Examination of Witnesses (Questions 20
THURSDAY 18 JANUARY 2001
20. Was there a particular moment when the work
on the consolidation was actually stopped? Was there actually
an instruction or did it just disappear into the ether and someone
said, "We will play that one out while we think what we are
going to do with this tri-Service one"? Was there an actual
instruction on that or has it just evolved naturally into this
(Mr Miller) I think it is probably fair to say, like
most of these things, it evolved. It is very difficult to pin
down the exact moment where one might say the light dawned. If
one wanted to identify a particular moment, I think it would have
to be the point at which we set up a team to scope the potential
Tri-Service Bill, but obviously that did not happen until after
we had decided that was the way to go forward.
21. When you set up this team to look at the
Tri-Service Bill, by then you had already stopped working on the
previous concept of consolidation?
(Mr Miller) At that point there was no work going
on on consolidation. That is right.
22. At what date did you start the tri-Service
(Mr Miller) The tri-Service team was set up last year.
(Mr Woodhead) The tri-Service team was set up in October
2000, there having been an announcement earlier in the year by
Mr Spellar a Tri-Service Act had been decided as the way ahead
for Armed Forces legislation.
23. When was that announcement?
(Mr Woodhead) In May 2000.
24. So you took six months to respond to that
ministerial decision and begin to set up a team to handle the
job, is that right?
(Mr Woodhead) We were doing preparatory work for the
establishment of the team before the team was set up.
(Mr Miller) I think it would be fair to say that Mr
Woodhead's team, which was in existence at that point, was doing
some work. It took approximately six months to identify the individuals
one wanted to get in and actually get them posted in.
25. It is a good thing you are not in private
business, Mr Miller, is it not?
(Mr Miller) I accept that is a long time but, equally,
individuals are entitled to a certain amount of notice before
they are moved.
26. I wonder if it is possible to widen this
discussion just slightly? I am very appreciative of all that Mr
Miller is saying to us but I would like to hear from our Service
people and their thoughts with regard to this, their beliefs about
whether this is too slow, whether there are problems and what
they see at this stage the future problems could be in achieving
an effective piece of legislation? This is a very complex piece
of legislation we are looking to achieve and I would appreciate
it if we could widen it slightly. Is that possible?
(Mr Miller) Obviously I am in the Committee's hands,
if you wish to ask the Service members, but the essential judgment
as to what we can achieve in the Bill itself rests with me, my
staff and the legal adviser. The Services' concern clearly is
to protect the interests of the individual Services which they
27. I accept there has to be a central control
and I accept that is exactly how you are describing it, but it
would be very valuable for us to hear in a slightly wider context
why there could be a slowness, what the appropriateness of that
slowness is. We want to get this right and it is important for
many of us who do not serve to understand what those problems
could be. That is why I have asked the question this morning.
(Mr Miller) Of course. As the RAF lawyer perhaps Air
Commodore Charles could answer.
(Air Commodore Charles) I think the first point I
would like to make is that last year we were very much focused,
certainly in my Service, on the Armed Forces Discipline Act and
the new procedures which had to be brought in. There was a considerable
amount of work to do on that but we have always taken the view,
as the evolution of joint organisations has continued apace, that
some form of tri-Service disciplinary system was required. It
is a very large task and we do not under-estimate that and it
is very important to us to get it absolutely right, and there
is certainly no perception from my Service it is taking longer
than it should. We want to get it absolutely right and we take
the view that the next quinquennial review will be the time.
(Commodore Bryant) I must stress that I am not a lawyer
but I am in charge of naval discipline, which is slightly different.
From an operational perspective I would echo what Mr Miller has
said, we do not see any operational problems which have arisen
so far. As we move more and more towards joint operations, it
is becoming obvious that not only in this but a lot of other areas
of personnel administration we must move towards greater harmonisation.
On the other hand, we must get it absolutely right, but we have
no difficulty with the five year timescale we are talking about.
