Examination of Witnesses (Questions 200
TUESDAY 23 JANUARY 2001
200. So there will not be very much flexibility,
in other words, for a captain of a ship as to how to deal with
a particular matter?
(Commodore Bryant) There will be discretion, but there
will be broad guidelines within which he can operate.
201. Let us take the case of drunkenness. It
does seem to me that it all depends on circumstances. You might
have a midshipman or sub-lieutenant being drunk on board ship
which is a very serious matter. Being drunk on watch is something
which could possibly disqualify someone from serving in the Navy.
Being drunk ashore, I imagine that most admirals at one time when
they were midshipmen were drunk ashore; maybe you were once drunk
ashore, I do not know. That seems to be a very different order
of situation. It may depend on what you mean by "drunk"
of course. It seems to me very difficult to capture these important
distinctions in a rigid codified document. The extent to which
you are now going to be limiting the discretion of the chain of
command you may make it much less easy to manage the Navy in the
way that traditionally and successfully it has been done.
(Mr Miller) In a sense, you are describing the very
reason why we do not want to define these things too closely.
If you take, for example, drunkenness ashore, being drunk ashore
in the vicinity of a public house is one thing; being drunk ashore,
say, during a Remembrance Service is another. They raise different
issues, which is why we have to leave the commanding officers
202. And a private party on private premises
is again quite different. For all these things that might just
be a talking-to the next morning. I am simply saying, we do not
want to reduce the flexibility. I would like your comment on all
(Commodore Bryant) You will know we have always had
these tests with regard to ratings; and we are merely transferring
them now to officers as well. The definition of "drunkenness"
has clearly been laid down for a very long time under section
28. It is basically an inability to perform any duty which he
might reasonably be called upon to perform. If he is officer of
the watch it is very different from being asleep in his bunk on
a Saturday night, when the only duty he might be called upon to
perform is putting the fire out. That, frankly, is the practical
test I have always applied to ships' companies: can he put the
203. With regard to punishments on summary dealing,
is there an accepted list? For example, you mentioned stopping
paywould there be a ceiling on that which is laid down?
(Commodore Bryant) Yes.
204. So there are only certain things?
(Commodore Bryant) There is already a very clear sentencing
guidance on summary proceedings.
205. It is interesting for the Committee to
explore the delicate balance between maintaining the discretion,
which (from comments I have heard) is considered to be one of
the strengths of the UK's Armed Forces, alongside very clear and
consistent rules and guidelines as to how disciplinary matters
should be dealt with. Hearing some of the lists and comments,
I do wonder what Members of Parliament would say if such rules
of conduct were applied to them, but I will not ask you to comment
on that! Can we now move to clause 18, Mr Miller?
(Mr Miller) I hope we can dispose of this clause quite
quickly. I will just explain that, under clause 17, arrangements
would be made for junior naval officers to be dealt with summarily.
There is though at present in the Naval Discipline Act a provision
which allows junior officers to be dealt with by a so-called naval
disciplinary court while on active service, rather than by a full
court-martial. This power does not seem to have been used in living
memorycertainly not for a very long time. Given that we
are introducing summary trials to these officers, it seems appropriate
to remove the power from the Naval Discipline Act.
206. Clause 19: Membership of courts-martial?
(Mr Miller) This basically is to pick up the recommendation
of the Committee in the context of the last Bill in order to allow
warrant officers to serve on court-martials. They would be enabled
to do so in cases where the accused was of lower rank than themselves.
There will be some restrictions. For example, the president of
the court-martial will continue to be an officer; and we would
not allow warrant officers to become a majority of the court,
that sort of thing. Nevertheless, this is to give effect to the
view of this Committee's predecessor, that we should allow warrant
officers to serve on courts-martial.
207. I am broadly in favour of this. Clearly
warrant officers are people with considerable judgment and experience,
otherwise they would not be warrant officers: but there is this
curious anomaly that a warrant officer is then promoted to sub-lieutenant
senior ratingit goes warrant officer, sub-lieutenant and
then lieutenant; he can serve on the court-martial, but when he
gets promoted to sub-lieutenant he cannot serve on a court-martial,
but if he gets promoted to lieutenant he can serve again. It does
not seem to make any sense at all, does it?
(Mr Miller) This was done so that warrant officers
promoted to the officer ranks were treated in exactly the same
way as their peers who enter the officer corps directly. Any officer
would be excluded from serving on the court-martial until he reached
the rank of lieutenant. We are simply proposing those promoted
from the junior ranks, warrant officer and below, are treated
in the same way as their peers.
208. In seeking bureaucratic uniformity you
have produced a bureaucratic anomaly. It is nonsense, is it not?
(Mr Miller) I would not regard this as an issue of
bureaucratic uniformity; it is an issue of equality of treatment.
