Armed Forces (Court Martial) (Amendment No. 2) Rules 2024

Considered in Grand Committee

17:08:00

Moved by

That the Grand Committee do consider the Armed Forces (Court Martial) (Amendment No. 2) Rules 2024.

My Lords, this statutory instrument amends the Armed Forces (Court Martial) Rules 2009 by changing the rank requirements for the president of a court martial board where the defendant is a very senior officer. Before I set out the changes that this statutory instrument will make, it may be useful to the Committee for me to provide some context regarding the role of the court martial board in the service justice system. The UK’s separate system of military justice dates back to the Bill of Rights 1689. Having a separate service justice system enables the comprehensive system of command and discipline on which operational effectiveness is based to be enforced swiftly and efficiently. The service justice system reflects the need to maintain discipline through the sentences which can be imposed by the commanding officer at summary hearings, or in the court martial for more serious offences. The average number of courts martial a year is just over 400. The constitution of the court martial for trial proceedings comprises the judge advocate and a board of lay members. Depending on the offence or offences being tried, the board will consist of three to six lay members. Their role is similar, but not identical, to that of a jury in the Crown Court in England and Wales, as they are solely responsible for deciding the guilt or innocence of a defendant at contested trial proceedings, based on the evidence presented to them. The constitution of a court martial board depends on whether the defendant is a serviceperson, ex-serviceperson or civilian. Where the defendant is a civilian and not an ex-serviceperson, the proceedings are usually placed before an entirely civilian board, unless there are exceptional circumstances that justify a mixed or service board. Where the defendant is an ex-serviceperson, the court may consist of either civilian lay members or service lay members or be a mixed board in each situation. The constitution of the court martial will be assessed on a case-by-case basis. At the sentencing stage, unless the trial was conducted wholly with a civilian board, where the judge advocate would sentence alone, the role of the lay member differs significantly from that of a jury in the Crown Court, as each lay member and the judge advocate has a vote on sentence, although in the event of a tie the judge advocate has a casting vote. When some or all of the members of the court martial board are service personnel, the president of the board is the senior officer. The role of the president includes that of the foreperson of a jury. They will chair the discussions during deliberations on the verdicts and ensure that all members have an equal voice and one vote. They also have additional functions, which include protecting the integrity of the deliberative process by ensuring compliance by all members with the court martial guidance issued by the Judge Advocate-General and the Military Court Service director. However, it is important to note that, despite the title of the president of the board, the judge advocate presides over the court. An overriding principle is that the constitution of the court should be fair, with lay members drawn at random from the widest potential pool. Crucially, this includes the deconfliction process to identify whether any member knows another member, a defendant or a witness, or has served in the same unit as the defendant since the date of the alleged offence. A recent case highlighted a risk to this overriding principle of fairness. The court administration unit initially encountered difficulties in finding a president and a board to try a case where the defendant was a major general. As a senior officer, he was obviously well known, and his potential character witnesses included serving and retired OF-9 grade officers who were also known to many in the pool of potential board members. By the time of the trial, however, the defendant had left the Army, so the use of civilians as members of the board was permitted. Nevertheless, that would not have been possible in law had the defendant still been serving. Although cases involving defendants who are very senior officers is rare in the UK—this was the first OF-7 officer to be tried in approximately 200 years—it is sensible for the service justice system to be ready and able to deal with these cases if and when they occur. This statutory instrument addresses this issue by amending Rule 34 of the 2009 court martial rules, which sets out the requirements for the president of the board. Currently, Rule 34 requires that, where the defendant is of rank OF-6—that is, a commodore, a brigadier or an air commodore—or above, the president of the board must be of a superior rank to the defendant. That can include the president holding the same rank as the defendant if the president is more senior to the defendant within that rank.

17:15:00

The statutory instrument before us changes this requirement and broadens the pool of potential presidents so that, where the defendant is the rank of officer six or above, to prevent a conflict of interest, a more junior officer with a minimum rank of officer six can act as the president of the board. We will put policy in place to ensure that, wherever possible, the president of the board will be the highest appropriate ranking officer available.

This is a small change to the constitution of the court martial, but it is important and sensible. It will ensure that, where the defendant in the court martial is a very senior officer, it will always be possible to select a president of the board with the appropriate seniority for the important duties and functions of that role. With that explanation, I beg to move.

