline is self-discipline. It is in the hands of commanding officers and of every member of Her Majesty's forces in seeking to live up to the ethos and standards of British military life, which have served this nation so well down the ages.

Mike Gapes (Labour/Co-operative, Ilford South)

I speak as a member of the Select Committee on Defence and of the Standing Committee that considered the Bill. Some of those who have contributed today have forgotten the basis on which the Bill was introduced. It is necessary for two reasons: to comply with the European convention on human rights and because the legislation introduced by the Conservatives in 1996 was clearly inadequate and, following the Hood case, was going to lead to problems and legal judgments against the Government. We have heard many complaints from the Conservatives today, but they have to recognise that their 1996 legislation is inadequate and has to be replaced. The Select Committee drew attention to several issues, pointing out that the Committee's 1996 recommendations for a consolidated Act for the three services had not been acted on. The report says: We regard the consolidation of Service law as an urgent matter and recommend that the MoD address this matter with more urgency than has been the case hitherto. As a member of the Select Committee, I want to place on record the important need for the issue to be taken forward. That argument should be supported on both sides of the House. If consolidation is not proceeded with, the Select Committee will have to come back to the issue. I congratulate the Government on submitting the Bill to Select Committee scrutiny before its consideration in Standing Committee. The Select Committee concluded its brief report by saying: We hope that on future occasions the MoD will see the benefits of introducing legislation in draft form so that we can take up the opportunity to comment on proposals before they are formally introduced into Parliament as Bills. That is an important step forward that should apply to all Government Departments. Pre-legislative scrutiny is important to ensure that we get legislation right. The fact that we were able to consider the Bill in a limited way before it went through the House was a step forward. It would help the modernisation of the House and give us more effective government if Select Committees conducted pre-legislative scrutiny of all legislation.

Menzies Campbell (Liberal Democrat, North East Fife)

A theme that has run through our proceedings has been that the Bill is a legal necessity that has been brought upon by the adoption in domestic law of the European convention on human rights. I shall put the matter rather differently and say that it is not simply a matter of legal necessity; it is a matter of desirability in a democratic society whose armed forces cannot be immune from the development of the rights of citizens, and in particular of those rights as they are now codified in the convention. It seems, therefore, that it could be expected that all right hon. and hon. Members, on both sides of the House, would wish to subscribe to the objectives that are set out in the Bill. It appears, from what has been said by the hon. Member for Salisbury (Mr. Key), the Opposition spokesman, that the House will not divide on Third Reading. In a sense, that is matter for some congratulation.

Robert Key (Conservative, Salisbury)

indicated dissent.

Menzies Campbell (Liberal Democrat, North East Fife)

If the Opposition are proposing to divide the House, that is a matter of considerable regret. I shall make three points on the justification for the Bill. First, in the post-cold war world, the armed forces have an evolving role. The structure of discipline within the armed services should reflect that. Secondly, the role of our volunteer and professional services is to defend democratic values. That is why they are deployed in difficult and dangerous places throughout the world as we conduct these proceedings. It is correct that we should ensure that the system of discipline that directs these deployments is one, so far as is practicable and compatible with the functions of the armed services, that represents the very democratic values that they are doing their best to defend. Thirdly, the armed services should reflect what is best in our society. We should expect them to reflect the values that we regard as being important and fundamental. I do not accept the argument that the armed services are so special and so different that they should be dealt with in a way that ignores the rights conferred upon citizens by the European convention. That approach turns the armed services into a ghetto in one respect, and perhaps also disconnects them from the civilian society of which, under our system, they form part, but to which they are subordinate because responsibility for the direction of our military rests in this place, particularly on the Treasury Bench. The Bill has desirable as well as necessary objectives. It affords a fresh look at a new system of discipline for the armed services. It reflects the values which all citizens, whether in uniform or not, are entitled to expect. If its Third Reading is pushed to a Division, that is why I shall be in the Government Lobby.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

