Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 140 - 159)



  140. Would it be impossible to adjust it in current practice?
  (Mr Miller) I do not think it would be impossible but it seems a pity to lose an opportunity to deal with an area where individual servicemen may well be treated differently because they come from a different Service.

  141. It happens elsewhere.
  (Mr Miller) It happens elsewhere. I cannot deal with all of those until we bring in the new tri-Service Bill.

  142. You cannot deal with this for us to properly scrutinise it. We are very cautious here about allowing the Secretary of State to have this type of power, which means they can bring what they want to bring in. It seems to me there is not a viable reason why this has not been done in this case. You can bring what you want in five years' time. You have already worked on half of it, what is a little bit more than a five year deadline?
  (Mr Miller) We have to have regulations ready at the point at which we implement the clause. I can do no more than note the concern expressed by the Committee, which we will need to consider.

  Chairman: I think there is considerable concern. We can certainly appreciate the concerns of commanding officers, that in different Services different practices prevail and they want some legislative underpinning of that. There is an aim to try and develop just one way of, perhaps, dealing with such matters. I think the Committee feels that given this has been developing clearly over some time why is it not possible to be far more specific about, perhaps, the existing practices, and say, "It is being reviewed but this is how it stands in law at the moment", rather than introduce a clause which gives us no specific detail at all but leaves it entirely to the Secretary of State to make such regulations as he thinks necessary. I think this is one where we will consider it further.

Mr Key

  143. For the record, on what date do the three existing Acts expire?
  (Mr Miller) The consensus is it is 31 December this year.

  144. Will these regulations, which are going to come in with the new Act, have to be in place by 31 December, or because they are regulations at the discretion of the Secretary of State could they be brought in in a couple of years' time?
  (Mr Miller) They would have to have brought in before we could implement the clause. The target for that is 12 months from Royal Assent.
  (Mr Morrison) Clause 1 itself comes into effect immediately on Royal Assent.

  145. What is the nature of these regulations? Will they be regulations by statutory instrument, either affirmative or negative procedures, or will they be regulations promulgated by the chain of command of each Service?
  (Mr Morrison) They are regulations made by statutory instrument by negative resolution procedure.


  146. Can we move on then to Clause 13?
  (Mr Miller) Clause 13 basically reflects that part, section 113 of the Police and Criminal Evidence Act, which enables orders to be made applying parts of that Act which relate to the investigation of offences under the Service Discipline Acts. Because the various clauses in this Bill contain wider powers to apply specific parts of the Police and Criminal Evidence Act there is no need for the scope of the power under Section 113 to be as wide as it is now. This clause is to amend section 113 of the Police and Criminal Evidence Act to remove from the scope matters which are dealt with within this Bill.

  147. I know a couple of colleagues have to leave now and I will just seek Committee members' agreement that we will carry on, as time allows, to deal with Clause 16 and then seek to reconvene on Tuesday at 10.30 to then start consideration of Part III, beginning with Clause 17.
  (Mr Miller) We will, of course, make ourselves available.

  Mr Davies: I apologise, Chairman, and to our guests but both Mr Keetch and myself have business on the floor of the House.

Mr Key

  148. Clause 13, Section 3, which refers to the Secretary of State issuing one or more codes of practice. Have those codes of practice now been drawn up in anticipation of this legislation?
  (Brigadier Nugent) I can answer that partly. We have already jointly produced the first working draft of the Service Police Codes of Conduct with the aim of having it concluded, because it will not be ours to finalise, but have it concluded it by the time the Bill is passed.

  149. The other Services?
  (Brigadier Nugent) That is all three together.

  150. Thank you. I see in the notes provided by the Ministry of Defence at paragraph 49 that this section enables the Secretary of State to make orders applying with modifications. Could you explain what modifications are necessary?
  (Mr Miller) In principle these are any modifications that are needed to reflect the peculiarities of Service life. They are all familiar to us, the mobility, the possible isolation, and so forth. I do not know that we have specific—
  (Brigadier Nugent) Primarily they are really terminology. It is putting in military-speak for what is civilian-speak. The intention is really to mirror, as far as possible, what is already in the civil police codes of practice.