My Lords, I thank the Minister for his clear and comprehensive introduction to this statutory instrument, which makes, as he said, a small change to the existing system. However, the fact that this statutory instrument comes before your Lordships’ Committee today provokes me to rise with a single question for the Minister: does not the fact that this small change is being brought here today mean that the Government are prepared to look at bigger changes in future and are looking at the entire system of military justice? I ask that specific question because, earlier today, I was at an event with the Child Rights International Network, the Centre for Military Justice and Salute Her UK. The Child Rights International Network was expressing great concern about events at the Army Foundation College and the level of offences, particularly sexual offences, there. More broadly, there was a sense at the meeting that the service complaints and justice systems in the military are broken; that units are marking their own homework; and that there are serious problems with the investigation of rape and sexual assault cases, as well as with the experiences of black and racially minoritised personnel. I have no objection to the statutory instrument before us but, at that meeting, something was said that I found very disturbing. A representative of female personnel serving in the military and veterans said that they felt as though they had gone back to 2015 in terms of the attitude of military justice, particularly towards female victims of potential abuses in the military. Can the Minister assure me that the Government are prepared to, and will, look much more broadly at the whole system?

My Lords, when we get to questions of military justice, I normally rely on my good friend, my noble friend Lord Thomas of Gresford, to speak on these matters because he is far more expert than me. So, I am grateful that the Minister gave us the background to this case. Like the noble Baroness, Lady Bennett, I suggest that we accept this amendment as it stands, clearly, but I have a couple of questions, one of which is quite close to the question asked by the noble Baroness, Lady Bennett. Is there a danger that officers of a certain rank will feel unable to act as robustly as they might otherwise do if the officer at the court martial is senior to them? There is a real question around whether service justice is doing what it needs to do. Clearly, the person facing the court martial needs to be treated fairly, but the Armed Forces still have questions to answer. If we look back to the Atherton report in the previous Parliament, when Sarah Atherton serving personnel and former personnel to come and give evidence—very much with the support of the noble Baroness, Lady Goldie—we see that that was important. If courts martial are being populated by serving personnel, will people feel that they can really act as judge and jury in the way they need to be able to do? I have another related question. It is noted, in the Explanatory Notes, that part of the issue is a lack of senior officers. As His Majesty’s Armed Forces shrink—the size of the Army, in particular, has shrunk—will the problem get worse rather than better? Do we need to think about how to reform military justice, in a wider sense, to ensure that the best practices are in place?

My Lords, the Armed Forces (Court Martial) (Amendment No. 2) Rules 2024 aim to address challenges in forming court martial boards when senior officers are involved. A court martial consists of a judge and a board of military personnel, similar to a jury in civilian courts. The board determines the innocence or guilt of the defendant and, if they are convicted, assists the judge in deciding the sentence. Currently, at least one lay member of the board must be an officer who is qualified to be the president of the board, and this president must rank higher than the defendant—particularly when the defendant holds lower ranks. However, in cases where a senior officer is being prosecuted, it may be difficult to find a suitable president who is not personally acquainted with the defendant. Although these cases are rare, the Government have recognised the importance of ensuring that the service justice system is equipped to handle such situations as and when they arise. This instrument aims to modify these rules to extend the pool of eligible officers who can serve as president, particularly when the defendant may hold a senior rank, such as OF 6 or higher. The primary purpose of this statutory instrument is to improve the flexibility and functionality of the court martial system, particularly in cases involving senior officers. By allowing officers of at least rank OF 6—such as a commodore, brigadier or air commodore—to serve as president when the defendant holds the same rank, this amendment addresses the challenges of forming a court martial board for high-ranking individuals. Currently, one of the main obstacles when prosecuting senior officers is finding a qualified president who is not personally acquainted with the defendant. In rare cases, the existing requirement that the president must be a higher rank than the defendant, particularly in cases involving senior officers, has proven difficult due to limited personnel who meet the criteria and do not have prior relationships with the defendant. This amendment provides greater flexibility in the composition of the court martial board and ensures that it remains capable of fulfilling its role in these uncommon but crucial cases. The change also seeks to ensure the court martial system’s adaptability, particularly given the evolving nature of military justice. Although such high-profile cases involving senior officers are rare, it is essential that the service justice system is prepared to handle them effectively as and when they arise. By allowing a broader pool of officers to serve as president, the amendment reduces the potential for delays and disruptions, ensuring that justice can be administered without unnecessary obstacles. This amendment applies across the UK, the Isle of Man and the British Overseas Territories—except Gibraltar—thus ensuring its relevance and consistency under service law, regardless of where the personnel involved are stationed. While this amendment is largely viewed as a practical and necessary update to the rules, several important questions remain regarding its broader implications. First, how has the Minister assessed the potential impact of this change on the impartiality of court martial boards, especially in cases involving senior officers with extensive personal or professional connections to the board members? Secondly, what specific measures will be put in place to ensure transparency, avoid conflicts of interest when selecting presidents for cases involving high-ranking officers and ensure the integrity of the trial process? In considering this amendment, how does the Minister plan to address the potential for further systemic reforms in the service justice system, particularly with the upcoming Armed Forces Commissioner Bill?

