APPENDIX 16
Memorandum submitted by Mr Roy Large
INTRODUCTION
In 1994, I retired from the Ministry of Defence
Police after 22 years service with the force.
I wish to raise some issues regarding Jurisdiction
and Discipline procedures as they affect the Ministry of Defence
Police (MDP).
I refer to Clauses 31, 32 and Schedule 5 of
the Bill.
JURISDICTION AND
COMPLAINTS PROCEDURES
Whatever the particular merits or otherwise
there may be in extending the jurisdiction of MDP by virtue of
Clause 31, there remain no legal provisions for the handling of
Complaints Procedures.
To the best of my knowledge, the provisions
of Part IV Police Act 1996, Sections 66 to 83 "Handling of
Complaints etc", do not apply to MDP and neither have they
been extended to the force by virtue of Section 78, "Constabularies
maintained by authorities other than police authorities".
Whilst informal agreements and certain arrangements
exist between MDP and the Police Complaints Authority (following
the requirements of the Police and Criminal Evidence Act 1984)
to investigate complaints in a like manner and under similar processes,
the absence of regulatory controls would appear to be an important
issue if MDP are likely to have greater contact with "members
of the public".
DISCIPLINE AND
CONDUCT OF
MDP
For the first time, in the history of MDP, Clause
32 and Schedule 5 place disciplinary matters (as they affect members
of the force) within a limited degree of statutory control.
Hitherto, no such arrangements have existed
although, for many years, MDP has implied they have—to the
detriment of those members of the force punished by way of fine,
reduction in rank and other punitive measures.
I am aware that a number of members (and former
members) of MDP intend to pursue a Group Action in the Courts
against the Chief Constable and the 2nd PUS.
Although the existing Section 1(4), Ministry
of Defence Police Act 1987 gives power to the Secretary of State
to dismiss members of the force, it is silent on all lesser punishments.
Following the principles inculcated in both
the Common Law of England and Human Rights legislation of "no
punishment except in accordance with the law" there is a
justifiable view that members of the force have been subjected
to disciplinary procedures that are Ultra Vires and that the punishments,
awarded at a tribunal with no force in law, are unlawful.
I enclose extracts of Hansard, answers to Written
Questions, showing MDP's responses (not printed).
Some of these answers quote "The Ministry
of Defence Police (Discipline) Regulations 1985, as amended".
These "regulations" do not, nor have
ever, existed in law.
"The Ministry of Defence Police (Discipline)
Regulations 1985 (as amended)"—the words "as amended"
refers to "The Ministry of Defence Police (Representation
at Disciplinary Proceedings) Regulations 1988" which gave
the right to legal representation for accused members of MDP.
However these Regulations did not amend anything (they are silent
on previous legislation) because . . . there was nothing to amend.
Here you have a Regulation (founded by virtue of S4 MDP Act 1987)
that gives the right to legal representation at a Discipline hearing
that has no foundation in Law; to a Presiding Officer who has
no authority in law; over allegations of breaches of a discipline
code founded on fiction.
In any event, as the Discipline regulations pre-date
the MDP Act 1987, there was no legislation prior to this date
(1987) that could have given authority for them.
I also enclose a copy of a case before the Court
of Appeal—The Queen v Chief Constable of the Ministry of
Defence Police ex parte Robert Jardine Sweeney [1998] EWCA
4148 (28 October 1998) (not printed). This case was, to
a large extent, determined by their Learned Judges' interpretation
of the MDP regulations as presented to them in Court. One wonders
whether they would have reached an alternative decision had they
known that the regulations were not substantive law?
I also enclose a copy of a letter signed by
the Deputy Chief Constable, dated 8 December 2000 (see Annex)
(a reply in response to a solicitor's letter, dated 6 December
2000), that purports to outline the legal position with respect
to MDP's discipline regulations. I have removed the privacy markings,
as the subject (a serving member of the MDP) is concerned that
retaliatory measures may be directed towards him. I share his
concerns.
The letter outlines a convenient interpretation
of the legal position, which does not, in reality, exist. The
final paragraph ". . . public interest immunity" is
untrue.
I believe it highly unlikely that Mr Comben
is not aware of a Case where his predecessor, Mr Norman Chapple,
attempted to claim Public Interest Immunity for Discipline papers
at a Judicial Review before Rt Hon. Lady Justice Butler-Sloss—and
was soundly rebuked for the falsity.
