Select Committee on Armed Forces Appendices to the Minutes of Evidence


Memorandum submitted by Mr Roy Large


  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.


  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".


  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".


  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.


  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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