209. Why do you not just take it out? Why do
you not just say that warrant officers, once they have served,
once they have been eligible to serve on a court-martial, can
continue to be eligible if they are subsequently promoted into
(Mr Miller) With your permission, Chairman, I would
like to take the point away, if I may, noting the views of the
Mr Davies: Otherwise I may well be inspired
to produce an amendment of my own when we come to debate the clauses,
clause by clause, and I am sure you would be better at drafting
an amendment of that kind that I would be.
210. Presumably it is possible that a warrant
officer serving on a court-martial could be promoted during the
course of that court-martial and become ineligible? Or are his
promotion chances damned because he is sitting on a court-martial?
(Commodore Bryant) Part of the promotion procedure
would be an initial officer training course at Dartmouth which
he would have to go through. He would be unlikely to be sitting
on a court-martial whilst he was doing that. I have to say, a
commission of an ex-warrant officer in the Navy is a very rare
beast. We have probably only got three or four of them because
they would be promoted from the lower deck and extracted much
earlier than that.
211. The law should be drafted in such a way
that it cannot be made an ass of. The law should be drafted, therefore,
in such a way that it could not provide even for individual subsequent
cases to be able to produce sentences.
(Mr Miller) We will take it away and reconsider our
212. Can I clarify what period of training warrant
officers would receive before they served on a court-martial?
(Commodore Bryant) They would receive, in their initial
officer training, a broad overview of the disciplinary system,
of which most are well versed anyway taking it from an officer's
point of view. Before anyone sits on the board of a court-martial
and this would include a warrant officer they get a detailed briefing,
including training publications which they must read and become
familiar with the procedure of a court-martialand that
includes the sort of decisions they might have to take, and things
they might have to take account of. They will also receive a briefing
by the judge advocate of the court-martial, again on procedure
and how to make the right decisions and the order in which they
213. Are we talking of a period of a week, two
weeks or three weeks additional training?
(Commodore Bryant) In general officer training terms,
a warrant officer would probably have no more than a week, I would
imagine, but he would of course draw on all his previous experience
of the Service. The amount of training that different sorts of
officers get will vary depending on their role. The supply and
secretariat officers, for instance, will receive more legal training
than those in the welfare branch.
214. Can I just make my position clear on this,
and it may well be colleagues agree with this. I would much prefer
to resolve this anomaly personally in the direction of saying,
where a sub-lieutenant has been promoted from warrant officer
status, promoted from the ranks, he would be able to serve as
a sub-lieutenant on a court-martial, rather than say that all
sub-lieutenants (which is another way of resolving the anomaly
logically) would be able to serve. I do feel with sub-lieutenants
who come in as midshipmen, as officer cadets in most cases, and
then have been promoted to sub-lieutenant, they do not have very
long in the Navy; they probably do not have great maturity because
they are not very old; they certainly do not know the Navy as
thoroughly as a warrant officer would do; and there may be some
understandable hesitation to put such a young person in a situation
in which he or she can actually determine the future career of
a non-commissioned sailor. That would be my preference. That is
how I certainly will draft my amendment if I get to the point
where I have to do it instead of you.
(Mr Miller) Thank you. I have taken the feeling of
the Committee on this, that you would prefer to see us recognise
a warrant officer promoted to commissioned rank, recognising his
background and experiencerather than give the weight we
have given at the moment to treating all of the officer corps
215. I would actually prefer to hear why it
is thought appropriate that we do not use them in court-martials,
and then hear why it might be feasible to do as suggested previously?
(Mr Miller) Because, as Mr Davies said, they are very
young, very junior and, by comparison certainly with the warrant
officer, very much lacking in experience.
216. Did I mishear? Did you say you are going
to come with a level of justification for maybe using sub-lieutenants?
(Mr Miller) No, I said I had gathered from this discussion
that the Committee felt that we should give much more weight to
a warrant officer's experience when he was promoted to an officer,
rather than the line we had taken up until now which was the desire
to treat all officers equally.
217. I would like to know why it is important
to treat them all the same?
(Mr Miller) This is precisely the point I was intent
on taking away, reflecting the views of the Committee on it.
218. You will come back to us on this.
(Mr Miller) We will come back, yes.
219. Can we move on to clause 20: Eligibility
of warrant officers for membership of summary appeal courts.
(Mr Miller) This clause, Chairman, is really a supplementary,
an extension of the previous clause. The new Summary Appeal Courts
were created under changes to the Service discipline Acts made
in the Armed Forces Discipline Act. Warrant officers are not yet
eligible to be members of these courts either. When this was discussed
during the debate on the Armed Forces Discipline Bill, we undertook
to consider whether the warrant officers should be allowed to
sit on the Summary Appeal Courts. It was made clear that we wanted
to wait and see both how the new courts themselves bed down, and
how well inclusion of warrant officers as members of courts-martial
work. We see no reason to assume from the beginning that neither
of these two changes will work. Rather than trouble the House
by having to come back with primary legislation, or wait for five
years, this is a power which would enable us to extend the right
of warrant officers to sit on courts to the Summary Appeal Courts.