APPENDIX 3
Memorandum submitted by the Ministry of
Defence
THE RECOMMENDATIONS AND OBSERVATIONS OF THE
SELECT COMMITTEE ON THE ARMED FORCES BILL 1996
"We fully support the changes in the courts-martial
system proposed in the Bill and believe they will contribute to
improving still further confidence in the exercise of Service
law"
These changes came into effect on 1 April 1997.
In our view, they have had the effect anticipated by the Committee
on the previous Bill.
"However, we appreciate that any move in
this direction might have widespread consequences and would need
further and detailed investigation"
This observation related to the extension of
court martial membership to non-commissioned officers. The then
Minister of State for the Armed Forces announced on 17 February
1998 that, following a review established by the previous administration,
it had been decided that warrant officers should be eligible to
sit as court martial members in cases where the accused is of
lower rank. This Bill includes the necessary legislative proposals
(in clause 19).
"We look to MoD to examine further what steps
can be taken in order to speed up the process of bringing cases
before Standing Civilian Courts"
The process for bringing cases before Standing
Civilian Courts (SCCs) has been, and will continue to be, kept
under review. However, it now takes an average of eight months
from date of offence until first hearing at the SCC. In 1996 the
average time was six months.
The most significant relevant development has
been the creation of the independent Prosecuting Authorities for
the Army and the RAF, in the Armed Forces Act 1996. These were
established as an important safeguard in ensuring that the prosecution
process is independent of the chain of command, but a by-product
of this has been the introduction of an additional layer of legal
advice into the SCC system, because cases are now referred from
the chain of command to the Prosecuting Authorities. Before the
changes were made, the Army and the RAF relied on their respective
overseas legal offices—part of the chain of command—for
all legal advice in relation to a SCC trial. But since 1 April
1997, while those offices have continued to advise the chain of
command on the circumstances of a case, it has become the responsibility
of the independent Service Prosecuting Authorities to decide whether
there is sufficient evidence for there to be a realistic prospect
of conviction and, if so, to institute proceedings in the SCC.
It is the addition of this part of the process, rather than the
way that business is conducted by the Prosecuting Authorities,
which has led to cases taking longer to come to trial.
"We support the proposed changes affecting
complaints procedures and access to industrial tribunals. We recommend
that the regulations necessary to permit, in certain circumstances,
the simultaneous pursuit of complaints internally and at an industrial
tribunal be made without delay"
Queen's Regulations now allow complaints to
be brought concurrently. Any complaints brought by Service personnel
to an Employment Tribunal under the Sex Discrimination Act 1975,
the Equal Pay Act 1970 and the Race Relations Act 1976 normally
name the Ministry of Defence as the respondent because it has
a statutory liability. A complaint may not be presented to an
Employment Tribunal before it has been submitted under the internal
redress procedures, but can be presented concurrently. It is general
practice for an Employment Tribunal to refrain from listing a
case for hearing if an internal redress is known to be in train.
The time limit for a Service complainant to refer a case to an
Employment Tribunal on all eligible matters (except for claims
under the Equal Pay Act) is six months, which is three months
longer than for civilians. This allows Service personnel to complete
their internal redress procedure first and, if not satisfied with
the result, still to have the statutory three months to take their
case to an Employment Tribunal.
"We believe that the Clause now fully meets
all the legitimate concerns on the future of the site and welcome
the early announcement that the University of Greenwich and the
National Maritime Museum are the most appropriate contenders for
its future occupancy"
The clause, subsequently section 30 of the Armed
Forces Act 1996, required the Secretary of State to have regard
to the preservation, public access, character and history of the
Royal Naval College, Greenwich, when granting a lease of the site.
