Armed Forces Bill

Let me make a little progress, and then I will allow some more colleagues to intervene. I want to say a word or two about the offences under part 1. All offences under the Bill are service offences. They are divided into two types. First, as now, service personnel will remain subject to the ordinary criminal law of England and Wales wherever they are serving. Secondly, the disciplinary offences that are unique to service law—many of which will be familiar, such as going absent without leave or looting—have been reviewed and brought up to date. We have removed certain offences because they are no longer appropriate or no one is ever charged with them, or because they are more properly charged under other provisions or dealt with administratively. It is not just the offence of scandalous conduct of officers that has gone. Other examples include"““allowing sequestration of aircraft or ship by a neutral state in time of war””" and billeting and requisitioning offences. I want to say something now about the role of the commanding officer, which has featured in many interventions, before giving way to hon. Members. In our armed forces, commanding officers are responsible for the discipline of those under their command. A large part of the exercise of that discipline is done by example and leadership. Their authority is critical to the delivery of unit cohesion and operational effectiveness. As I said, that authority is primarily exhibited through their qualities of leadership and by inspiring the confidence, loyalty and trust of those who serve under them. Those qualities have long distinguished the British armed forces from many others throughout the world. Ultimately, commanding officers must have the power to enforce discipline throughout the military criminal justice system. The Bill provides commanding officers for the first time with harmonised powers to deal with all people under the command of whatever service. To create such harmonised powers, we are reducing the theoretical extensive summary jurisdiction of commanding officers in the Royal Navy. I use the word ““theoretical”” because in reality those commanding officers do not exercise their powers over very serious matters, not least because their powers of punishment are far too limited. That might address points that hon. Members raised earlier. We are, however, increasing the powers of Army and Air Force commanding officers to deal with the small number of additional criminal offences that are set out in part 2 of schedule 1 with which, in straightforward cases, Navy commanding officers already deal summarily. There is thus some diminution of powers for the Navy, but a big increase within the armed forces. The summary powers of commanding officers recognise the importance of not only giving authority to COs but being able to deal with such matters expeditiously. As part of that recognition, we are also harmonising the powers of commanding officers to deal summarily with officers up to the rank of lieutenant-colonel and equivalent, subject to certain conditions. Part 5 of the Bill sets out the duties of commanding officers in respect of allegations that a serious offence has been committed. Clause 113 provides that a commanding officer will be required to inform the service police as soon as practicable in the event of an allegation of a specified inherently serious offence, or an offence for which certain prescribed circumstances apply. The service police, who may already be investigating the matter, are in turn required to refer the case to the independent director of service prosecutions if they think there is sufficient evidence to charge a person with one of the inherently serious offences. It is the director of service prosecutions who will decide whether to bring charges on the basis of proper tests and a real understanding of the military context. That is the kernel of the relationship among the commanding officer, the investigating officers and the director of service prosecutions. I stress that the offences that we are talking about are those that are inherently serious; they are ones of which there cannot be a minor example. They include civilian criminal offences such as murder and rape, other serious sexual offences, robbery, terrorism offences and so on. They also include some disciplinary offences that I am sure the whole House would agree are inherently serious, such as assisting the enemy and mutiny. The maximum sentence for those disciplinary offences is life imprisonment. I want to explain why we are making the changes, so that hon. Members can perhaps understand the way in which they are meant to protect the integrity and independence of the military system. At present, if a person is charged, the commanding officer has the power to dismiss a charge—whether the offence is serious, such as those that I have mentioned, or not—without any form of hearing or evidence. Under existing law the result of such action means that even in extremely serious matters, such as those that I have just mentioned, dismissal excludes any further proceedings in the military system. Thus, the evidence is never heard and no decision in the case is ever taken by any independent service prosecuting authority. The case is dismissed by a commanding officer, no matter how serious, without any hearing, as I have said. That is theoretically possible. It has happened in practice. The case cannot then be tried at any other stage, whatever the misgivings, whatever the feelings thereafter or whatever the decision in the military system. That, however, is not necessarily the end of the matter. Where civilian courts also have jurisdiction, civilian authorities may take action. The jurisdiction of the civilian courts may come into play as a result of the services being prevented from taking any further action on the matter even if there is afterthought through just such a technicality. That is what I wanted to address and we wanted to address. It is the problem that gave rise to so much dissatisfaction over one particular case. The Bill will ensure that the director of service prosecutions will decide on serious cases, and that on serious cases a commanding officer’s action cannot prevent further action by the services themselves. Some people have attacked the proposal as interfering with hallowed historical powers of commanding officers. It is simply wrong, however, that commanding officers alone must be able to decide whether to charge those under their command with serious offences such as rape or murder, and to do so without any hearing, or to dismiss a charge that has been brought without any form of hearing. Even if that were not wrong, which I believe it is, it gives rise to allocation afterwards to the civilian courts as the matter is prevented from any further consideration under the military system. I do not think that commanding officers should be placed in that position and have that responsibility placed on them for such offences—and nor do they. As long as they have such responsibility, the services will be open to recourse to civilian law as in the Trooper Williams case, which gave rise to so much antagonism and unease throughout the House, the other place and outside. I have explained to the House that we have taken these steps to prevent something of the sort happening again.