Examination of Witnesses (Questions 1-19)
27 OCTOBER 2004
MR JULIAN
MILLER, MRS
TERESA JONES,
CAPTAIN PETER
CRABTREE RN OBE, BRIGADIER
STEPHEN ANDREWS
CBE, AIR COMMODORE
DUSTY AMROLIWALA
OBE AND MR
HUMPHREY MORRISON
Q1 Chairman: Thank you very much for
coming. This is a long-awaited meeting. Peter Viggers and I were
on the Select Committee on the Armed Forces Bill many years ago,
expecting this proposal at least a decade ago, although I notice
that the phraseology is different. In the early Nineties, there
was talk of consolidation; now it is harmonisation. Can you tell
me the difference between consolidation and harmonisation and
why it has taken so long for either of them to appear before the
House, albeit not yet in final form?
Mr Miller: I am happy to take
up those two points. Consolidation was indeed identified in the
Nineties as being an issue, the point then being to try to bring
together the various disparate changes to legislation which had
happened over numerous years. It was a tidying-up exercise. What
we then looked at subsequently, and the SDR flagged this up in
1998, was the need to have a single system of Service law, so
rather than simply tidying up three separate Acts, to recognise
that particularly as joint organisations, joint operations became
more important, it was desirable that all Service personnel should
be under the same legal system and not have to chop and change
as they moved from one part of the armed force structure to another.
That led us to decide that a single Act was appropriate, and that
is where we are now; that is really what harmonisation, as you
refer to it, sets out for our aim. You mention that this has been
a long time coming. Of course we recognise that. In 2001, my predecessor—
Q2 Chairman: It goes back
much further than that, I can tell you.
Mr Miller: In 2001,
when we had recognised that harmonisation and the Single Act was
the way ahead, we started to build up the team and to get to grips
with the scale and complexity of the task we were setting ourselves.
I think it is worth saying at the outset that this has been very
much an MoD-wide exercise. It has involved the Services from the
outset as a joint effort to produce an approved system of law,
which they are keen to see us introduce. This has resulted in
us setting up a team at the centre of the department with full
Service representation and working very closely with the staffs
of the three principal personnel officers as well as the legal
advisers, but it is a demanding task, a big task. As you know,
it is going to be a large Bill, and it raises issues of policy,
which I suppose are inevitable as one tries to bring together
the way the three separate Services have done their business in
the past and find a future with which they are comfortable.
Q3 Chairman: Fifteen years
is a pretty long time, even by the standards of the MoD. We were
told in 1991, and probably earlier, and I can recall when Peter
Viggers was Chairman of the Armed Forces Bill Committee it was
a matter or urgency when we were relatively young men and we had
the lamest of excuses. The best was: oh, well, they have seconded
a Treasury specialist to us and he went back. Obviously, the removal
of that guy brought the whole thing to an end. Maybe you could
drop us a note and tell us why if it was urgent then, 15 years
ago, did not the Ministry of Defence do anything about it. Teresa,
maybe you were around monitoring us in those days. Can you recall
why it has taken so long?
Mrs Jones: I was
Head of the Bill Team in 1990-91 when we produced that Armed Forces
Act. It was the Select Committee on that Bill that particularly
gave impetus to the idea of consolidation rather than harmonisation.
A lot of work, I would say, went into consolidating the three
discipline Acts to the extent—and Humphrey Morrison will
correct me if I am wrong—that there was a first draft of
that Bill. That work was overtaken by two things really: one was
the need to make changes to Armed Forces' legislation that arose
out of the Human Rights Act in 1998, so we had the Armed Forces
Discipline Bill in 2000 and the Armed Forces Bill in 2001; and
the second thing was obviously the Strategic Defence Review, which
changed the emphasis from consolidation, which is a tidying up
that Julian Miller mentioned, to a complete review of the Service
Discipline Acts. The work in doing that review means that we are
looking at not just the discipline proposals but the proposals
throughout the three Service Acts, some of which, I have to say,
have not been looked at, probably at all, since 1955. That is
one of the reasons why it was such a massive project.
Q4 Chairman: Thank you
very much. That seems, at first sight a plausible explanation.
