Examination of Witnesses (Questions 360
THURSDAY 25 JANUARY 2001
360. Why can this matter not be considered at
the same time? Maybe the clause concerned is complicated but why
can it not be attached to the relevant civilian legislation?
(Mr Miller) In the final analysis it is a question
of complexity, given the nature of Service systems in relation
to the time available and the resources needed to draft the civilian
361. Are you sure it is not a matter of territorial
disputes between departments and that you do not feel confident
that the Home Office will take account of your concerns or give
you sufficient time to express them and you like to be in control
of your own legislation? That sort of consideration would never
have occurred to you, Mr Miller, is that right?
(Mr Miller) I have to say that my experience in the
Department has always been that if I can persuade a civilian department
to pin our requirement on the back of their legislation, I will
always take it as on option. It is usually from a purely administrative
point of view a much easier option.
Mr Davies: You confirm my suspicion,
Chairman: You will be aware, Mr Miller,
that this is an area that has come up in our previous discussions
and I think it is an area that the Committee will continue to
examinewhat powers the Secretary of State should have in
respect of secondary or, indeed, primary legislation, taking into
account the unique circumstances of the Armed Forces and the legislation
that applies to them and the legislative process in trying to
bring the two together in a way that acts in the interests of
the Armed Forces which might not alwaysmight not alwayscoincide
with what the interests might be of the particular Secretary of
State of the day. But I think this is an area that clearly we
are going to continue to discuss and explore.
Mr Davies: I personally believe, Chairman,
that providing for secondary legislation to change primary legislation
is always a dubious and problematic principle. When you provide
for secondary legislation to modify primary legislation only in
circumstances in which that primary legislation is in any way
subject to being reviewed by Parliament, then whatever excuse
might exist for doing that really disappears. That is my essential
point. That is why I have an objection in principle to this particular
clause. What sort of practical constraints that will have on the
development of military law if we were to exclude this clause
from the Bill is a matter on which I am trying to probe Mr Miller
at the present time and I think I have got some way to understanding
what lies behind his own motivation in this matter.
Chairman: Mr Davies, your views have
been recorded and we will certainly be coming back to this issue.
Anyone else before I ask Mr Randall to come back in briefly? Then
I am anxious that we move on.
362. You said that one of the reasons for doing
this through secondary legislation was because these matters are
complex and not straightforward. Would you not therefore agree
that 90 minutes in a Committee room discussing a statutory instrument
on something so complex is not satisfactory?
(Mr Miller) I find that difficult to answer in the
abstract. I think that depends very much on the nature of what
is proposed and the context. It may indeed be rather longer than
will be devoted to an issue when it is one part of a large number
of clauses in a piece of primary legislation.
363. Would it beand you may have some
reason to think thisthat because the civil servants and
draftsmen know these things better as they have more detailed
knowledge of it than a Standing Committee on Delegated Legislation
with such complex things it would be unwise to let them lose on
(Mr Miller) I would certainly never take the view
that simply because civil servants or draftsmen have dealt with
something in detail that is a reason for them to be allowed to
take decisions unfettered.
364. I cannot help thinking that when Parliament
comes to discuss the Tri-Service Bill that is already in process
of starting to be put together that this will be one of the major
areas of consideration. Can I suggest we move on, Mr Miller, to
Clause 34, powers to test for alcohol or drugs after a serious
incident. I will ask you to give us some remarks on that.
(Mr Miller) Thank you, Madam Chairman. Clearly the
question of whether there has been a matter of alcohol or drug
abuse in a situation leading up to an accident can be an important
element in the investigation and indeed in any conclusions reached
in that investigation. This clause is therefore intended to introduce
a new power to test for such substances following an incident
and the aim is simply to provide the information that the Services
require at such an accident. It provides that the power will come
into play only after an accident or incident which, in the opinion
of the designated officer, results in or creates a risk of death,
serious injury or serious property damage. Schedule 6, which is
introduced by this clause, also introduces a new offence of failure
to provide a sample when requested to do so. This power to test
will apply to anyone subject to the Service Discipline Acts who
is working for or in connection with the Services. It will therefore
apply to certain civilians as well, civilian employees and contractors
in those circumstances where the Service Discipline Acts are applied
to them. In line with the aim of providing information about the
cause of incidents, the test results will not be useable as evidence
against anyone in civil procedures. This is in line with the general
practice of boards of inquiry. The clause allows the Defence Council
to make regulations specifying who may be a designated officer
in relation to a particular discipline, in other words who can
call for tests, and also matters such as how many samples may
be requested and the procedure to be used and the qualification
of the person taking the sample.
