Armed Forces Act (Continuation) Order 2019

“we look forward to the report of his review in around a year’s time”.—[Official Report, 23/11/17; col. 390.]

Specifically I ask, now that we are in February 2019— 15 months on—and because there has been no public consultation, could noble Lords see the report if it is ready now, before any more work is done on the next Bill?

As the Attorney-General, I initiated and signed a protocol deciding, in those cases where civilians are involved, the most appropriate judicial machinery. I trust that the protocol is working well. Given the reduction in the size of the Armed Forces, despite the fact that various courts have held military courts to be human rights-compliant, there is a case for bringing military courts more into line with civil courts, particularly for the most serious cases, which are my concern. Experienced military prosecutors will ensure that the services’ general discipline needs will be protected. I emphasise that it is the most serious cases, such as murder and rape, which should be tried by a jury, with a judge appointed by the President of the Queen’s Bench Division, who allocates members of the High Court Bench for the more serious cases in our courts, where he or she sees the need. This should be a routine matter as opposed to an occasional departure. The very fact of the rarity of murder and rape cases reinforces my view that an unfair burden is imposed on the judge advocate when such cases are the day-to-day business of High Court judges, who deal with these matters, and licensed senior circuit judges.

The membership of the court martial is hierarchical, and I am told that the most junior member is asked to express his conclusions first. This is not an easy task for a junior member of the court martial, who might be sitting for the first time. Secondly, court-martial verdicts are decided by a majority. You can be convicted of murder or other serious offences by a three to two verdict. This is hardly 21st-century stuff. Thirdly, the voting is secret. In New Zealand in recent years, using the UK system as a model, they have decided that convictions must be unanimous. In our civil courts, there are strict procedural rules for juries to endeavour, first of all, to reach a unanimous verdict and, if they fail to do so, to reach a verdict by a majority of 10 to two where there is a jury of 12. Lastly on that point, the voting figures are made known to the public, to the court and particularly to the accused.

I trust the review will address the problems which I raised in some detail in 2017, and be bold despite the findings in the past on human rights compliance with the existing procedures; and also fulfil the Government’s aim, as the noble Baroness said in November 2017, of a court-martial system that is effective and also fair, in my words, for the 21st century.

In thanking the Minister for the written replies, I ask him now, in the light of the plea I am making, to pursue this matter further with the Scottish Government and the Law Officers in Scotland to see whether something can be done, even at this late stage, to satisfy the relatives’ concerns. It is important that we are seen to be fair to these two men, who were prepared to fight, and ultimately to give their lives, on behalf of the United Kingdom. We should give some explanation to their relatives.

I would like to return to some of the provisions of the order. It says:

“The territorial extent of this instrument is the United Kingdom, the Isle of Man and the British Overseas Territories except Gibraltar”.

Why is Gibraltar excluded? Our soldiers, sailors and airmen presumably serve there. They may be covered by some Gibraltar legislation, but it is important to know why Gibraltar is excluded from the order. I think that is my only question.