When is the Government committed to doing all this?
Mr Miller: We are
committed to bringing the Bill to the House next year and subject
to parliamentary process, and the views of this Committee, enacting
it the following year. We would then expect it to take some time,
once legislation has been agreed, to bring the detailed application
into force, but certainly by 2008, we would expect the great majority
of the new arrangements to be in place.
Q5 Chairman: You are rushing
then! I hope I am around to see the end product of this speedy
process. Can you tell us why it is so wide? The MoD is not responsible
for many pieces of legislation. Is it because you feel you do
not have the skills or whatever, and suddenly a mammoth piece
of legislations comes and you are not quite ready for something
of this magnitude?
Mr Miller: It is
certainly true that it is a much larger piece of legislation than
the Department routinely deals with, and it is a very ambitious
piece of legislation, but we have the right skills in place. We
have built up a team since 2001 to its present size. We now have
a team led by Humphrey Morrison with lawyers within the MoD who
are concentrating on this; we have five lawyers dealing with it
and an Armed Forces Bill team of seven lead by Teresa Jones with
Service representation, as well as the contributions from other
parts of the Department. Of course, at this stage, as the drafting
process is now underway, we also have four parliamentary counsel.
Q6 Chairman: Are they
going to stay? Is it going to be recalled or torpedoed as in the
early Nineties?
Mr Miller: We are
pretty confident now, Chairman, that this will proceed to the
production of a full Bill, which will be brought to the House
next year.
Q7 Chairman: In terms
of consultation, will you let us have a look at it for, hopefully,
pre-legislative scrutiny?
Mr Miller: We had
seen the memorandum we have already given you for this hearing
setting this process in train. We would certainly expect to come
back to you with more progress reports as the development of the
Bill progresses and deal with any questions that you have.
Q8 Mr Viggers: I think
I heard you say that you have four parliamentary draftsmen annexed
to this. You do have a commitment, do you, from their department
that they will maintain the people there because it is a peculiar
operation, as I understand it. I fully understand the complexity
of the system. It is really very difficult for a team to do this.
It really needs to be one person to be responsible. You have the
commitment from the parliamentary draftsmen?Mr Miller:
We have the commitment and a work plan which we have agreed with
parliamentary counsel, which will deliver the product by the time
needed next year.
Q9 Mr Viggers: The main
argument put forward for a single system of Service law is that
it is more appropriate for joint operations. Can you say whether
specific problems have arisen in the past which have caused you
to feel this is now an urgent issue?
Mr Miller: It is
joint operations. It is also the operation of joint units where
it may be difficult to have a single Service clearly in the lead
and therefore to determine which system of law applies and when
somebody from one Service joins such a joint unit. Arrangements
have to be put in place to allow discipline to apply to them from
their own Service. The conduct of joint operations does indeed
add some complications and ad hoc arrangements would be
needed—for example, in the Falklands and Iraq—to provide
sensible disciplinary arrangements, which would be very much simpler
and more directly dealt with if there was a single system of law.
If it would be helpful, we can certainly give you a note, for
example, on some of those arrangements.[1]
Chairman: Yes, please
do that.
Q10 Mr Viggers: The attachment
regulations do not apply to fully joint units, as we understand
it. Did you give consideration to changing the attachment regulations
to give commanding officers such powers rather than to move forward
to a joint decision?
Mr Miller: We did
look at the attachment approach and decided that it did not really
meet the underlying requirement to have all Service personnel
subject to a constant and understood single system. Perhaps I
could ask Mr Morrison to elaborate.
Mr Morrison: Quite
simply, using the attachment regulations does not get rid of the
basic problem that members of each Service are subject to different
procedures, powers, penalties and so on. If you start applying
attachment, it simply means, let us say if a soldier becomes attached
to the Navy, whereas as a soldier he would not be subject to the
possibility of summary dismissal, as a sailor he does, so attachment
does not resolve the differences in the law but instead imposes
on people changes in their legal position when they move to join
the other system or the other Service. In practice, as a result,
attachment has never been used effectively, and indeed the Services
are very reluctant that it should be used because each attachment
involves a change in the legal position of the person attached,
which is then changed again when that person moves back again
to his or her own Service. It obviously is particularly difficult
where you have a joint unit where it is not possible to say which
Service ought to be the one which characterised that unit. If
you have a joint Army, Navy and Air Force unit, which law is to
apply? Should it be the Army; should it be the Navy; should it
be the Air Force? If it does not matter which one applies, then
why have all these minor differences between the laws and the
penalties and powers and so on that do apply? The obvious logic
is that if you can swap people round between Services, at least
make them subject to the same laws all the time.
