My Lords, I shall speak to my contention that Clause 7 should not stand part. It is a probing amendment. First, may I say that I agree wholeheartedly with the Minister’s opening remarks about the differences between members of the Armed Forces and others? This always needs to be foremost in our deliberations on disciplinary matters. Indeed, I stressed this point when the House was considering the Human Rights Bill in 1998.
At Second Reading, I expressed particular concern that the effect of this new clause would be to make a vital part of disciplinary procedures for the Armed Forces subject to devolved treatment, as the noble and learned Lord, Lord Thomas of Cwmgiedd, has mentioned. The Armed Forces are a national, United Kingdom force. Any devolution of their oversight or control from central government does not make sense.
I further expressed concern about the protocol which this clause alludes to but is silent on what it should say in detail. Other noble Lords have been suggesting what should be included. Clause 7 suggests that protocols are to be agreed in the three legal jurisdictions between the Director of Service Prosecutions and, as we have heard, the equivalent civilian prosecutors in England, Wales, Scotland and Northern Ireland. Will they be identical? Certainly, the Director of Service Prosecutions cannot ensure that. He is expected to deal with three separate individuals, all of whom have the right to the final word. One way to finesse these two points might be for the Director of Service Prosecutions, guided by an agreed protocol, to be given the final word.
New Section 320A(7) requires the Secretary of State and others to be consulted but it is not clear that even the Secretary of State could reject the proposed protocol. Surely the Bill should be much clearer than at present about these possibly different protocols. It may be argued that any divergence of view would, in practice, be unlikely to arise and “common sense” would prevail. However, this is far from ensuring no divergences. I pointed out at Second Reading that there is no guarantee of how the three civilian prosecutors would view handing serious criminal military cases about which there is already a wide divergence of view, as amendments before this Committee make clear.
Finally, while the pressures to move service justice under separate independent scrutiny and handling have steadily increased following the major disciplinary changes of the 2006 Act, the impact of excessive delays in civilian courts should not be overlooked. As the NAO recently reported:
“The backlog of cases in the criminal courts is likely to be a pervasive issue for several years”.
Surely, swifter justice in a court martial—there are only about 400 on average every year and very few are in the serious category—might be welcome to the accused and to any victim of the crime.
To quote Gladstone:
“Justice delayed is justice denied.”
What is fair about adding long, excessive delay to court proceedings for the accused service individual? The service interest may also be damaged if an accused is acquitted, having spent months or years away from their post awaiting trial. Is there not a case for the accused to be allowed to elect for court martial trial if that were significantly to speed up the process?
The integrity of the court martial system remains essential to the Armed Forces. It may at any time be deployed globally; it should not be diminished. I fear the judgment of noble and learned opinion favours more use of civilian courts.
5.15 pm