(Brigadier Nugent) I think there are people in the
Army who are perhaps better qualified than I to speak, however
as they are not at the table, I will. In general I think they
welcome the work that is going ahead. All matters in the Service
Discipline Act are complex and therefore they, like our other
colleagues, require us to get it right and therefore too hasty
decisions would not be welcome. The key to all of this is the
aim and the purpose of it all is to get operational effectiveness
and we are keen to make sure what we get assists us in our operational
Ms Taylor: That steer has been very valuable
28. Operational effectiveness needs clarity
and I wonder if we could pin that down a bit more. I am quite
sure that some of the historical events we have been lead through
might be of some use to the Committee but I am wondering if you
could make it clear to me anywayother members may already
be clearas to what are the main advantages of a Tri-Service
Act over the separate Acts we have now and the Consolidation Act?
What are the main advantages we are looking for?
(Mr Miller) A Tri-Service Act will mean that the approach
of all three Services is identical. We will not be forced as we
are now, very often, to produce three sets of regulations, or
three changes, whenever we make any alteration particularly in
the disciplinary area, but it also applies to those parts of our
administrative work which are covered by statute. That I think
is the prime advantage. The advantages are really administrative
rather than operational.
29. Why is that different from a Consolidation
(Mr Miller) Because consolidation would still preserve
the essential three Service systems, and particularly with the
Navy, the Navy system is very different. Consolidation would merely
bring all of the legislation into one place, what we are trying
to do with the Tri-Service Act is to produce a single, over-arching
piece of legislation which applies equally to all three Services.
30. You are quite satisfied this can be done
in the timescale you have outlined?
(Mr Miller) I expect to be able to deliver in time
to meet the Minister's undertaking.
31. Can I ask about the time aspect? Five years
is a long time, can you give us some idea of why it takes five
years? I am talking about the thought-process which has to be
gone into to decide on that period of time. Secondly, how many
resources have been put into it? You have already said you had
a team of two which is now down to a team of one, is that going
to affect the delivery? Have you got plans for bringing more staff
in if indeed you find you are not keeping to the schedule you
(Mr Miller) Five years is the timescale essentially
because that is the period between the Service Discipline Bills
and, frankly, we are thinking in terms of fitting what we do into
the existing schedule. On staffing, I am quite sure I will need
and will get a significant enhancement of staff. I expect to start
building the team up later this year, and clearly if the work
does not move according to plan then I would aim to increase even
on that level.
32. So it could well be the Bill could be ready
well before that five years but will not be introduced before
(Mr Miller) I suspect we will pace our work and indeed
the level of resources we put in to deliver the Bill in the five
year timescale because that is what we are working to, but if
there became imperatives towards a shorter period then we would
obviously have to see what we could do to meet that.
33. Looking to the future, we all recognise
that the way in which the Services are deployed has changed very
much in recent years and will continue to change. Not only will
there be more purple operations but there will be more operations
with other nations in third countries, so the legal aspects of
these operations get more complicated, not least because we have
to accept the realities of the Human Rights Act. I was very struck
by evidence produced in the Defence Committee's Report into The
Draft Visiting Forces and International Headquarters (Application
of Law (Amendment)) Order 1998, where a Ministry of Defence official,
Mr Pollard, was questioned by Mr Cohen, and the question at 27
was, "If a foreign soldier injures, rapes or kills a British
citizen within an exercise area which has been designated to that
foreign force, what would the legality be then?" The reply
was, "Any such incident involving a British national would
fall under British jurisdiction and in this case the jurisdiction
of the civil police. At least, I imagine this is the case."
This was rather the tone of the discussion. It is actually crucially
important that there is clarity and certainty. Will the new Tri-Service
Act also be looking at the basis of the international arrangements
based on the 1951 NATO Status of Forces Agreement, or the 1952
Visiting Forces Act or, for that matter, the Visiting Forces British
Commonwealth Act of 1933, or the 1949 Wireless and Telegraphy
Act? Because if we are doing this huge tidying-up operation and
we are bringing the legislation for the three Services together
and we are talking about operating in an increasingly international
environment, would it not make sense at the same time to sweep
all those different Acts into a single Act because of the operational
commitments of Her Majesty's Forces?
