Examination of Witnesses (Questions 80-99)
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
Q80 Mr Havard: I am glad
to see they are not going to be calling a peer in that context
to be one of their mates, as opposed to one down the other end!
There might be one of them later on. I want to ask about this
business of redress of complaints, if I could. As I understand
it, within the structure currently an individual can escalate,
through the processes you describe, a complaint to the highest
level up to the Service board and so on. What they cannot then
do is take cases to employment tribunals, for example. In the
memorandum from the MoD it says that consideration has been given
as to whether Service personnel should be brought within the scope
of ordinary contract and employment law and so on. Can you tell
me more about that consideration and what was the extent of the
consultation that fed into that?
Mr Miller: I might
come back to the process of consultation in a moment but the key
issue we were concerned with here was whether we should be moving
beyond the current position where there are, of course, rights
to go to tribunal on grounds of discrimination, etc, and broaden
that out into the other areas of Service life and the strong feeling,
and I think this is widespread through the Services, was that
to do so would be inimical to the fundamental relationship between
members of the Armed Forces and the Service where there is a requirement
for discipline in the Service and for people to, in effect, obey
orders irrespective of whether they wished to or without questioning
those orders, and to introduce into that relationship a degree
of contractual relationship would be very hard to make it compatible
with the effective maintenance of a disciplined armed Service.
Q81 Mr Havard: Can I add
a supplementary because I am conflating two questions, and it
is difficult to do it out of order. As I understand it, the engagement
of Service is not, in the strictly legal sense, a contract so
was this part of all of this consideration? Could you embellish
on whether that was the driver, or was it something else? What
was involved in that consideration?
Mr Morrison: Do
you mind repeating the question? I am sorry.
Q82 Mr Havard: As I understand
it there is contract law, in more general terms, there is employment
law which relates one to another and often interrelates, but the
engagement of Service is not a contract in the sense that Jo Bloggs
would have a contract of employment which would be broader than
just simply basic employment terms with Marks & Spencers or
whatever—that is not the same relationship as far as Service
personnel are concerned. Consequently how they relate to this
whole process of redress and other tribunals and so on you have
been considering, and you are saying there are certain things
you feel are inimical with other obligations they have, but I
wanted to get a little bit more about what was in that consideration
and perhaps we can come back to whom you did consult?
Mr Morrison: I
hope this is helpful, and forgive me if I do not give you the
information you are looking for, certain aspects of employment
law do apply to Service personnel. The most important by far is
the law on discrimination, and in that area it was recognised
that there was nothing in the Service disciplinary relationship
which could possibly justify keeping members of the Armed Forces
away from an independent judicial decision on whether they had
been discriminated against, and therefore members of the Armed
Forces, as does everyone else, have access to employment tribunals
in relation to discrimination. In relation to the much more general
position, the normal everyday relationship, if you like, between
the Army and the individual Service personnel, I have to go back
to what Julian has said; there the relationship is seen as essentially
one of discipline and not of "What have I agreed to and what
have I not agreed to", and the urgency, if you like, of that
disciplinary element, the importance of the immediate obeying
of lawful orders without questioning whether it has been agreed
or not, the need to be able to enforce that not by sacking someone
but by some sort of immediate disciplinary measure, led us to
the conclusion that in areas apart from discrimination that disciplinary
relationship has to be structured first and foremost around the
statutory relationship of command and discipline and not by examination
of what has and has not been agreed enforced by things like dismissal
or other employer-type remedies. Does that help?
Q83 Mr Havard: To a certain
extent because I am beginning to understand a little bit more
about how you approached it which was part of the question. It
seems to me that in relation to human rights legislation there
are things about equality and fair treatment which we have a particular
process for dealing with through employment tribunals or whatever.
Service personnel are in a particular position; therefore there
is a particular set of obligations in relation to how they can
be dealt with. In terms of terms and conditions as to whether
they get pay and rations on time and other things then maybe not
so, so there is a separation then, presumably, on broad headings
of activity that you have to look at as to whether they can be
said to be compliant by the fact that there is a process in one
area, but does the other process cater for all the other terms?
