Armed Forces Bill — House of Lords, 2016-02-11
Topic: Defense
John Burnett (Liberal Democrats, Centre to centre-left): My Lords, it is a great pleasure to follow the noble Lord, Lord Judd, who was a distinguished Navy Minister, and I join with him in paying tribute to the members of our Armed Forces and their families. They always exceed the high expectations we have of them. In addition, it is a pleasure to say that we have had three outstanding maiden speeches today. No one could fail to be moved by the speech of the noble Lord, Lord Shinkwin In a debate on 15 September last year, to which my noble friend Lord Thomas of Gresford has referred, I said some words about the existing courts martial regime and some of its failings. This Second Reading debate on the Armed Forces Bill is an opportunity to elaborate on the criticisms I made in the earlier debate and to make one or two other points The Armed Forces Bill provides the system of command, discipline and justice for the Armed Forces. It covers the renewal of the powers of courts martial and, where there are failings in the courts martial system, now is the time to highlight those failings and to endeavour to remedy them. My first point is that there has been considerable criticism of the fact that, in a court martial, a simple majority can convict a defendant. My noble friend Lord Thomas of Gresford, who has considerable experience in these matters, has been a long-standing critic of this iniquitous rule. The Judge Advocate-General himself has been critical In the case to which I referred on 15 September, involving Sergeant Al Blackman of 42 Commando Royal Marines, five panel members found the defendant guilty, while two found him not guilty. That ratio would not have been sufficient to convict in a civilian criminal court. It is outrageous that members of our Armed Forces serving in the most dangerous and demanding conditions—serving our country—should be treated less favourably than their civilian counterparts. One of the principal aims of the military covenant was to ensure that this did not happen and that members of our Armed Forces were not disadvantaged. A simple majority goes against the rules of natural justice, and amendments should be brought forward in Committee by the Government to bring the conviction ratio in line at the very least with the standard in civilian criminal cases My second point concerns the choice of individuals to serve on the panel. In civilian cases, the defendant can challenge members of the jury who, for one reason or another, are likely to be prejudicial. The ethos of a court martial is that you are supposed to be tried by your peers. In the case to which I have referred involving Sergeant Blackman, all of the panel, not just some of them, should have been drawn from individuals who had served through the horrors of the front line in Afghanistan or in similar combat conditions, who would have understood the effects that constant mortal danger, exhaustion and stress can have even on the strongest and best-trained individual—especially if that person had, over recent years, done six six-month tours on combat operations and witnessed the level of barbarism and brutality inflicted on his comrades by our enemies. As in civilian criminal cases, the court martial rules should be amended to allow a defendant the right to challenge individual panel members to ensure that he is truly tried by his peers Finally, like many others in this debate today, I should like to highlight the impact that human rights legislation is having on our Armed Forces. There are currently well over 1,000 public law claims filed against the Ministry of Defence in connection with British military action in Iraq. In addition, there are thousands of private law claims. These claims often relate to operations in which British Armed Forces were engaged decades ago. Our troops must at all times comply with the Geneva conventions, but we must ensure that we do not paralyse our Armed Forces with legal red tape and doubt. This leads to death and defeat In an excellent article in the Times on 30 March last year, Mr Tom Tugendhat, who has recently left the Armed Forces and who has considerable recent operational experience—I should add that he is now a Member of the other place representing Tonbridge and Malling—wrote: "By applying human rights laws designed for the stable conditions of peaceful, postwar Europe to our forces operating in extremely violent and fast-moving combat situations, judges are damaging the fighting capability of the most accomplished military force in Europe. Victories abroad are being undermined by defeat after defeat before the benches of London and Strasbourg. … The Geneva Conventions allowed our troops to detain combatants or civilians if necessary — but our judges, and Strasbourg, couldn’t see the difference between Helmand and Henley" Those who drafted the European Convention on Human Rights did not intend the convention to apply outside the signatory states, and the Geneva conventions should take precedence in law There is power to derogate from the convention. I believe that the French Government contracted out of the convention in respect of their Armed Forces. I hope that the noble Earl will explain what steps the Government are taking to do the same.