Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)




  1. Can I say good morning to you and give you all a very warm welcome and thank you very much indeed for coming along this morning at I know very short notice by the Committee, but as you will have gathered we are very keen and eager to proceed and also to seek your views and advice to help us clarify in our own minds what further and particular evidence and activity this Committee needs to undertake to ensure a very full review of the necessary legislation. Can I ask Mr Barry Miller, who is the Director-General, Service Personnel Policy if you would care to introduce us to your fellow members?

  (Mr Miller) Thank you, Madam Chairman, yes, of course. We have tried to gather a group which will give you the experts on the subjects which you are likely to ask questions on. On my left is Mr Morrison, who is from the Legal Adviser's staff. On his left is Mr Woodhead, who is the head of my team actually steering the Bill through from the departmental point of view. On the extreme left, Brigadier Nugent, who is the Provost Marshal (Army). On my right is Commodore Barry Bryant, who is the Director of Naval Service Conditions. On his right, Air Commodore Charles, Deputy Director of Legal Services, Royal Air Force.

  Chairman: Thank you very much indeed for that. Can I suggest that we go through the Bill clause by clause and that for each clause a member of your team gives us a brief introduction and then it will be open to the Committee to come in and raise various points and questions with you.

Mr Key

  2. Chairman, it would be very helpful to the Committee if we could just know if Mr Morrison, who is a legal adviser, is in fact a Ministry of Defence official or from the Treasury Solicitor's Department or the Office of Parliamentary Counsel?
  (Mr Miller) He is from the Treasury Solicitor's Department and from that section of the Treasury Solicitor's Department which is actually bedded out with the Ministry of Defence. He is therefore the departmental legal adviser.

  3. Thank you for that. Will we be hearing from a member of the Office of Parliamentary Counsel? We did last time we did this Bill, and very significant and important evidence was given by that gentleman at the time. I wonder if there are any plans for us to have some advice from that Department?
  (Mr Miller) I have no one from there with me today, but clearly I am in the hands of the Committee in terms of who you wish to see.

  Mr Key: Let's see how it goes.


  4. Thank you for raising that and we will certainly look at following that up. Mr Miller, Clause 1?
  (Mr Miller) Clause 1, Madam Chairman, is in some senses the main part of the Bill. It is the clause which effectively extends the three Service Discipline Acts for a further period of five years. I do not really think there is a great deal which needs to be said about it, it is the primary clause in that sense.

  Chairman: I know there are certainly members of the Committee who are keen to come in on this.

Mr Key

  5. Thank you, Chairman. In the Second Reading, the Minister gave very specific and very welcome commitments about the necessary legislation being ready for the introduction as part of the five yearly Bill we expect to be introduced in the 2005-2006 session. That is Column 894 of Hansard on 9 January. I think it is crucial we spend a few minutes exploring this because not only in the last quinquennial Bill but the one before that commitments were given. I do not want to go over that ground, and I do agree with the Government's decision to abandon consolidation and instead go for a Tri-Service Act, but I do deeply question the length of time it will take to prepare this legislation and bring it through. After all, it was in the last session of this Committee that the now Secretary of State for Scotland probed the official before us, who was actually from the Office of Parliamentary Counsel, which is why I raised the issue earlier, and if I may quote Dr Reid in the special report of the Committee, page 3 at question 8, he said, "I am fascinated. It seems to me we have a shortage of lawyers, basically that is what you are saying. I have to say that when Parliament and Whitehall are mentioned the phrase `shortage of lawyers' does not spring readily to mind." Then we went on to discuss in question 9 who decided whether certain legislation should have priorities, and Dr Reid said, "The reason we cannot complete it is because it will take up two years and since you change lawyers every two years from one department to another nobody is going to get a long enough run at it. Surely to God we have the wit and the will to change bureaucratic procedures like that in order to complete a major piece of legislation or consolidation that is deemed by yourselves to be a priority?" Mr Hogarth said, "That would be correct, Sir, but the reality is that there are other projects which have to be completed at any given time. It is a question of priorities and I am not responsible for that so it is a bit difficult for me to comment." Question, "Who is responsible?" Answer, "Ultimately it would be a combination of the draftsman in charge and the Chairman of the Law Commission." Dr Reid said, "Just so I can get this correct: it does not matter what we decide, if the Chairman of the Law Commission decides it is not one of his priorities then basically the will of this Committee is flouted. Who is the Chairman of the Law Commission accountable to?" Answer, "The Lord Chancellor." Who has given this priority within the Government that the Minister is able to say, "We will have a Tri-Service Bill within five years"? Who has decided on the priority?
  (Mr Miller) It represents the policy of the Department which has been endorsed at ministerial level. Beyond that, I can only answer for the departmental planning. I am planning to honour the Minister's undertaking and to have a Tri-Service Bill ready for introduction in five years' time when the next quinquennial is due. I have work under way at the moment basically aimed at scoping that Bill, and the intention is to build up a team as soon as we reasonably can and take the work forward. At the moment we are confident we can deliver a draft Bill in the necessary timescale.

