Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 20 - 39)



Mr Randall

  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 tri-Service concept?
  (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.

Mr Davies

  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.

Ms Taylor

  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 represent.

  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 effectiveness.

  Ms Taylor: That steer has been very valuable to me.

Mr Clelland

  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 anyway—other members may already be clear—as 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 Act then?
  (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.

Mr Watts

  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 set originally?
  (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 then?
  (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.

Mr Key

  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 order—stress on the order—but 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?

Mr Keetch

  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 measures—maybe to tie up with human rights legislation or whatever—or 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 issues—human rights issues—is 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.

Mr Randall

  38. The benefit of the Tri-Service Act will be to improve military effectiveness?
  (Mr Miller) In the sense they make the administration easier, yes.

  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.

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