Q11 Mr Viggers: There
is reference to the Defence Procurement Agency and the Defence
Logistics Organisation which says that a revised structure for
command authority will extend to these organisations. How can
that be when they are basically civilian organisations? What will
the implication be for those two organisations?
Mr Miller: Within
those agencies, there are many military personnel operating and
some of those agencies can be led by military officers. What we
would expect is that the introduction of the single system of
Service law under the TSA would make it easier for disciplinary
arrangements as they apply to Service personnel operating in those
structures to be simplified and to be effectively discharged,
so that if someone is working in the DLO, rather than having to
have disciplinary measures applied by a commander from their Service
who might be outside that organisation, it would facilitate arrangements
set up inside the organisation to apply discipline by the immediate
chain of command.[2]
Q12 Mr Viggers: Is there
to be any change in the legal status of civilians?
Mr Miller: No.
Q13 Mr Hancock: Can I
draw your attention to the issues raised in your memorandum, particularly
around paragraph 25, which deals with harmonisation of offences
and the way in which particularly the Royal Navy would see a significant
narrowing of their ability to deal with matters. I am conscious
that we are about to go to vote and unfortunately when we come
back I will not be with you because I will be taking part in a
debate, so I am not going to hear your answer, but I look forward
to reading it. I would be interested to know if all three Services
could identify those elements of the existing machine that you
consider to be vital to your operational effectiveness. What are
the issues affecting the Navy, because they are the ones who will
have the most changes to deal with?
Mr Miller: We will
make sure that you can read a full answer.
The Committee suspended from 3.13 pm to 3.37 pm
for a division in the House
Mr Miller: I think Mr Hancock's
question was referring particularly to the issue of harmonisation
in paragraph 25 of our memorandum, which is looking at summary
powers. His question was referring to the extent that the Navy
has had to adjust and change particularly its arrangements for
summary justice. Captain Crabtree will now elaborate.
Captain Crabtree:
It is right to say that the Navy has given up a number of powers
and that will be evident from the memorandum that we gave to you.
We very carefully considered, in looking at what we were giving
up, the prize, I suppose is the way you put it, of harmonisation,
and we recognise there are significant benefits in that. We have
also taken into account that the Bill, or the Act, will deliver
benefits in other areas. While our summary powers will be reduced
so that we will have an increase in the number of courts martial,
we believe that is manageable because in other areas in the management
of courts martial and in the composition of courts, there are
changes that will improve the speed to courts martial and the
nature of courts martial. It is a balancing exercise. When you
look at that balance, the loss of powers, we believe, is manageable
in the number of courts martial that will be generated from it.
Q14 Mr Viggers: How many
extra courts martial do you anticipate there will be?
Captain Crabtree:
Looking at the last three or four years, somewhere in the region
of about 30 to 35 a year. In statistical terms, that is probably
about a 50% increase.
Q15 Mr Viggers: Have you
made a calculation as to how many of those will be at sea?
Captain Crabtree:
All courts martial at the moment, or in my time in the Service,
have been conducted ashore. Of course, a number of the accused
come from the sea. I would think about 50% at the moment come
from the sea. There will be a dozen or so ships where accused
will go to courts martial and we will have to fit those courts
martial around the ships' operational programme. If we have the
ability to run courts more effectively and less resource intensive
in, for example, the fact that many of our five-man courts that
we have in the Navy in the future may result in a three-man court,
or three-person court, that gives us more flexibility in composition
and therefore in being able to move quickly to a court martial.