  6. I did check this morning with the Law Officers Department and it is not their responsibility, it is the Lord Chancellor's Department, and I also visited the Law Commission website and I noticed there is absolutely no mention in any of their documentation about any work for the Ministry of Defence. It lists by government department what is in their programme and it does not appear there. When it comes to how many people are going to be involved in this work, because it ultimately will be the work of the Law Commission, I assume—
  (Mr Miller) No—

  7. It will not?
  (Mr Miller) The policy work will be done in the Department. The instructions to the draftsman will be put together by our legal advisers and we expect the Bill will be drafted in the normal way. I think much of what you may have been reading from there was perhaps concerned with consolidation as we originally intended to go forward, rather than with the Tri-Service Bill which is now our intention.

  8. I am very relieved and I think it has been hugely important to clarify that. So it will be down to the Ministry of Defence to draft the Bill?
  (Mr Miller) Yes, that is our intention.[1]

  Mr Key: Thank you.

Mr Keetch

  9. I also want to come on to this point because Mr Key mentioned the previous Committee, and indeed it was a recommendation, to quote from it, "We recommend the Government ensures the necessary resources and parliamentary time are made available to allow the consolidation of Service law before the passage of the next Armed Forces Bill . . .", and indeed on page iv of the report there is reference to the 1991 Committee. It was also of course in the Strategic Defence Review and it was also a recommendation of the Select Committee of Defence. So there has been an enormous amount of parliamentary people of all sorts saying, "We want this done in some form or another" for well over ten years. You have made a commitment it will be done in the next five years, I am interested to know why it has not been done already. Was there any request either by this Government or the previous Government, because this was a previous Bill, to initiate either consolidation or the establishment of tri-Service legislation for this Bill?
  (Mr Miller) Work was done in the Department and I think in the Law Commission on consolidation. It was only as that proceeded we became conscious of the size of the task. That was one factor but a much more significant factor was that as deployment patterns changed the importance of a true Tri-Service Act emerged. That is the basis for our present policy of going forward with the idea of a Tri-Service Act.

  10. I certainly agree with the tri-Service aspect, I think that is obvious. So there has been an investigation as to whether this has been possible.
  (Mr Miller) Whether a Tri-Service Act is possible?

  11. Yes.
  (Mr Miller) Yes, we are quite sure we can produce a Tri-Service Act. As I say, I have work going on at the moment which is aimed at establishing precisely what that Act should contain.

Mr Key

  12. How many officials are working on that please?
  (Mr Miller) I have a team of two on that at the moment, of whom one is unfortunately sick. So I have a minor resource problem but nevertheless I expect to see that report within the next couple of months.


  13. Can I ask what discussions there have been with the Armed Forces themselves on the prospect of a Tri-Service Act?
  (Mr Miller) The Armed Forces were fully involved in the earlier work and are fully involved in the scoping work, which is why the central team is really quite small because we rely heavily on the expertise of the three Services.

Mr Davies

  14. This is clearly an extremely unsatisfactory situation, Mr Miller, that after ten years the Ministry still has not even got a draft Bill for us. Is this a bureaucratic failure? Is this a lackadaisical approach by the Ministry of Defence who actually do the work, or is this a ministerial failure— a failure by Ministers—to set the necessary priority on this particular project which would have enabled it to get through the bureaucratic hold-ups?
  (Mr Miller) I think it was neither. As I said, I think it was really a combination of—

  15. A combination of both?
  (Mr Miller) No, a combination of an increasing realisation of the complexity of consolidation coupled with a genuine feeling that the requirement had changed, the way in which we deploy our people was changing, all of which served to add to the importance of a true Tri-Service Act as the current way forward.

  16. So you got bogged-down in doing work on consolidation which has now been overtaken by events? You did not wake up until fairly recently to the fact that the new pattern of deployment actually made the issue of using a Tri-Service Act a great deal more urgent and serious one?
  (Mr Miller) We did a considerable amount of work on consolidation but in the light of changing circumstances we came to the conclusion we needed to go for a proper Tri-Service Act.

  17. So that was all a waste of time, was it, the work on consolidation?
  (Mr Miller) It will serve to inform quite a lot of what we need to do on the Tri-Service Act.

Mr Keetch

  18. Is it the case then that because of the greater purple operations, as they are known, it has been noted that because we have three separate Acts it is causing problems? Is there any evidence of operational difficulties currently being caused by having three Services working so closely together in the operational environment that a lack of a single Act is causing problems?
  (Mr Miller) I am not aware of any operational problems, and indeed even in the administrative area I am not aware of any problems which we cannot work round in one way or another, but there is no doubt a Tri-Service Act would considerably facilitate the administration of the Services in tri-Service situations.

  19. But that is not an operational problem?
  (Mr Miller) It is primarily an administrative problem.

1   Note by witness: In the sense that, as for other programme Bills (as opposed to consolidation Bills), the Ministry of Defence will draw up the instructions and Parliamentary Counsel, rather than the Law Commission, will draft the Bill itself. Back

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