I am just trying to get a feel for who is involved in all of that
consideration.
Mrs Jones: There
are two points here. The point you have drawn out, that in some
areas Service personnel can go to an employment tribunal where
it does not interfere with this particular disciplinary relationship,
is clear but for all the other areas where there is not that protection
it makes it all the more important that we have a proper and effective
and transparent system of redress, which is why there is statutory
provision for a redress of grievance procedure within the Armed
Forces which they can use. From that point of view, therefore,
in those areas where we need to protect the relationship between
discipline and command, the importance of having a system of redress
is clear. In terms of the consultation, I do not think I can make
very much more of that. The consultation has been very much within
the armed Services themselves certainly, as we developed this
process—I was not there for this particular bit, I am relieved
to say, but all the proposals we have for the Bill have been matters
which have been exhaustively discussed between the three Services
as part of the joint approach, and so the consultation has not
particularly, I think I would be right in saying, taken place
with external bodies. It has been, "Are we clear that there
are some areas of the relationship in terms of command and discipline
that must be maintained in the way we have them at the moment?
Can we go further than we have at the moment in terms of being
able to apply directly to employment tribunals, for example, in
relation to discrimination cases?" So that consultation has
been internal rather than with outside bodies.
Q84 Mr Havard: I suppose
once this process is running there will be external actors, as
it were, in the picture who will look at it and make comment on
it anyway. Presumably you will have some process of review examining
whether or not it is efficient and whether you need to change
it. Do you think it is a good idea that maybe you may bring in
some external actors to perhaps advise you in terms of reviewing
it, or commission them to look at it, because there is experience
elsewhere about how these things could work that might be useful?
Mrs Jones: I would
not rule that out. There are a number of ways in which the Services
consult their own personnel about how particular processes work
but I do not think there are any plans at the moment to bring
in external people to see how the redress of grievance process
will work.
Brigadier Andrews:
Perhaps I could help here. In the Army three years ago we set
up an office for the standards of casework, because it is the
Director's, that is the Brigadier's job to look at how efficient
and effective we are in following our own disciplinary rules and
rules of complaints, and he does that and, of course, the work
he has done has informed our consultation within the formulation
of the Bill here, so we already have self-regulation of our own
procedures here.
Q85 Mr Havard: That is
very helpful but one of my questions was going to be on the question
of other countries. You have consulted other countries and there
is a list of them in the memorandum, and there may be others as
well, but the position of whether or not people can, if you like,
prosecute any arguments they have in contract law and employment
law in different ways presumably was part of the consideration
that came into the advice you got when you consulted other countries
about how they do it. How do Canada, United States, Australia,
New Zealand handle this and how is that fed into the process?
Do they do it differently, do some of them not have the relationship
you are describing?
Mrs Jones: I think
it is generally fair to say that in Commonwealth countries and
in the United States they also do not have contracts of employment
in the way that we would have considered. And certainly in our
consultation with those countries, and in particular Canada, who
has done a very wide-ranging review of its disciplinary powers,
we have drawn quite heavily on their experience in relation to
their redress of grievance procedure in drawing together the proposals
that we are now looking at for our own.
Q86 Mr Havard: Forgive
me, yes, you have done that part of it but there is also this
other part of it which is how they relate in terms of being able
to press all the other things beyond the simple disciplinary matters.
It is the contract and employment law, which is slightly different.
Mr Morrison: I
think redress will cover, as it does at the moment, any case in
which any member of the Armed Forces feels him or herself wronged
or unfairly treated in anyway. It is not limited to disciplinary
situations, and I think that is the same with Canada. Their redress
system is also very wide-ranging. But in that sense, although
there is still work to do on the structure of redress system,
it will certainly be broad-ranging in the same sort of way that
the existing redress provisions are broad-ranging. So we have,
if you like, the quasi criminal jurisdiction which can result
in an appeal; everything else that is not covered by appeal, any
sense that somebody has been mistreated, if you like, is subject
to redress and at the moment it can be literally on anything from
pay policy to promotions or discharge or whatever.