(Mr Miller) I do not at this point know what recommendations
the scoping study will make. Having said that, I would think it
is unlikely we would want to spread the boundaries quite so wide
as that, because clearly I would like to have a potential Bill
that I have some chance of completing within the five year timescale.
Unless there are strong reasons for making changes in that area,
and I am certainly not conscious of them as I understand at the
moment, I think we would probably pitch the Tri-Service Bill at
around about the area of the coverage of the three separate single
Service Bills at the moment.
34. Can Mr Miller just confirm that when the
Services are in theatre these issues are agreed at the United
Nations that for a particular operation, if it is under the auspices
of the United Nations, the legal frameworks, the right for British
Forces, for example, to do their job in Kosovo, is agreed by the
United Nations and everyone who is a commanding officer in any
of the Services goes into those circumstances with a bit of a
wing and a prayer about the legal consequences? I well recall
visiting Kosovo a couple of years ago, shortly after the conflict,
and I was amazed at the astonishingly professional way in which
the Royal Military Police were in effect enforcing a law, they
did not quite know whose law but it was somebody's law and orderstress
on the orderbut they had no legal basis for doing so other
than what they believed had been sorted out at the United Nations.
I am thinking therefore of our forces at the sharp end, on operations,
being challenged by the legality of what they are doing. That
is why I mention this, so I do hope that these factors will be
considered carefully in the scoping study.
(Mr Miller) These factors will be considered seriously,
yes, but in terms of the procedures which are followed, you are
taking me a bit outside my own remit. Like yourself, I am conscious
from having visited Kosovo that there were agreements in place
there in relation to the legal aspects and I would imagine that
that is the practice that is followed generally. If it is the
Committee's wish, obviously I can produce more detail but this
is not my own field.
Chairman: It is certainly an area where
we are keen to hear directly from Armed Services personnel in
the front line, what their experience has been, and I know from
my own contact about some of the difficulties that can arise in
multinational operations in terms of discipline. I have two more
members of the Committee wishing to come in and although I am
aware this is a very important item can we then try and move on
to the next clause?
35. Two very quick questions. The Air Commodore
mentioned the Armed Forces Discipline Act last year and some of
us around this table were involved in that. Given that is going
on the statute book, assuming this is going on the statute book,
and knowing what you know about what might be coming down the
line from other areas, is it your opinion that you will need to
bring in more Bills before Parliament in the course of the next
five years on disciplinary measuresmaybe to tie up with
human rights legislation or whateveror do you think that
now the Discipline Act is there, and assuming this is passed,
we can have a period of stability for another five years?
(Mr Miller) We think we have pinned down all the areas
which need urgent attention but, as you will be aware, there is
an enabling clause in the draft Bill which would enable us to
make certain changes in certain areas by regulation. That was
put in quite deliberately to give us some scope within those defined
areas to proceed without having to come back to the House for
further primary legislation.
36. There are suggestions which have been made
in the House that the Forces are going to have constant changes
in legislation in order to keep up with human rights changes,
but you do not foresee that happening?
(Mr Miller) I do not think we see it quite like that
but clearly a lot is going on and we would like the facility to
make some change in between the main Bills.
37. My last point refers to what I said earlier,
there is no suggestion that you have, or the other people in front
of us have, that either the Act last year or the imposition of
this Act will in any way dent our operational capability? No suggestion
that legislation on these issueshuman rights issuesis
somehow denting our capability, no suggestion of that at all?
(Mr Miller) There is no suggestion of that at all
and indeed in working out how we will apply these things we have
been very careful to consider the impact on operational capability
and ensure that is not an issue which arises.
Mr Keetch: For the record, I can see
the uniformed servicemen nodding at that point.
38. The benefit of the Tri-Service Act will
be to improve military effectiveness?
(Mr Miller) In the sense they make the administration
39. That is obviously a benefit. Therefore,
assuming that the appropriate legislation was correctly drafted,
the sooner it is brought in the better? It would be welcomed if
it was in earlier?
(Mr Miller) Yes, broadly speaking.