Q16 Mr Viggers: I phrased
my question in a rather slack way. I meant of course; how many
of the offences which will end in courts martial start with an
offence committed at sea? Much was made in previous meetings of
the Select Committee on the Armed Forces Bill, I remember, of
the operational difficulty that would be imposed if the offence
happened at sea and it was not possible to be dealt with in a
brisk and summary manner. How are you facing up to the operational
difficulties there?
Captain Crabtree:
My answer actually is probably in many respects the same because
while I cannot give you a precise figure as to the number of offences
that are committed at sea, while an individual is in the ship,
a large number of individuals who go to courts martial are serving
in ships and they commit offences while they are ashore or on
runs ashore somewhere. The witnesses are from the ship, the accused
is from the ship, the character witness may be an officer from
the ship, and all those individuals will have to be removed from
the ship. It is as much where the individual is serving and where
the witnesses are as opposed to whether the offence is committed
on board, for example. A percentage of offences certainly are
committed on board. I can come back and give you an indication
for any one particular year, if you would like that.[3]
Q17 Mr Viggers: My concern,
of course, is that a case which was previously being handled in
a summary manner will now lead to a court martial later and this,
as it were, causes a cloud to hang over the accused, and indeed
no doubt the witnesses and everyone else involved. How are you
going to cope with that?
Captain Crabtree:
We recognise precisely that problem, which is why I mentioned
the balancing exercise previously. Part of that balancing exercise
was the advantages that would be delivered by harmonisation. Part
of the balancing exercise was the improvement to the courts martial
process that will deliver more expeditious courts martial, so
that we will not have to wait three or four or six months, or
whatever it may be. We have selected the powers we want to retain,
and they have been agreed by all three Services, on the basis
that these are the powers and punishments and the offences that
most frequently occur. Where we have given up powers and offences,
that is on the basis of a very careful statistical analysis and
discussion with our lawyers and our commanders to identify what
we can give up with least difficulty. As I say, it is something
in the region of about 30 trials, but we believe that is manageable
for the greater prize.
Q18 Mr Viggers: How many
people are taken off duties because they are to be subject to
a summary trial or a court martial in due course? I assume a small
number will be confined, will be locked up, a very small number.
Others may be taken off duties. Have you worked out how many in
total will be taken off duties under the new regime and have you
got the numbers taken off duties in the previous regime?
Captain Crabtree:
I think it is fair to say that there should be no change in that
respect. If an individual has committed an offence which results
in him going to summary trial, then if he deserves to be locked
up because there is a concern about whether he will absent himself
or commit further offences—Bail Act type considerations—and
those apply whether it is a summary trial or court martial type
matter. As far as moving people off ship to wait for trial, I
do not think there will be any great change. There might be changes
in terms of two or three people but not many, and that was a factor
that we took into account again in deciding what powers we could
afford to give up and what offences we would want to retain as
available to the CO. I think we have optimised what the Navy can
afford to agree to in what is a harmonised package.
Q19 Mr Cran: I am going
to ask a few questions about the Army, in which I am quite interested,
and so I guess it is you, Brigadier, I am looking at. The Committee
is quite interested in the practical effects of your proposals
at the level of the commanding officer, as it were. I take an
old-fashioned view that whenever you have new legislation, it
means work for everybody. The point I think the Committee would
be quite interested to know is: how many additional summary cases,
I suppose one could say, a year will commanding officers have
to deal with? Is it possible to compute that?
Brigadier Andrews:
I do not think that there is really any science that would let
us give you a reliable figure, but I can say confidently that
it would be very few. The Bill is constructed on the basic powers
that a commanding officer in the Army, and indeed in the Royal
Air Force, already has. The maximum penalty that the commanding
officer can impose has been extended and of course the range of
offences the commanding officer may deal with summarily has been
extended. I think that we would see commanding officers exercising
their judgment based on the advice and using much the same judgment
as they do now about which offences they should deal with summarily
and which offences they should refer to higher authority with
a view to trial by court martial. Whilst this Bill and these powers
may well allow a few more offences to be dealt with summarily,
those cases where it is within the commanding officer's capability
based on the legal advice he received, I think a commanding officer
in the Army will recognise these powers and it is very much business
as usual.
1 Ev 61 Back
2
Ev 63 Back
3
Ev 63 Back
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