Members of MDP, for the past 15 years, have
been subject to disciplinary procedures that have no force of
law, have no direct comparison with the conditions of employments
of anyone else in this country and yet, are excluded from most
of the provisions of Employment legislation by virtue of Section
200 Employment Rights Act 1996.
Section 200 excludes "members of a police
force" (by this definition "holders of the office of
constable") as all other police forces have their own Regulatory
procedures and Rights of Appeal implemented by law. With the notable
exception of MDP.
I know of cases where officers have sought refuge
at Industrial tribunals and were excluded (whatever the merits
of their case) by virtue of Section 200. But, they have nowhere
else to turn, no other simple remedy in law except the expensive
route of Judicial Review of their case.
However, I bring these matters before the Committee
as they outline a possible motive for what could be introduced
at a later stage of the Bill—a clause giving retrospective
powers to the Secretary of State in respect to discipline matters.
The precedent exists by virtue of Section 50(5)
Police Act 1996; "Regulations under this section for regulating
pay and allowances may be made with retrospective effect to any
date specified in the regulations, but nothing in this subsection
shall be construed as authorising pay or allowances payable to
any person to be reduced retrospectively."
Although Section 50(5) does not give powers
in respect to conduct (discipline) matters, and it would be novel
in English Law to introduce such punitive measures retrospectively,
there is the possibility such a clause might be introduced but
to include the word "conduct" or "discipline"
inserted in the appropriate passages.
It is well known that some of the litigation
that may be directed towards both MDP and the 2nd PUS is unlikely
to proceed much before the end of this year, by which time the
Bill will have received Royal Assent.
If a clause were to be introduced, far from
righting the wrongs of the past, it would negate those wrongs
and swiftly abort the "rights of action" of the officers
concerned.
In the final analysis, the most important question
with regard to MDP disciplinary procedures is. . ."are
these sections of the Armed Forces Bill being used as a vehicle
to amend an existing lawful process, or to legalise that which
is currently unlawful?"
What is the meaning of "member of the Ministry
of Defence Police"?
Schedule 5 of the Bill—"Power to
make regulations relating to disciplinary matters" makes
reference to amendments affecting a member of the Ministry of
Defence Police.
The Bill does not appear to interpret the phrase
and I ask to what ranks of the force this applies? That is, do
the proposed regulations (for disciplinary matters) apply from
the rank of Constable to Chief Constable?
If so, what separate procedures are there for
discipline and conduct matters relating to Superintendent or higher
rank?
Such issues may be open to convenient interpretation
and I refer to Part IV of the Police Act 1996 that defines and
implements the separate measures in respect of "members of
a police force" and "senior officers".
SUMMARY
There are many issues effecting members of MDP
that this Bill does not resolve and indeed, leaves them undefined
and open to interpretation.
Home Department Police Forces are entirely Regulated
with respect to Pay and Conditions, Allowances, Conduct (and related
matters), Police Powers and Jurisdiction—all of which fully
comply with the requirements of Human Rights legislation.
This is not the case with the Ministry of Defence
Police and I believe there is merit in removing all clauses from
the Bill that relate to the force and conducting a complete Review
of these matters—with a view to including MDP into the full
provisions of the Police Acts with necessary amendments regarding
jurisdiction and some relating to pension rights.
CONCLUSION
Citizens of the United Kingdom trust and expect
that Parliament will scrutinise proposed legislation to ensure
that it upholds the principles of justice and equality for all.
Members of the public also have a right to expect
that complaints against members of a police service will be dealt
with fairly, impartially and in accordance with the law.
Likewise, police officers themselves should
enjoy those same rights when subject to disciplinary procedures.
Unfortunately, and as demonstrated, members of the Ministry of
Defence Police currently (and uniquely) do not have such rights.
They fall victim to unlawful and anomalous procedures, which this
Bill does not seek to address or remedy.
Much is made of current government policy in
respect of "Rights and Responsibilities". Currently,
the Ministry of Defence Police affords few rights whilst continuing
to evade responsibility.
I would submit that it cannot be in the interests
of the general public or serving officers alike to seek to validate
serious anomalies by such measures as currently laid before Parliament.
February 2001
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