Lord Garden: My Lords, I thank the noble Lord, Lord Campbell of Alloway, for the opportunity that this debate again gives us to consider the legal pressures under which our military have to operate. The requirement to carry out military operations within the bounds of national and international law is not new. We have covered aspects of this topic in a number of exchanges over the past year in your Lordships' House, most particularly in the debate on the chain of command on 14 July 2005. In that debate, the importance of the issue was reinforced by every noble and gallant Lord who spoke of his concerns. Yet nothing that I heard in that debate, or have seen subsequently, has changed the view that I took then: if we are to use our Armed Forces as a force for good, we must ensure that they operate at all times within the law. That means that we need a process to investigate allegations that the law has been broken and, if sufficient evidence of wrongdoing is found, due process must follow.

We are debating this issue during a bad week for public perception of the British Army. I do not intend to comment on the particular case, but it underlines the importance of a reliable legal process to investigate such allegations.

On the narrow question that is the subject of this debate, I have read the uncorrected evidence given to the Armed Force Bill Committee in the other place on 26 January 2006 by the Judge Advocate General and the three service prosecuting authorities. Major General David Howell, the current Army Prosecuting Authority, was asked directly by the committee about his relationship with the Attorney-General. He said—and I quote from the uncorrected evidence:

• "We take the view that he has the right to be consulted on major cases. We certainly do not give to him or even draw his attention to every case. We have had 1,100 cases over the past few years, and that would be manifestly absurd. We do consult him on major cases. One matter I must make absolutely clear, and I am sure this goes for my two colleagues as well, we have to accept that the final decision on whether to Court Martial someone ultimately is our decision; it is not the Attorney's or anybody else's".

He went on to say:
• "There has been no suggestion from anyone that either me or the leading counsel involved should take decisions for political or any other reason".

When pressed as to whether the Attorney-General,
• "could refer back to you and say, in his role as superintendent, you did not refer this one to me, but you should have done",

the General said:

• "He could criticise me if he felt that I had not consulted him properly as I should have done but I do not believe that has happened so far".

The transcript from the subsequent session of that committee on 9 February 2006 makes it clear that General Sir Michael Jackson, the Chief of the General Staff, strongly endorses the comments made by Major General Howell. These Benches welcome those assurances and do not question them for a moment. The procedures seem entirely appropriate and appear to have been operated correctly.
I lack the legal expertise of many noble Lords who will speak in the debate, but I know that the military are very conscious of the rules and of the result if they break them. Later this year we shall debate the Armed Forces Bill, which the committee discussed, which will bring together the three service discipline Acts. That Bill is a salutary reminder of the legal framework by which the military are constrained. We expect a great deal from our Armed Forces, not just a sense of duty which extends to risking their lives in the service of the country, but we place extra legal restrictions on their actions which civilians do not have. That puts on us, as legislators, an extra onus and on the Government, as employers, an extra burden towards every individual in the Armed Forces. We expect them to respect the rule of law, but we had better be sure that we do all in our power to ensure that they have just treatment, and it is seen to be just, when they face allegations against themselves.
That means that we must not stint on the resources that we allocate to investigating complaints. The Military Police, like all parts of the services, suffer from overstretch. It is a specialist activity, which is being much used. I heard the suggestions from the noble Lord, Lord Moonie, about places that one might look, although such resources are fairly few and far between. We must have enough investigation resources to provide a speedy response in order to decide whether there is a case to answer. Justice means understanding the operational circumstances under which alleged offences have taken place. When we look at the Armed Forces Bill, the question of ensuring that the military chain of command is safeguarded will almost certainly arise, and we shall support amendments which ensure that that principle is maintained. There have been administrative problems which have led to delays, and we have discussed the Trooper Williams case, again raised by the noble Lord, Lord Campbell. There has been a lack of duty of care. But these mistakes happen, and we should not throw away procedures because of errors of implementation. We need to learn from those mistakes. We need to know that the Ministry of Defence is learning from those mistakes and that, even in these financially straitened times, the necessary resources will be made available to correct problems in the delivery of justice.

There is one other aspect which I would wish to raise, given that we have the noble and learned Lord the Attorney-General to answer this debate on a military topic. I am sure he would agree it is important that individual service men and women are always clear on what their rules of engagement are. Indeed, the noble Lord, Lord Moonie, talked about the need for robust and clear rules of engagement. Unlike civilians, the laws that affect servicemen can change depending on the nature of the task. On a humanitarian relief operation, say after an earthquake, they are not expected to use lethal force. On an operation in support of a civil power, they will be working broadly to the same rules as the civil security forces. But in a more old-fashioned fighting conflict, they are authorised to use lethal force within the laws of war. These distinctions are important and are translated into direct instructions to each service man and woman. We heard from the noble Earl, Lord Attlee, in the debate on 12 May 2004, that he received no training on the rules of engagement when he deployed on Op TELIC.

Earl Attlee: My Lords, it was negligible training.

Lord Garden: My Lords, I stand corrected—negligible training. I raise this because we are about to deploy on a complex operation in Afghanistan.
There are currently two entirely different military operations taking place in Afghanistan. One is a fighting war under US command as part of offensive operations with Operation Enduring Freedom. The second is the NATO operation providing support to the Afghan Government in their role of stabilisation and reconstruction. United Kingdom forces are currently involved in both operations, although I believe that only the Harrier force is currently undertaking tasks that are responsible to both commands on different missions.

However, the Statement, relayed by the noble Lord, Lord Drayson, on 26 January 2006 to your Lordships' House, explains that there will be a transition process for the new commitment of UK forces to Afghanistan. He said:

• "In terms of command and control, to begin with, the multinational brigade will come under the coalition. This is a necessary transitional measure".

He went on to say:
• "I therefore anticipate that later this year, at the earliest opportunity, ISAF will take control of the forces in the south, during our command of ISAF".—[Official Report, 26/01/06; col. 1321.]

ISAF is part of NATO.

We are therefore sending our troops initially to work under direct US coalition control, working to an offensive operation task, before they become a supporting NATO force for the Afghan Government. I think that the noble and learned Lord the Attorney-General will want to ensure that the rules of engagement are clear to every soldier, sailor or airman who might find himself having to defend his actions subsequently in this very complex command situation.
I believe that we have a military of which we can justifiably be very proud. Like every group, there will be those who break the law. We have a system to bring them to justice, and the fact that we do speaks well for the probity, integrity and reliability of our services. We must make sure that we in return give them the duty of care which is their due. There will also be times, perhaps more often than in normal peacetime circumstances, when military personnel will be falsely accused. It is important that we have a proven and reliable system, which can then clear those who face such false allegations. In sum, we are content from these Benches that the system is right, but we worry that it suffers from resource problems.