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

My Lords, I am grateful to the noble Lords for the support that they have given to these three orders. I noted carefully what the noble Lord, Lord Thomas, said in response to theaction taken by the Government following the Martin case, of which he has much knowledge and experience. The notice the noble Lord, Lord Astor, gave me of his questions enabled me to provide substantive answers and I shall take each of his points in turn. The noble Lord asked what progress the Government have made in producing an accessible manual of military law. I am delighted that work is well in hand on that. In future, the manual will be known as the Manual of Service Law. It will provide guidance to the members of all three Armed Forces and will come into effect in January 2009, although a version will be available for training in summer 2008. On the relationship between the court martial system and the Adjutant General’s administrative instructions, I point out that those are the Army General and Administrative Instructions. In essence, the court martial deals with criminal offences, rather like the Crown Court in civilian life, while administrative action, which is provided for under the Army General and Administrative Instructions, is intended to deal with professional misconduct. The AGAIs can deal with a professional failing that has been brought to light by a court martial or a civilian court. The noble Lord asked whether the Government think it is necessary, in light of the recent acquittals, to reappraise the practices and procedures of the service prosecuting authorities. I remind the House that the service prosecuting authorities are independent of the chain of command in terms of the role that they perform as prosecutors. In that regard they come under the general superintendence of my noble and learned friend the Attorney-General.If any action were needed to reappraise theirpractices and procedures it would be a matter for him to decide. In matters of service discipline, the relationship between commanding officers and the service prosecuting authorities is most easily defined by the soldier who finds himself in trouble. The service prosecuting authorities are independent of the chain of command and will take an independent view based on the facts of the case and whether there is sufficient evidence to bring a case to trial. In that context, the commanding officer is the chain of command and he is responsible for ensuring that a man under his command who was facing charges is cared for properly and has everything to which he is entitled. It is important that we provide the proper training and support to commanding officers to ensure that they are properly equipped to fulfil that role. The noble Lord asked under what circumstances members of the Armed Forces deployed or serving on operations can be subject to civilian jurisdiction after acquittal by the military legal system. I suspect that the noble Lord is referring to the case of Trooper Williams, or Lance Corporal Williams as he now is. I shall not detain the House on the background of the case, as I am sure noble Lords are fully aware of it. Trooper Williams was acquitted of charges in the civilian system. The changes introduced in the Armed Forces Act 2006 mean that there should be no repeat of the circumstances that led to Trooper Williams being tried in the civilian system. Commanding officers will no longer have the power to dismiss charges, as Trooper Williams’ CO did, but the Director of Service Prosecutions will have the power to issue a direction that there should be no further proceedings in the military or civilian system. However, if a member of the Armed Forces is tried by the military justice system, the rules against double jeopardy would prevent even a murder charge being tried in the civilian system. I concur with the noble Lord that it is very important to maintain a distinction between the military justice system and the civilian criminal justice system. I believe that the provisions of the service discipline Act and the Armed Forces Act 2006 operate to do just that. The noble Lord asked me what the outcome was of the Government’s review of the support mechanisms available to members of the Armed Forces accused under that discipline Act. That is quite a complex area. I shall write to the noble Lord to update him on the issue and I shall place a copy in the Library of the House. I was asked about the recent Law Lords ruling in the case of Baha Musa and what assessment the Government have made of the implications for members of the Armed Forces serving on operations abroad. We have already accepted that the European Convention on Human Rights applied in the Baha Musa case. However, it is important to recognise that the judgment says that the Human Rights Act applies in limited circumstances when we have control of an area such as an embassy or, as in this case, a detention facility. The policies and procedures covering detention are already consistent with applicable UK convention obligations. The judgment on the application of the Human Rights Act relates only to the availability of a remedy before UK courts in respect of alleged breaches of the convention by the Government. The criminal law regulating the conduct of our Armed Forces and the standards demanded of them remain the same and are wholly unaffected by this judgment. The noble Lord further asked me whether we would appeal the ruling in the case of Baha Musa and what additional training requirements on the Armed Forces will be entailed. As this is a House of Lords judgment, the Government cannot appeal it. As far as our Armed Forces are concerned, it is business as usual which will not require additional training or measures. Finally, on the progress which the Government have made in identifying exceptional circumstances—where, in the court martial of civilians, lay members should be members of the Armed Forces—and the guidelines we intend to have, this is an important and difficult area. Because the European Court did not define ““exceptional circumstances”” in the Martin judgment, it would be rash for us to draw up a prescriptive list of what it includes. It was clear from the judgment that the European Court meant ““very exceptional circumstances””. From the work we have done on this to date, it seems apparent that each case will have to be judged on its merits, which makes it difficult for us to provide hard and fast guidance to the court administration officer. But we will be working closely with the Military Court Service to develop a set of indicators which might point to exceptional circumstances in a particular case.