I listened carefully to the right hon. and learned Member for North-East Fife (Mr. Campbell). I shall explain why I disagree in part with what he says, though I agree in part. Yes, there are desirable aspects of the Bill, and it is right that our law should seek to comply with the European convention on human rights. However, there are three points which the Government would do well to listen to more carefully than sadly they appear to have done during the Bill's passage. I was deeply disappointed with the responses of the Minister. I am sorry that he is not in the Chamber because I do not like to criticise Members in their absence. However, I must make the point, and I shall make it good in relation to the three matters that I wish to take up. I think it came out in our debate on clause 12 that we shall put in place a system of summary justice within the armed forces that can be sustained only on the basis that it is voluntary. We have all been brought up to believe—my hon. Friend the Member for Salisbury (Mr. Key), speaking from the Opposition Front Bench, made the point clearly when reading from the relevant document that I believe was put out by the armed forces—that when an individual joins the armed forces he agrees to some extent, and I would not wish to push it too far, to forgo some of his civilian rights for the purposes of good order and military discipline. One of the things that he accepts is that he will be subject to the discipline of his commanding officer in relation to comparatively minor offences. It is clear from the structure of the Bill that the individual will have to be asked whenever he is brought up on colonel's orders whether he will accept that summary discipline. The colonel—the Army—cannot say, "No, this is simply a matter of colonel's orders. You can appeal if you dislike the result, but in the first place you must go before the colonel." The individual has, in effect, to put aside his right to court martial. He has a right to go to court martial even for an offence that results in 24 hours in the guard room. That seems silly. That is why I sought to intervene on the Under-Secretary of State to get him to explain the situation more fully. I think that there was a misunderstanding—I would not like to call it an abuse, but I think that that was the result—of our parliamentary procedures on the Minister's part. If a Bill has been sensibly discussed over six or seven days in Committee and then comes before the House on Report, when serious and sensible questions are asked, and the Minister does not attempt to answer them, he is falling short of what the House is entitled to expect. Summary discipline has now become voluntary under the Bill. Of course, there will be a great deal of behind-the-scenes pressure to accept that voluntary discipline, but it would be much better if it were up front. I have great respect for Government lawyers—I was responsible for them for many years—but I have a great deal of difficulty in accepting that the European convention requires summary discipline to be voluntary. I shall be grateful if the Minister, or his officials, will write to draw my attention to any learned articles that support that point of view so we may reflect further upon it. I move on to quasi-judicial confirmation of custody. If something untoward happens in an active service situation—I use those words advisedly—the individual can still be held in custody for only 48 hours, or a maximum of 96 with the confirmation of a judicial officer. After charge, he can be held in custody only if that is confirmed by a judicial officer. I think that the House is perfectly happy with that parallel system in circumstances other than active service, and it is entirely practicable to achieve it. However, it seems nonsensical on active service. The Government have not made clear the extent to which there is flexibility in, to use the words that appear frequently in the Bill, as soon as is reasonably practicable. Much has been made of the use of video links and the impracticability of using them on the battlefield, which would seem to need little debate. My hon. Friend the Member for Mid-Bedfordshire (Mr. Sayeed) made the point that ships at sea maintain electronic silence. It is absurd that they should be breaking that silence to obtain approval for continued custody in the rare but, if it occurs, probably important circumstances where custody has to be imposed. That brings me back to the point that I made on Second Reading in the context of the European convention. It should be remembered that the convention allows derogation from its terms only in circumstances that amount to war or other public emergency threatening the safety of the nation. All the former Yugoslavia conflicts, including Bosnia and Kosovo, demonstrate that many if not most of modern-day conflicts do not fall into the category of war. Happily, they do not fall either into the category of emergencies that put the safety of the nation at risk, but they do put at risk the safety of members of the armed forces. Effective maintenance of discipline is therefore essential. I hope that the Government, through our ambassadors and others, will see whether the European convention, which was incorporated into our law in 1999, can be brought up to date so that it is practical for the 21st century. At present it is not very practical. That is not entirely the Government's fault, as it was difficult to strike a balance on the decision to incorporate, but it is one of the significant disadvantages of that decision. The Bill will pass to the statute book in due course, but I hope that the Government will take account of the points that I have raised. If my hon. Friends on the Opposition Front Bench are minded to divide the House, those matters are sufficiently important to justify their decision, and I shall be quite content to support that decision in the Lobbies.

Martin Bell (Independent, Tatton)

I shall be even briefer than usual. Former service chiefs have expressed doubt about the Bill, although that is not shared by present service chiefs. I do not know how reluctantly or enthusiastically they endorse the Bill, but nothing matters except the rights of our service men and women. I am not convinced that those rights have been strengthened by the Bill. One amendment would have strengthened them by making legal aid available at the point of arrest rather than at the point of charge. Many soldiers are treated hideously, and the present Minister for the Armed Forces is the third to have to deal with the Stankovich case. In all my years as a soldier, as a journalist working alongside the Army and now as a Member of Parliament, I have never come across another case in which injustice was so gross or blatant—and the man involved was not just a British soldier, but a British hero. I plead with the House: we must introduce a measure, perhaps in the next Bill on this subject, to protect our national heroes and not penalise them.

Crispin Blunt (Conservative, Reigate)

It is a bitter irony that the House is about to approve a Bill, driven by the European convention on human rights, that will weaken the system of justice for our soldiers, sailors and airmen. The first part of the Bill deals with custody rules. It is the one part of the Bill that is driven by a judgment from the European Court of Human Rights. That judgment involved a man called Hood, the only soldier that I know of to take his case to the European Court. He was complaining about the unfairness of the Army's rules of custody and the ability of commanding officers to remand people in custody. Hood had been absent without leave four times before his commanding officer arrested him, and judgment in his case took five years. The Bill creates a massive administrative burden involving judicial officers, and so on. That burden is not the result of manifest injustice in the armed forces: it has been imposed simply to meet the requirements of the European convention on human rights. The second part of the Bill changes the period in which a soldier may elect for court martial. That will make such a soldier's position worse. The Bill does not allow a commanding officer an opportunity to find a soldier not guilty before that soldier must decide to accept his award or go to court martial. The Bill will force a soldier to make that decision earlier, so removing the opportunity to be cleared by his commanding officer. Commanding officers are not really aware of the detail of the Bill. Neither was I, until I served on the Select Committee, and took part in the debates in Standing Committee and on Second and Third Readings. The Bill did not seem very important. Commanding officers will find, however, that the administration of justice for armed forces personnel will be seriously undermined. The Bill will demand rules of evidence that non-commissioned officers—the first links in the chain of command in the execution of justice—will not be able to meet. How do the Government think that those NCOs will be able to maintain discipline in the sub-units that they administer now that they cannot use the summary discipline procedure? I hope that my hon. Friends on the Front Bench will divide the House on this matter. I used to be a regular soldier, and I have to say that the Bill does not advance the interests of armed forces personnel. Instead, it makes their position worse. I accept that the rules relating to custody in the first part of the Bill are driven by a European convention judgment, but the Government have offered no evidence that the rest of the Bill has been required by other judgments from the European Court of Human Rights. It is time to do what we should have done in 1951, had we only had the prescience. We should make a reservation for our armed forces from the European convention on human rights and the European Court. In that way we might prevent what is a bitter and extraordinary irony—that this Bill will make the administration of justice for our soldiers, sailors and airmen worse rather than better.