My Lords, in supporting this draft SI and accepting that revision is not an option, I still have a couple of points to raise. The overriding objective introduced in all three types of service court seems, on first reading, to be almost entirely motherhood and apple pie, or should almost be taken for granted as sound administration. But I accept that, in the legal world, it is perhaps better to have every likely “i” dotted and every possible “t” crossed. It also follows a recommendation of his honour Shaun Lyons, whose knowledge and expertise in service law and procedure is well recognised and respected. It is right, therefore, that this new section is inserted.
However, I noted, although the accompanying memorandum does not mention it, the extra Rule 3A(2)(h)(v), which is not in the criminal court’s rules. It reads,
“the need to maintain the operational effectiveness of Her Majesty’s forces.”
I imagine some printing amendment will replace “Her” with “His”, but this raises the question of who decides. Presumably the Defence Secretary is responsible for such a judgment, but can he tell a court marital what to do? It may be so unlikely that the situation never arises; in which case, why put it in at all?
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Say a key witness is, at short notice, an irreplaceable specialist in a Trident boat whose patrol is about to start and immutable, what then? What if the defendant argues that his Article 6 rights are being set aside or delayed for some operational reason? In the legal world, is this issue better left unsaid? I raise this not to argue against the draft rules but because the Minister’s response may provide further guidance on how the phrase “operational effectiveness” should be interpreted. Indeed, I notified the Minister last week that I would mention this today.
My second point, which is dealt with in the memorandum, is the inclusion of a female lay member. It seems slightly inconsistent to argue both that the small number of females available means that none might be called to serve but that there will always be enough to find at least one available. Should such a rule apply were the Judge Advocate to be a woman? Making this subject to guidance rather than a statutory rule might have been easier to administer, but I accept that restricting it to only sexual crimes was unnecessary and provocatively sexist. I await with interest the Minister’s response on operational effectiveness.