365. Mr Miller, I want to understand what powers
already exist in relation to alcohol and drug testing at the moment
in the Armed Services and why these powers are actually required.
We hear a lot of great publicity. A couple of weeks ago six members
of the Royal Artillery Regiment were thrown out because they were
found to be drug positive. I am not sure what they were supposed
to be carrying but they were thrown out. Why do you need these
additional powers in addition to the existing powers you have
in the Armed Services for drug testing? Perhaps you could outline
for us what existing powers you have.
(Mr Miller) For alcohol; none, for drugs; powers for
random testing, but, by definition, random testing cannot be applied
in the event of an incident because it is not random in those
circumstances. Effectively we have no powers to test for drugs
after an incident either. We are therefore seeking quite specifically
powers to test for alcohol and drugs where a serious incident
366. And the suggestion is made in one of these
things that if an RAF aircraft crashed into a Royal Navy ship,
dual Service, would you therefore test everybody on the ship?
(Mr Miller) That would depend on the circumstances
at the time but it seems unlikely.
367. But possible?
(Mr Miller) I would be reluctant ever to say anything
is impossible but it does seem to me to be a pretty extreme situation.
The issue is likely to be whether the individual or individuals
with the greatest responsibility for the incident were under the
influence of drugs or alcohol, and that is the issue that testing
would be geared towards.
368. I totally understand that and totally support
that but I am trying to imagine a situation where young men and
women who serve in the Armed Forces who are not cocooned in the
Armed Forces and who have relatives in civilian life, and many
of them are in a culture which you and I may not totally understand
but nevertheless exists. If there was an instance where a young
man or woman off-duty may have been smoking cannabis and they
were then tested because they had been in an area close to where
an incident had occurred, they may be a civilian or a member of
the Armed Forces, would they fall under this and could they, if
they were a member of the Armed Forces, be thrown out?
(Mr Miller) Again, you took the example of an individual
who was off-duty and it is difficult to see circumstances in which
an individual who was off-duty would be responsible for an incident
to which this is directed. The sort of situation which one is
looking at again concerns those with some responsibility. For
example, in the event of a collision involving a ship, the question
I think would arise in relation to the look-outs, the helmsman
and the officer of the watch, for example.
369. I understand that but this is not an attempt
in some way to allow you to test people who may not have been
directly responsible just because an incident had occurred?
(Mr Miller) No, it is quite deliberately to establish
whether alcohol or drug abuse had contributed to the accident.
370. A very practical question, Mr Miller: surely
the essence of this is an instant decision when an incident has
occurred to test for drugs so when the aircraft damages the aircraft
carrier, whether or not it is two different Services, that is
the point at which someone should surely say the first thing we
should do, as with a car crash, is test? Who is the designated
officer going to be? And surely the Defence Council does not have
to be phoned up from HMS INVINCIBLE saying, "We have had
a little accident, please can we have your authority?" Is
there a standing authority that the commanding officer or captain
of the ship is the person who says "test them"?
(Mr Miller) Yes. Normally it would be the commanding
officer. In the difficult circumstances where you get two units
or two units of different Services together, the convention that
the Services usually follow, of course, is that the senior officer
would give that sort of authority.
371. Will there be a distinction of any sort
between incidents whilst training and incidents whilst in a combat
(Mr Miller) The key issue is the severity of the incident,
but in a genuine combat situation I imagine that the commanding
officer would very properly use his discretion.
372. And in most cases literally in volume terms
this is more likely to be the Army with incidents involving vehicles,
for example Land Rovers and so on, on training exercises because
the Army has got a real problem, has it not, with the sheer volume
of road traffic or off-road traffic accidents, I should say? It
would not necessarily be the commanding officer. It might well
be that the Military Police were first on the scene so there is
no restriction as to whether it is MDP, Military Police, or the
Service commanding officer, or indeed someone else?
(Mr Miller) We have not yet drawn up the detailed
rules about who the designated officer will be but, yes, clearly
in the event that a Service policeman was the first on the scene
and there was a need for testing it seems sensible that we should
provide for that, but before deciding how far we go in that direction
we also need to consider the detail such as availability of testing
kits and so forth. Again, we need to work through this in order
to get a sensible and pragmatic process.
373. I have said before, Chairman, here we are
legislating before we know why we are legislating or how we are
legislating or what the consequences might be. It will not be
the first time in the history of Parliament that this has happened
but, nevertheless, it is a bit alarming. What would happen in
the case of a firearms incident where death or injury might have
occurred? Is there any distinction there between a drugs or alcohol
related offence and simply an accident?
