Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 360 - 379)



  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 Bill.

  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, I think.

  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 examine—what 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 always—might not always—coincide 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.

Mr Randall

  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 be—and you may have some reason to think this—that 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 it?
  (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.

Mr Keetch

  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 has occurred.[1]

  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.

Mr Key

  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 situation?
  (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.[2]

  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.

Mr Watts

  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 dismissed.

  376. Can you give me an instance of where that would be?
  (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 for dismissal.


  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.

Mr Keetch

  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 is increasing?

Mr Keetch

  379. That is another interesting point. I do not know.
  (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

2   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

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