On this basis, responsibility for the site and
buildings previously occupied by the College passed in April 1997
to the Greenwich Foundation for the Royal Naval College, whose
chairman is Sir Angus Stirling, a former Director General of the
National Trust. The Foundation was established as a company limited
by guarantee and as a registered charity to acquire a 150-year
lease of the site, signed on 6 July 1998, from the Crown charity,
Greenwich Hospital. The principal objects of the Foundation are:
— To ensure that the buildings and
surroundings contained within the site are properly cared for
and maintained to a high standard, as befits their character and
historical importance.
— To ensure that the use of the buildings
is in keeping with and respects the nature of the site, and in
particular that the maritime history of the site and connections
with the Royal Navy are reflected in its future.
— To make arrangements for the public
to be able to visit and enjoy the site on a regular basis and
to promote its educational value.
Since then, enormous progress has been made.
The Royal Naval College has a major new educational role as part
of the University of Greenwich and, from 2001, it will be home
to Trinity College of Music. Some of the buildings, notably the
Painted Hall and Chapel, together with the grounds, remain under
the direct control of the Foundation and are open to the public
daily. Major repairs and refitting are nearing completion and,
with careful and sympathetic restoration, the buildings are reverting
more closely to their original form. A major new visitor centre
in the Pepys Building close to the Cutty Sark opened in June 2000,
allowing more people than ever to enjoy the college site and learn
its history.
The Dreadnought and Devonport buildings have
been acquired by the University under separate leases from Greenwich
Hospital, with the agreement of the Secretary of State for Defence,
in accordance with section 30 of the 1996 Act. Following extensive
refurbishment, they serve as the new University Library and as
postgraduate student accommodation and conference centre respectively.
"We welcome the Action Plan agreed between
the CRE and MoD and urge the Department to implement it with a
determination not hitherto displayed. We also urge the MoD to
implement all its provisions in good time to make a full report
on progress to the Select Committee on the next Armed Forces Bill"
See separate memorandum on race equality in
the armed forces.[1]
"On this basis, we do not recommend any change
to the current policy"
This related to the policy on homosexuality
and the armed forces. Following the European Court of Human Rights
judgement against the United Kingdom on 27 September 1999, and
the subsequent review of the policy on the issue, the lifting
of the ban on homosexuals serving in the armed forces was announced
by the Secretary of State for Defence on 12 January 2000.
The revised policy is framed within the law,
while sustaining operational effectiveness in the Services, and
respects the human rights of the individual. It is also underpinned
by a new tri-Service Code of Social Conduct designed to maintain
operational effectiveness and cover inappropriate personal behaviour,
whether heterosexual or homosexual, and its consequences.
The Code was well received and has been found
to be a useful guide for commanding officers in dealing with issues
surrounding personal relationships and behaviour, going wider
than just homosexual issues.
Since lifting the ban on homosexuals in the
armed forces, the three Services have not reported any significant
difficulties in adapting to the new policy. The policy was reviewed
in the light of the first six months' experience. The review concluded
that the change of policy has been introduced smoothly and with
fewer problems than might have been expected.
"We recommend that MoD and those responsible
for the chaplaincies ensure that all discussions between chaplains
and personnel remain strictly confidential and that personnel
are made fully aware of the context and degree of confidentiality
of any discussions with medical officers"
The welfare services which support the armed
forces depend upon absolute confidentiality. Although the Chaplains
have a responsibility to the chain of command, their counselling
function on a personal level is an entirely separate and private
matter. We do not expect them to treat personal information given
to them in confidence any differently from that given to their
counterparts outside the armed forces.
Medical officers (MOs) are frequently involved
in the management of personnel with welfare problems.
Medical officers are bound by strict rules on
confidentiality that are promulgated by the General Medical Council.
In all cases when it is necessary to disclose medical information,
every effort is to be made to obtain the patient's consent. This
consent must be "informed consent" and MOs must ensure
that patients understand what is to be disclosed, to whom, why
and what the consequences might be. If consent is withheld, the
patient must be informed if that confidentiality may need to be
breached.
