Examination of Witnesses (Questions 1
THURSDAY 18 JANUARY 2001
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.
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
(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.
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
(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
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.
Mr Key: Thank you.
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?
(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
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
(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.
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 Ministersto 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.
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
(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