(Mr Miller) If there was a suspicion that drugs or
alcohol had entered into the incident then it would be open to
the designated officer, who in those circumstances I think would
inevitably be the commanding officer, to authorise a test.
374. Can I pursue this point of Mr Keetch in
the sense of how the tests would be carried out. Would I be right
in saying that you would have to demonstrate that someone is directly
involved with a serious incident, or would it be wider than that?
I am thinking of a situation where an incident happened and testing
took place. Would the criteria be that someone was directly involved
in that or could it be wider than that? On a ship, for example,
how wide could that testing be?
(Mr Miller) We would not expect, for example, as in
the example quoted earlier, everybody on the ship to be tested.
It is those individuals who might reasonably be thought to have
contributed to the incident.
375. Secondly, suppose someone had taken cannabis
three days before when they were off duty and were tested positive
because they would test positive three days after an incident,
would that be a dismissal matter in the Forces?
(Mr Miller) We have said quite specifically that of
course these test results will not be used in disciplinary procedures,
so from that point of view that would not apply. It is a possibility,
yes, that an individual who tested positive for drugs could be
376. Can you give me an instance of where that
(Mr Miller) Quite simply, if an individual was tested
for drugs after an incident and was found positive then, yes,
the issue of dismissal would arise because the principle in dealing
with drugs is, of course, that any evidence of drug use is a reason
377. Can I be absolutely clear on that. Any
evidence of drug use, even if it occurred clearly when you were
off duty, does make that individual liable to instant dismissal
from the Armed Forces?
(Mr Miller) Yes, that is right. That, of course, is
the position under the regime for random drug testing.
378. From a personal point of view this is an
area where, whilst this Bill appears to be trying to bring military
and civilian legislation together, it is clearly not bringing
military and civilian operational reality, if you like, together
because the reality in civilian life is that people smoke cannabis,
they move on and do other things but they are not faced with that
possibility. In Service life it is clearly the case that the number
of people being discharged from the Services is growing because
of alleged drug misuse. Is it because you are testing and seeking
to find that alleged drug misuse in a way that is certainly not
done in civilian life?
(Mr Miller) Certainly the programme for drug testing
is not being stepped up, the regime is at the same level. The
fact is that there are differences in Service life. Servicemen
are often operating dangerous machinery, they are often involved
in the use of firearms, there are areas where immediate discipline
is of vital importance, and it is for all those reasons that it
is felt appropriate for the Services' attitude to drugs to be
rather less relaxed than that which applies in the community.
Chairman: I know it is not entirely a
clear line because I had an interesting constituency case recently
where somebody with an HGV driving licence went for a test and
whilst it was clear that the drug had not been taken whilst he
was at work, it nevertheless meant that he lost his licence because
a month or so after he apparently still had the drug in his system.
It is not entirely totally clearly defined.
Mr Keetch: Just for the record, I am
not saying that the current situation should not be the case,
I am simply saying that it appears to me, given the number of
people being discharged from the Armed Forces under this matter
is increasing, that the Services are looking at this in a rather
zealous way. I am not saying that is wrong but it is certainly
the case that that has happened
Mr Crausby: Is that because the problem
379. That is another interesting point. I do
(Mr Miller) I make the point that we have not increased
the rate of testing. To the extent that there is any increase
in drug use, and I do not have the figures and I do not know whether
the figures actually bear that out, that is not due to any tightening
of the regime.
(Brigadier Cottam) If it is helpful, first of all,
with regard to this Clause, we are very clear in the Armed Forces
that this is a health and safety issue that we are addressing
here, while the random drug testing across the Services is primarily
a discipline issue for the reasons of operational effectiveness
and morale of our forces. In terms of the statistics, in broad
terms the amount of testing done in the Army is large. The number
that we are finding tested positive is not increasing, it still
remains around 0.5 per cent or so of those tested as compared
with about six per cent being the results of tests of civilian
organisations that voluntarily, or for whatever reasons, have
systems of their own. That is not an increasing figure. Of course,
in the Army the overall number of people being discharged does
look quite large.
1 Note by witness: There are no powers to test
for alcohol in the same way that random drug tests are carried
out. However, Service police have powers to test for alcohol,
for example where they have suspicion of a drink-driving offence. Back
Note from witnesses: Any testing undertaken by Service
police in these circumstances would derive from their existing
statutory powers to test in the course of investigation into possible
offences, rather than the new powers proposed in the Bill. Back