Mrs Jones: Can
I just add that I have been reminded that as part of the consultation
process we did consult the police about their systems of complaint,
and also ACAS.
Mr Havard: I would like
to pursue this further but time does not allow it. There was an
argument back in the early 1900s about this, was there not? We
have uniformed Services that are not members of trade unions,
so this argument has been run round once or twice before. There
is a history to it. Maybe it comes into the questions that my
colleague, Mr Gapes, was asking earlier on about clarity and about
description, about separation, demarcation and people being clear
exactly which things are included and not, why they are not and
how they are dealt with if they are not?
Q87 Mr Viggers: The memorandum
says there is to be a Tri-Service Redress of Complaints Panel
but that further work will be needed on the detail. Can I probe
as to how we are getting on so far and where we think we are going?
How is the further work progressing and when do you expect to
complete this?
Mr Miller: It is
progressing. There is a working group looking at how best to develop
the redress arrangements. It is, indeed, likely that we will come
up with a new panel; that panel will, we hope, lead to some improvements
in the redress process, that it will lead to speedier redress,
that it will remove from the Service boards some of the issues
which at present they have to deal with which are not perhaps
always of terribly high significance: that it will be a system
which is perhaps more clearly separated from the chain of command
and has a more visible degree of independence in cases where that
is appropriate, and in particular that it is a system of review
by a panel which will be empowered clearly to take appropriate
action where redress is appropriate, and that we hope it will
be in a position to give those complainants who are found to have
a justified case a speedy and effective remedy.
Q88 Mr Viggers: Have you
decided how many members of the panel there will be yet?
Mr Miller: We have
not decided the details of the panel but it is likely to be something
which we can constitute from a variety of people who will be providing
a pool at a, in military terms, Two Star level to appear on the
panel. It will be, I expect, able to draw on military and civilian
members and to adjust its constitution according to the particular
redress case that is coming forward.Mrs Jones: In
general we would expect the membership to be about three.
Q89 Mr Viggers: And these
will be Two Star, or possibly One Star?
Mrs Jones: Two
Star.
Mr Miller: Normally
Two Star. I think you are picking up the reference in the memorandum
to the possibility of involving One Star.
Q90 Mr Viggers: Yes. I
was wondering which arms these would come from? Might there be
a predominance? I would imagine a Special Forces person would
rather have a Special Forces person on the review panel than a
submariner. Is there likely to be a predominance of those with
legal training and personnel experience?
Mr Miller: I do
not think we have really got our proposals for the redress panel
in a sufficiently developed state to give you definitive answers
on these points but we would certainly expect there would be sufficient
scope in the pool of panel members to ensure there were people
of appropriate background and expertise to deal with individual
cases as they came forward.
Q91 Mr Viggers: Because
to get that appropriate expertise and experience they probably
need to be personnel-trained rather than dagger-in-the-teeth,
and I wondered whether you will be seeking to get a cross-section
of the Armed Forces on the panel, or whether these will be people
who are specifically trained in sitting on panels?
Mr Miller: I do
not think we are looking at people who are going to be full-time
panel members, but people who will have day jobs but expertise
which will be brought to bear usefully in that sort of panel.
Q92 Mr Viggers: Can I
ask about the constitutional relationship between officers and
the Sovereign? As I understand it from the memorandum it is made
clear that issues of significance like dismissal or issues of
that importance might still go through to the Sovereign, whereas
other issues will be stopped at a lower level. Can you tell me
what happens when an officer successfully petitions to the Sovereign?
Mr Morrison: The
case must have first gone to the Board, and if a petition then
is made to the Sovereign it is put through the Secretary of State
to the Sovereign who acts in her normal constitutional position
taking advice from ministers, but she can look at any aspect of
the case put to her and can give any instruction that she thinks
appropriate. In other words, the person petitioning does not have
to ask for a particular remedy or allege some legal defect or
anything like that, so it is a very broad range of activities
of actions that Her Majesty can take. Clearly at the same time
there is a recognition constitutionally that she has entrusted
the basic decision on these matters to the Defence Council and
that, therefore, the power should be used sparingly otherwise
there could be scope for, in the event, executive interference,
in the broader sense Crown interference, in the process, and it
has been reckoned for 100 years that the Sovereign's involvement
in these cases has to be where it is manifest that justice for
some reason has not been done by the Defence Council rather than
her acting as a re-hearing from the start of the whole case. So
it is a fairly limited procedure in which, as I say, she is not
looking at the whole case afresh but seeing if there are grounds
for it to be clear that justice has not been done. In that case,
she can take any action she thinks appropriate.
