My Lords, we on these Benches are very grateful to Sir Richard Henriques for his report and recommendations. We understand why, in the three months since they were published, they have received only light-touch consideration from the Government. Perhaps I can be forgiven for giving some historical context to the role of the chain of command in courts martial, because it appears in Amendment 43 and in the Bill.
In 1757, Admiral Byng was convicted not of personal cowardice but of failing to do his utmost to engage the enemy in an attack upon French forces besieging the British garrison in Menorca. The truth was that his fleet of ships had been hastily assembled by the Admiralty. They were in poor condition and he had to retire to have them repaired, but he was convicted by court martial under the Articles of War and, despite pleas for clemency, even by the Prime Minister William Pitt himself, George II refused to commute the sentence. Admiral Byng was shot on the quarterdeck of a British ship by a firing squad. Your Lordships will recall that Voltaire, in his book Candide, commented that in Britain, it is good to kill an admiral from time to time to encourage the others—“pour encourager les autres”.
Courts martial were seen then, and for 200 years afterwards, as an instrument of discipline rather than justice. It is undoubtedly the case that men were shot for cowardice in the First World War to encourage their comrades to go over the top. Discipline was seen to be a function of command, and the commander must achieve discipline to secure cohesive action and singleness of purpose.
It was the Labour Government of 1946 who appointed a commission to examine the administration of military justice. It advised the appoint of a civilian judge-marshal but made no change in the way the board and the prosecuting officer were appointed. So it was that in 1996, the structure of courts martial was still within the chain of command. The convening officer, who was the field officer in command of a body of the Regular Forces within which the person to be tried was serving, was the person who decided the charges against the defendant, appointed the board and the prosecuting officer and arranged the trial. He—the convening officer—could dissolve the court martial during the trial, in the interests of the administration of justice, and could comment on its findings publicly, in the interests of discipline. He confirmed the findings and could reject or change the sentence, so the board was still subject to command influence.
A fair and impartial trial is obviously difficult in an atmosphere of command control. All the personnel connected with the trial are dependent, or were at that time, on the commanding officer for assignments, leave and promotion. A member of the board could not deviate too far from his commander’s views of the case if it might affect his career. That is why, following the criticisms made by the European Court of Human Rights in Findlay, we brought about such significant changes in 2006. Justice is now the dominant element and in a volunteer army, this is vital to morale and to the retention of personnel, as Sir Richard Henriques himself comments.
Despite this history, the Government have rejected Sir Richard’s recommendation 14. In paragraph 5.4.1 of his review, he says:
“An investigating body, charged with the responsibility of investigating serious crime allegedly committed by members of the Armed Forces, must be hierarchically, institutionally and practically independent both of the chain of command and of those whom they are under a duty to investigate.”
The wording that he uses—“hierarchically, institutionally and practically”—comes from the judgment in Jordan v United Kingdom, 37 EHRR 2. Explicitly, the European court was following Lord Steyn in 2003 in the Appellate Committee of this House, where he said:
“Public perception of the possibility of unconscious bias is the key.”
That issue of public confidence was raised by the noble and learned Lord, Lord Thomas of Cwmgiedd, at the last hearing of this Committee.
However, instead of following that wording and explicitly breaking away from the chain of command, the Government have put forward the existing wording taken from the 2011 Act, as the noble Baroness, Lady Goldie, pointed out. New Section 2A, proposed by the noble Baroness’s Amendment 42, would impose a duty on the provost marshal to ensure that all investigations are “free from improper interference”. That in no way matches the language of recommendation 14 of Sir Richard Henriques’s report, which makes an explicit break from the chain of command.
In recommending a strategic policing board for civilian governance and oversight of the provost marshal for serious crime, in paragraph 5.6.13 of his report, Sir Richard Henriques looked around the world. He looked to New Zealand, Australia and Canada. He also considered the function of the independent advisory group, which was formed for Operation Northmoor in this country. It appears that he agreed the composition of the strategic policing board with the Chief of Defence Staff and the Chief of Defence People.
Today, the noble Baroness told us that the Government have accepted the strategic policing board’s structure, but it is something to be put into the future. The strategic policing board is the person who stands behind and is the instrument of governance of the proposed provost marshal for serious crime. You cannot have one without the other, so perhaps the noble Baroness will explain how you could appoint a person to a position and give them responsibilities without first having the strategic policing board of civilian governance and oversight that Sir Richard Henriques called for.
Finally, I add my support to Amendment 66 and its requirement for a report to ensure that Sir Richard Henriques’s recommendations are carried out.