Examination of Witnesses (Questions 140
THURSDAY 18 JANUARY 2001
140. Would it be impossible to adjust it in
(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
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.
143. For the record, on what date do the three
existing Acts expire?
(Mr Miller) The consensus is it is 31 December this
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.
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
(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
(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
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
Chairman: Thank you. This is an area
we already touched on this morning. Are there any further points
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.