  151. I know that the Ministry of Defence does try to assist, for example, a court martial in applying similar provisions to a civilian action. I just wonder whether the judge's rules which, of course, in law are crucially important in civil courts, in terms of process, apply, or not, to military circumstances? There is, I believe, some contention between civilian solicitors representing servicemen at court martial and the Army Legal Service about exactly what does apply. I wonder if you can help me clarify that?
  (Air Commodore Charles) I am not aware, being an RAF officer, what the difficulties are. Certainly we do not seem to have them. The procedure in court martial is clearly set out in various sections of the relevant Service Discipline Act and the rules of evidence that apply are very much the laws of evidence that apply in the civil courts.

  152. I am thinking of the problem, this is highlighted by the Human Rights Act, the right of a serviceman or woman to independent legal advice and the problem that, of course, the Army Legal Service, with the best will in the world, is not perceived to be free of the chain of command, whereas civilian solicitors are. There are very practical problems about who pays if there is a civilian solicitor being employed. I wonder if that is covered under this clause?
  (Air Commodore Charles) The first point I can make is the Army Legal Service do not represent soldiers. Because of the independence point you mentioned a soldier has the option of asking for a Royal Air Force legal officer to represent him at any police interview there may be or, indeed, at a trial, but an RAF officer comes from a different chain of command and is not subject to any influence by the Army authorities. Certainly we take the view that we have sufficient independence to do the job and do the job well.

  153. I do not doubt that.
  (Mr Miller) This clause does not deal with the particular point that you raise. If it is a point which the Committee wish to explore, I will come back to that. There certainly are circumstances where an individual soldier may appoint a solicitor.

  154. I am just concerned about the codes of practice which are going to be very, very important. What we decide here is what happens out there for individual servicemen and women.
  (Mr Miller) The codes of practice which would arise out of this clause are directed to the powers given in the earlier part of the Bill.

  Mr Key: Right. Thank you.


  155. Can we move on to Clause 14?
  (Mr Miller) Clause 14 makes it lawful for a person to use reasonable force in exercising any of the powers contained in Part II of the Bill. This reflects the practice under civilian law.

  156. Thank you. We will move on to Clause 15.
  (Mr Miller) Clause 15 arises because obviously with the introduction of a system requiring warrants to search certain areas it is important to make clear precisely what those areas are. It is also necessary to ensure that in the definition set out there a distinction is made between accommodation which may only be searched by Service police and accommodation which may be searched on the commanding officer's authority, by a person other than Service police. The first part of the definition refers to Service accommodation for the particular use of an individual, such as an individual and his family. This will cover family quarters or a single room in a barrack block, but not a barrack dormitory. The rest of the definition deals with shared sleeping accommodation and personal lockers. Even in communal arrangements like those on board ship or in operations where accommodation is shared every person is regarded as having private space of some sort and a warrant would be needed to search that. Similarly, the limited powers which a subsequent clause gives to commanding officers would only be exercised in such accommodation. Also, it makes clear that in any area where a person is being held in custody, detention or imprisonment that is excluded from Service Living Accommodation. You do not need a warrant to search a prisoner's cell.

  Chairman: Thank you. This is an area we already touched on this morning. Are there any further points or questions?

Mr Randall

  157. Presumably this does not apply to private accommodation that is occupied by servicemen or service women?
  (Mr Miller) Yes, it would.

  158. It does?
  (Mr Miller) If a serviceman or women is occupying private accommodation then the—
  (Mr Morrison) That is not under this definition, it is under a wider definition.

  159. It is not here. It provides for the excluded. There is not really a conflict? There would not be a conflict where you have a mixed estate of private and Service accommodation on the same side, that would not be a problem?
  (Mr Miller) I cannot see it would be a problem, no.

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