APPENDIX 3
Letter from Mr Nigel Wylde (26 November
2001)
INTRODUCTION
This is the second attempt this year by the
Ministry of Defence to tag unrelated matters concerning the Ministry
of Defence Police (MDP) onto another bill. Their first attempt
failed earlier this year when the badly drafted and ill thought
out proposals were withdrawn from the Armed Forces Bill by the
government before they were defeated in the House of Lords. The
clauses in this bill only relate to the jurisdiction of the MDP.
In my opinion they do not enhance the ability of the MDP to combat
terrorism and as such have no place in an Anti-terrorism Bill.
This is especially true as the key issues of accountability that
exercised the Select Committee on the Armed Forces Bill are not
included in the amendments to the Ministry of Defence Police Act
1987 contained in this Bill.
The new definitions of jurisdiction of the MDP
contained in the Bill are however, much clearer than the proposals
in the Armed Forces Bill. The government has listened to the criticism
of their original proposals and taken the appropriate corrective
action. The proposals are sensible and proportionate to the role
of the MDP in relation to other police forces.
CONTROL OF
THE MDP
The MDP is supposed to be controlled by the
MDP Committee. The Committee draws its authority from Clause 1(5)
of the Ministry of Defence Police Act 1987:
(5) The Secretary of State shall appoint
a committee, to be known as the Ministry of Defence Police Committee,
to advise him with respect to such matters concerning the Ministry
of Defence Police as he may from time to time require and may
make regulations concerning membership and the procedure of the
Committee.
However, the power of the Secretary of State
to make regulations under Clause 1(5) has to be executed by Statutory
Instrument as defined in Clause 1(6):
(6) The power to make regulations conferred
by subsection (5) above shall be exercisable by statutory instrument
which shall be subject to annulment in pursuance of a resolution
of either House of Parliament.
Statutory Instrument 1098/1988 established the
Ministry of Defence Police (Police Committee) Regulations 1988.
Statutory Instrument 1102/1994 amended these regulations in 1994.
However, Statutory Instrument 939/1995 revoked the 1988 regulations.
This means that the MDP Police Committee has no Regulations concerning
its membership and status approved by Parliament. Since 1995 successive
Secretaries of State have chosen not to make regulations. This
means that the Committee is operating in a vacuum without lawful
authority. As their role is purely advisory this should not be
significant. In practice this is not the case. The Committee is
taking decisions concerning the shape and size of the force, its
funding and its disciplinary procedures without any authority.
There is no reason why the MDP cannot be made
as accountable as any Home Office Force. The MDP is a national
police force that serves all United Kingdom citizens by protecting
assets that are key to our national security. As such they should
be accountable to a Police Authority that is independent of the
Ministry of Defence and comprises mostly of elected representatives
drawn from all four parts of the United Kingdom. If this proposal
were to be adopted the MDP would be, and would be seen to be,
independent of Ministerial or MoD departmental control or influence.
The establishment of an Independent Police Authority
would enable a number of other anomalies to be corrected.
STATUS OF
MDP OFFICERS
MDP constables, like those of the Transport
Police and Atomic Energy Authority Constabulary, are also civil
servants. This means they are subjected to two types of discipline.
This is unfair to the constables and can be changed if an independent
Police Authority controls the force.
The added advantage of appointing a Police Authority
is that the true cost of the MDP would become available. For example
as MDP officers are civil servants the cost of pensions is not
shown against the Force but against the general expenditure of
the MoD.
DISCIPLINE
In the MDP Act only Clause 1 Subsection 4 confers
powers on the Secretary of State in relation to discipline:
(4) the Secretary of State shall have power—
(a) to suspend a member of the Ministry
of Defence Police from duty; and
(b) to terminate a person's membership.
The MoD will argue that as the Secretary of
State can dismiss an officer he can award a lesser punishment.
I submit that this is not the case. If it had been the will of
Parliament to enable him to award a range of punishments they
would have specified them just has been done in the Police Act
1996. If this view is correct, and it is supported by a legal
opinion, it means that many officers have been incorrectly punished
for disciplinary offences ever since the MDP Act came into force
in 1987.
Appointing a Police Authority and making the
MDP subject to the same disciplinary procedures as the Home Department
Forces will correct this anomaly and remove potential for unlawful
punishments.
COMPLAINTS
Similarly the MDP has to rely on a repealed
Section of the Police and Criminal Evidence Act 1984 for its complaint
procedures. Clause 13 of Schedule 8 of the Police Act 1996 makes
this lawful. It also means that the procedures relating to the
MDP are not the same as those governing the Home Department Forces.
This is unnecessary and again unfair to the force.
CONCLUSION
The proposals concerning jurisdiction are sensible
and to be welcomed. They are however, in the wrong bill and without
safeguards relating to control of the MDP they are incomplete.
As the proposed changes to the Ministry of Defence Police Act
1987 do not alter the MDP's ability to deal with terrorism the
Committee is requested to recommend to parliament that the implementation
of these clauses be deferred until proposals for creating an independent
Police Authority for the MDP are brought forward jointly by the
Home Secretary and the Secretary of State for Defence.
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