My Lords, I thank the noble Baronesses, Lady Bennett and Lady Smith, and the noble Earl, Lord Effingham, for their contributions and general support for the change that we are making. I have a couple of points. With respect to the noble Baroness, Lady Bennett, I agree with one thing and fundamentally disagree with another, as she probably expected. This usually happens in our dialogue, but we get on well—up to a point. There is disagreement on her first point, but no disagreement on the need for fairness in the way the service justice system operates. We have seen, as the noble Baroness, Lady Smith, pointed out, the various reviews that have taken place and the changes that need to occur. I will deal with this before I come to the point from the noble Baroness, Lady Bennett, on which I slightly take issue. She knows that serious offences such as murder, manslaughter and rape should be dealt with in the civilian justice system. There has been discussion about that. With respect to that proposal, the MoD is considering the current model of concurrent jurisdiction between the civilian and service justice systems for serious offences such as rape. That specifically answers those points about serious offences that the noble Baroness made; there is ongoing discussion and thought being given to how that may or may not be taken forward. There is a debate about 16 and 17 year-olds being able to join the military. Let me say where the Government and a large number of people stand on this. It is common to call them “child soldiers”, but the noble Baroness knows that 16 and 17 year-olds are not allowed into conflict. That is the case. With respect to Harrogate, she also knows that some cases have been documented and dealt with, and should there be any cases of bullying or inappropriate behaviour, they will always be dealt with as it is unacceptable. The Army thinks that; we all think that that is totally unacceptable. I fundamentally disagree with the noble Baroness—this is my opinion, and many will take issue with this both within and between parties—on her point about 16 and 17 year-olds. I have been to Harrogate, as I think the noble Baroness has. She has not. I thought she has, and I apologise. Places such as Harrogate and others, but mainly Harrogate, give 16 and 17 year-olds, many of whom are from the most difficult circumstances, an opportunity that would not be available to many of them. I am not defending any bullying or inappropriate behaviour, but the only way that some 16 and 17 year-olds from some of the most difficult and challenging circumstances have ever got anywhere is because of the training, discipline and structure that were given to them when they were 16 and 17 years old. That is not everybody’s view. Some people fundamentally disagree with it, but I will argue that with people time and time again. That is a really important point. The noble Baroness disagrees. This is a clash of view and of opinion that may—to go on a little about this—be worth a debate in the Chamber, Moses Room or wherever because it is fundamental. The Government, many of us and I stand firmly behind the principle of giving opportunity to 16 and 17 year-olds through the military in an appropriate way. Therefore, I would be pleased to lead a debate on behalf of those who think that we should take this forward. Notwithstanding that, one out of two points is not too bad. These are serious points: there was the point about the service justice system and the changes that may or may not be needed, and we have our differences on Harrogate.

17:30:00

The noble Baroness, Lady Smith, made points about the Atherton review and various other things we are trying to take forward. On equivalence of rank, we will always try to find a way of ensuring that a more senior or experienced officer is able to become president of the board—essentially, the chair of the panel—notwithstanding the fact that the judge advocate is always a civilian judge. The president of the board will always be someone of high rank, where possible. The amendment, which I know she supports, simply tries to extend the pool of available officers. We have every confidence that in the context of that panel, with the support of the judge advocate and its other lay members, there will be no intimidation from somebody of a senior rank when the president of the board is of a more junior rank. She will know that, although the change is being made, it cannot go below the rank of officer rank 6, which is essentially brigadier, air commodore and the equivalent rank in the Navy. It can go down to that—for want of a better way of putting it—but it cannot go below. The Committee can be reassured about that.

I think that deals with the impartiality point made by the noble Earl, Lord Effingham. Of course, it is overseen by various other boards, administrators and so on, but impartiality is always there for everyone to see in these courts-martial and boards. Apart from in sentencing, things are open and transparent. If I am wrong, I hope I will quickly be corrected, but the various deliberations of the panel, as appropriate—always a good phrase—will be published and made available. That is of particular importance. The noble Earl made a point about future reviews. As I said to the noble Baroness, Lady Bennett, there are always reviews going on to ensure that the service justice system operates in the way that it should.

There were significant changes under the previous Government, which have been continued under this one, to improve the service justice system and deal with some of the concerns raised about misogyny, sexism and racism. Many of those have been dealt with internally in the service justice system. Those reviews and considerations continue. This SI makes a simple but important amendment that will help with procedures going forward. A problem was identified, and the amendment seeks to address it. As such, I hope the Committee will support it.

Motion agreed.