Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2007

My Lords, I declare an interest as having appeared as an advocate in a number of courts martial, not least the case involving Baha Musa, to which the noble Lord, Lord Astor, referred, and the case of Martin, which is the fundamental issue in one order before your Lordships' House tonight. It took me back some 11 or 12 years to a time when I stood in a court martial in Monchengladbach, wondering how I could ensure a fair trial for a young boy of 17—although at the time of trial he was 19—charged with murder, who had been taken to this country on remand and had been on remand in Colchester for12 months but was flown back to stand trial before a court martial, although he was a civilian and although his father, who had been a serving soldier, had left the Army. It struck me at that time—and I made an application as a result—that nothing could be more unfair or appear to be unfair than to have a young civilian boy tried for the most serious crime before military officers when he had not himself ever become a member of the military. It was a tragic case. The unfortunate victim had undoubtedly been murdered, but although she was not a serving soldier herself she was a member of the officers’ mess, which to my mind made it rather worse. As your Lordships know, we appealed it all the way to the Judicial Committee of this House, on the basis that the trial was unfair. The Appellate Committee unanimously held that if Parliament had said that a 17 year-old boy was subject to service discipline and could be tried for murder in Germany, it could not be described as an abuse of process. This was before the Human Rights Act had come into force or was even a Bill. Consequently, we lost the appeal. However, the noble and learned Lord, Lord Slynn of Hadley, said that it was, "““disturbing and… wrong in principle””," and the noble and learned Lord, Lord Hope, said that it was quite inappropriate. I pay tribute to my instructing solicitor, Mr Gilbert Blades, who has done so much to improve military law in the course of his career and who with great determination took the matter to Europe. It took12 years—or nine years, anyway. The date of the application was 1998 and the decision was made in the autumn of last year that there should be a judgment from the European Court of Human Rights in Strasbourg to the effect that only in exceptional circumstances should a civilian be tried by a military tribunal. I raised this matter at the Bill’s Second Reading on 14 June last year. I was delighted that, in the end, the legislation contained provisions for the members of trial tribunals to be entirely civilian laymen but, as yet, the Act has not come into force. It seems to me that, by introducing this provision tonight, the Government have responded perfectly properly and have indicated how the Human Rights Act andthe European Court of Human Rights can work. The Minister will appreciate how pleased I am by the Government’s decision to take this step and by how far it ensures that the military system of justice will work properly for the civilians who accompany armed forces abroad. I now come to the draft continuation order before us. Last year’s Act was a significant step forward: it did a great deal to improve the quality of military justice. From these Benches we put forward certain suggestions which were not acceptable, even to military people on the Cross Benches. We suggested that at times the services should sit as, for example, a joint tribunal and that there should be input from each service into a case. That was not acceptable, but our proposals were all minor compared with the thrust of the Bill that brought the three service disciplines together. I hope that in future there will be a fair and proper system of military justice based on the principles set out in that Bill. The noble Lord, Lord Astor, referred to the acquittals that have taken place. They have not occurred because of any weaknesses in the military justice system but, in my view—I merely give my opinion and have declared my interest—because of a lack of resources in the investigation phase and mistakes made at that point which led to the prosecutions that did not succeed. However, if the Government are prepared to provide the investigatory branch of the Armed Forces with full and proper resources and training so that they are on an equal footing with the investigation forces in the United Kingdom—if they are capable of doing the samesort of thing forensically and so on—I have no doubt that the procedures will be fair for everyone. Consequently, I am looking at only one aspect of the measure. I know that the continuation order covers a lot of military matters which have nothing to do with courts-martial, but I am very pleased to see the order continuing. I assure the Minister of our active interest in, and probable support for, the many statutory instruments that will follow. On the service police amendments order, I have nothing to add to what the noble Lord, Lord Astor, said, save that we support it.