My Lords, once again we have had an interesting debate. In many respects this has been a more technical SI than the earlier one, but none the less, it has generated points of interest and I will do my level best to address them.
The noble and gallant Lord, Lord Craig, raised the very important issue of who decides. This duty created by the instrument to consider operational effectiveness is vital, and the noble and gallant Lord was good enough to indicate to me where his area of concern lay. I have tried to do some research into it, and I will try to deal with the points that he raised.
It will be for the judge advocate alone to decide what should or should not be done to take account of the need to maintain operational effectiveness. However, it is important to put this provision in context. The overriding objective is that cases be dealt with justly. Some slight mischief was articulated about this being motherhood and apple pie. The essential components are good, but that is because we are replicating what already exists in the civilian criminal justice system, and it works. I make no apology for transporting that into our court martial procedures because I think these are virtuous and will greatly improve our court martial system.
The reference to operational effectiveness does not change the overall objective that cases be dealt with justly. Nor does it affect in any way a defendant’s right under Article 6 of the ECHR. It is there to recognise that the services courts deal with cases where defendants, board members and witnesses will generally be services persons, who will often have other important and sometimes unpredictable commitments.
The role will give judge advocates the flexibility to take this into account. The kind of scenario where we expect it to be relevant would be, for example, where the date of a trial might need to be brought forward or, indeed, delayed, or a witness might be allowed to give evidence via live link. Certainly, I reassure your Lordships that the Judge Advocate-General was consulted and agreed with the use of the phrase “operational effectiveness” in the context of this change.
I thank the noble and gallant Lord for raising an important point. I have tried to address it. The fact that the Judge Advocate-General is content with the position I think provides significant reassurance.