In rare circumstances the MO may have to disclose
information to the Commanding Officer without consent or contrary
to the wishes of the patient. Such occasions arise when the security,
health, safety or welfare of the unit or the individual are at
serious risk. Prior to disclosure, the MO must try to obtain the
patient's consent. What can and cannot be disclosed is a matter
for the MO's judgement, bearing in mind that he/she may need to
justify such disclosure to the General Medical Council. Homosexuality
is no longer a bar to service with the armed forces and should
not be disclosed to a commanding officer.
Like any other doctor, an MO may disclose that
a patient is HIV positive to the patient's known sexual partner
if there is a serious and identifiable risk to that person. In
such cases, the MO should endeavour to persuade the patient to
disclose the information voluntarily in the first instance. The
MO should not disclose a patient's HIV status to other healthcare
workers against his/her wishes unless failure to do so would put
the health of individual healthcare workers at serious risk. HIV
status should not be disclosed to a commanding officer except
in exceptional circumstances.
"We recommend that the Government ensures
that the necessary resources and Parliamentary time are made available
to allow for the consolidation of Service law before the passage
of the next Armed Forces Bill"
Ministers announced in May 2000 that it had
been decided not to proceed with the consolidation of the Service
discipline Acts, but to concentrate instead on the development
of tri-Service legislation. This will address the structural issues
posed by the present legislative framework, notably the difficulties
in administering discipline effectively in a joint Service environment,
in a way that the consolidation was never intended to.
"We recommend that the working group considering
the position of under-18 year olds should give careful consideration
to the desirability of requiring minors to commit themselves to
a period of service no longer than that of adults."
The working group referred to by the Select
Committee was undertaking a review within the Ministry of Defence
of under 18s' terms of service. This review was subsequently put
into abeyance, pending the completion of work on harmonising reckonable
service for engagement and pension by the Pensions Review.
The minimum period of commitment for those entering
the armed forces is known as the Minimum Time to Serve (MTS);
this currently varies from three to four years depending upon
training and organisational requirements. However, personnel under
18 have a statutory right to discharge within the first six months
of entry.
The Royal Navy and Royal Air Force are examining
the feasibility of equalising MTS at four years for under 18s
and other personnel. The Army has recently introduced revised
MTS regulations (increased from three to four years for all soldiers)
and wishes to examine the effectiveness of these before considering
any further change. The rationale for the change is that this
allows both the individual and the Army more time to develop vocational
skills, which, in turn, will increase the prospects for their
continued Army service or their eventual transfer to civilian
life. The increase also provides the Army with an improved return
on training investment, providing a useful enhancement to trained
strength and leading eventually to a reduction in the numbers
needing to be trained. The revised MTS will also help the Army
to meet its full manning requirements.
"On balance, we believe that it would be
impractical, not to mention unpopular, to place further restrictions
on the ability of under-18 year olds to serve on active duty"
The present Committee may be aware that the
United Kingdom was actively and fully involved with the final
drafting of an Optional Protocol to the United Nations Convention
on the Rights of the Child, which was agreed in Geneva on 21 January
2000. The United Kingdom subsequently signed this Optional Protocol
at the United Nations Millennium Summit on 6-8 September 2000.
On signature, the United Kingdom entered the following declaration
with the United Nations Secretariat:
"The United Kingdom will take all feasible
measures to ensure that members of their armed forces who have
not yet attained the age of 18 years old do not take a direct
part in hostilities. However, the United Kingdom understands that
Article 1 of the Protocol would not exclude the deployment of
members of their armed forces under the age of 18 to take a direct
part in hostilities where—
(a) there is a genuine military
need to deploy their unit or ship to an area in which hostilities
are taking place; and
(b) by reason of the nature
and urgency of the situation—
(i) it is not practicable
to withdraw such persons before deployment, or
(ii) to do so would
undermine the operational effectiveness of their ship or unit,
and thereby put at risk the successful completion of the military
mission and or the safety of other personnel."
Detailed guidelines to this declaration are
being worked out within the Ministry of Defence.
January 2001
1 See Appendix 4. Back
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