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Sixth Standing Committee
on Delegated Legislation
Wednesday 25 June 2003
[Miss Anne Begg in the Chair]
Draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2003
Draft Armed Forces (Review of Search
and Seizure) Order 2003
The Parliamentary Under-Secretary of State for Defence (Mr. Ivor Caplin): I beg to move,
That the Committee has considered the draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2003.
The Chairman: With this it will be convenient to discuss the draft Armed Forces (Review of Search and Seizure) Order 2003.
Mr. Caplin: What a pleasure it is, Miss Begg, to be under your chairwomanship this afternoon. I will try to be relatively brief, but it will be helpful to the Committee if I outline the background to the orders.
The Army, Air Force and Naval Discipline Acts (Continuation) Order 2003 was laid before the House on 28 April and is part of a process by which Parliament ensures that the service discipline Acts continue to be in force. The main element in that process is the five-yearly Armed Forces Act, the most recent of which—the Armed Forces Act 2001—extended the lives of the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 by a further five years. That is subject to both Houses approving an order, such as the one before us, in each intervening year.
The service discipline Acts provide the statutory basis for discipline in the armed forces. It is because of that that they and the order, which is the means of ensuring that the discipline Acts remain in force, are of critical importance. Committee Members will have seen the explanatory memorandum on the order's compatibility with the rights provided under the European convention on human rights. The order is a brief document and raises the ECHR issues only in that it ensures that the three Acts that have been developed over the years to reflect the convention continue in force.
In last year's debate, my right hon. Friend the Minister of State, Ministry of Defence mentioned the European Court of Human Rights judgment in the case of Morris v. the United Kingdom. The Court had taken the view that the procedures for post-trial review provided for in the service discipline Acts were not compatible with article 6 of the convention. That was on the basis that the involvement of non-judicial service authorities in the review of court martial findings and sentences impaired the independence of the court martial, even though the process is intended as a safeguard for the accused.
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My right hon. Friend advised the Committee that the Government had not yet decided how to react to that judgment. That was because the same issues of post-trial review were also being addressed by the Appellate Committee in the other place and we wanted to await their lordships' judgment before taking a decision on the future of the review procedure. As it happens, the judgment in the case of Boyd, Hastie and Spear expressed a positive view of the procedure. It accepted that post-trial reviews served as a safeguard for the accused. The judgment also acknowledged that any changes made as a result of the review process were appealable, so that the courts would be able to have the last word on the cases. In formulating their judgment, their lordships were fully aware of the Strasbourg judgment on the Morris case. As a result of the judgment of the Appellate Committee, I am able to confirm that the service discipline Acts are compatible with the ECHR, and therefore, in continuing those Acts, so is the order.
That is not entirely the end of the story. The authorities in Strasbourg have decided because of the conflicting judgments that it would be appropriate for the grand chamber of the European Court of Human Rights to consider the issue of post-trial review. The hearing will be later this year. It would of course be inappropriate to anticipate that further judgment or to consider at this stage how we might react to it. However, the episode usefully illustrates how helpful it can be that our domestic courts are now more readily able to address ECHR issues, following the Human Rights Act 1998.
The Government plan to replace the service discipline Acts with a single tri-service Act, which will provide a framework of armed forces legislation that will better meet the future and long-term needs of the services. The Government are continuing to develop policy for the proposed legislation. The focus remains on how best to harmonise the services' differing disciplinary powers and procedures. That is so that the tri-service Act will fulfil the objective of improving the administration of discipline when the services operate together.
The Government are looking closely at the arrangements for summary discipline and courts martial. In doing so, we aim to build on aspects common to all three services, and to ensure that their requirements are appropriately reflected in the new procedures. At the same time, we are considering other areas covered by the legislation, such as the system for members of the armed forces to make complaints. That is at present essentially the same in all services; the tri-service Act will be an opportunity to develop procedures that better meet the likely expectations of our people.
The Government and the armed forces attach considerable importance to the tri-service Act project. That is reflected in the substantial resources that are devoted to working out the principles and the detail of the legislation. Although work on policy development is taking a little longer than the Government had envisaged, that is not affecting the overall timetable. In any case, as I am sure the Committee will agree, it is essential that we get the
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policy right. Nevertheless, we hope that the next five-yearly armed forces Bill—due in the 2005–06 Session, but obviously subject to the availability of parliamentary time—can be the vehicle for the tri-service legislation. As details of the main proposals for the tri-service Act become available, I shall keep the House informed of developments.
Discipline in the armed forces is not a goal in itself. It serves the vital function of underpinning operational effectiveness. The effectiveness of our armed forces and their discipline have again been put to the test in recent months; they have been shown to be in excellent order. Notwithstanding the appalling events of yesterday, it is right to place on record that our troops are doing a superb job in Iraq. They have acted professionally and with clear determination in combat and latterly in the humanitarian and reconstruction phase of our operations.
I am confident that the Committee would not want allegations of serious misconduct against a few individuals to detract from what has been a great achievement. The focus in recent months has naturally been on operations in Iraq. However, it is important that we should not overlook what the men and women of the three services do on our behalf. They are an enormous credit to our nation and I am sure that the Committee would wish to join me in paying continuing and ongoing thanks and appreciation to them, wherever in the world they are serving. I commend the order to the Committee.
The Armed Forces (Review of Search and Seizure) Order 2003 is also made under the Armed Forces Act 2001, which requires that the order follow the affirmative procedure, needing approval by both Houses. Part 2 of the 2001 Act provides for the first time a statutory regime for powers of entry, search and seizure in connection with the investigations of offences under the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. The draft order will form part of that regime. The usual procedure for entering and searching premises will be by warrant order, granted by a judicial officer under section 5 of the Act. However, it is recognised that it will not always be practicable in the armed forces to obtain a warrant in advance of entering and searching premises. Therefore, section 7 provides commanding officers with a limited power to authorise the search, without a warrant, of the living accommodation of persons under their command. Where property has been seized and retained following such a search, section 8 provides that the commanding officer must request a judicial officer to review the search and the seizure and retention of property. That is to provide appropriate retrospective safeguards in the absence of a warrant.
Mr. Ian Liddell-Grainger (Bridgwater): Having served in the armed forces, as did my hon. Friend the Member for East Devon (Mr. Swire), I know that it is very difficult as a commanding officer of any troops to authorise a search, because troops live very closely together. Problems can occur overseas as well as at home. Section 7 would give commanding officers a limited ability to search premises. Will that not leave them open to the accusation of—to put it mildly—
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heavy-handedness in the control of their troops, on whom they depend and vice versa? The provision may cause an imbalance in discipline.
Mr. Caplin: I do not think that that is so. I have confidence that our commanding officers will operate the relevant parts of the Acts properly.
Mr. Hugo Swire (East Devon): Will the Minister allow me to intervene?
Mr. Caplin: Would the hon. Gentleman like to try?
Mr. Swire: Having served in the armed forces, I would like to try. In my experience—which, I concede, is dated—the commanding officer is a figure of some authority who is not easily challenged. Part of that authority derives from the fact that he is obeyed by all ranks. The legislation seems to question the commanding officer's authority, which I believe would be undermined. This is a lot of bureaucratic nonsense. What would happen in a submarine, for instance, where people live very close together? The commanding officer would have to go through a torturous process in close living quarters, as my hon. Friend the Member for Bridgwater (Mr. Liddell-Grainger) has so rightly said. That would create a dysfunctional atmosphere; before, the system worked perfectly well.