Q93 Mr Viggers: But she
takes advice from ministers?
Mr Morrison: Constitutionally
she does, yes. It is not a personal power of a Sovereign.
Q94 Mr Viggers: So it
is not, as it were, the prerogative of calling for Mr A or Mrs
B to form a government from which she consults her own advisers?
Mr Morrison: No.
She consults the Secretary of State.
Q95 Mr Viggers: Will all
proposals relating to the redress of grievances set out in the
memorandum be included in the Bill? Do you yet know?
Mr Miller: I think
the answer is that we do not have the proposals fully developed
yet but it is not clear that all of them will need to be in primary
legislation.
Mrs Jones: A bit
like now, the right of redress at the moment is covered in one
section in each of the three discipline Acts. Underneath that
there are at a lower level the procedures and so we would not
envisage the full system of redress to be in the Tri-Service Act,
no.
Q96 Mr Viggers: And is
there a procedure whereby you take the view of serving personnel
officers and other ranks about the proposals you have for disciplinary
procedures?
Mr Miller: In terms
of the proposals which we are now developing for redress?
Q97 Mr Viggers: Yes, specifically
and generally?
Mr Miller: Well,
that is part of the general process. It is a very wide consultation.
Brigadier Andrews:
We have certainly within the Army explored in a number of ways
how we, over the years, have developed our disciplinary procedures
and we test the fairness, the perception of fairness, in our own
continuous attitude survey where we ask our people, a significant
number from time to time on a regular basis, "Do you feel
that Service disciplinary procedures are fair? Have you been treated
fairly?" So not only do we consult on how we should develop
our procedures; we also test them as we go.
Q98 Rachel Squire: I want
to ask you about Boards of Inquiry. I understand it is envisaged
that the Tri-Service Act, subject to on-going work, should provide
for a single system of Service inquiry encompassing present Boards
of Inquiry and regimental unit inquiries extended to cover the
Royal Navy, so quite a radical proposal for the Royal Navy. The
memorandum currently says this is going to carry on with work
progressing, so can I ask those of you who would like to comment
what your views are and how the work is progressing?
Captain Crabtree:
The principal difference between the Royal Navy and the other
two Services at the moment is that our power of Board of Inquiry
is in prerogative, whereas the Army and the RAF's is statutory.
The reality is that we are pretty close together in many respects
because once one goes below and looks at the rules we have in
place there is a degree of commonality. The proposals that are
emerging at the moment will result in Boards of Inquiries in circumstances
where you would have Boards of Inquiries at the moment, so no
real change. It is just a harmonisation of the system and it will
not affect the number or the sorts of circumstances where we would
have them, but we see sense in harmonisation and we see sense
in adopting some of the proposals which relate to what the other
Services do, for example, the right or requirement to take an
oath in giving evidence. We do not do that at the moment but we
listen to what the other Services have said about the advantages
and we are entirely happy to go down that route. So it is not
a radical change, I do not think, in reality for the Navy.
Q99 Rachel Squire: So
you are being positive?
Captain Crabtree:
We are being positive.
Brigadier Andrews:
I think that the work we have done on Boards of Inquiry here is
a really useful harmonisation. It gives us a straightforward,
single, understandable system that we can put in place and use
effectively. This is, for us, a really useful progress.
Air Commodore Amroliwala:
The variety of inquiries we have had in the past have been sometimes
ill-defined in the sense of which inquiry might be most suitable
for which circumstance. This is going to bring far greater clarity
so those who are both running inquiries and those who are subject
to inquiries will have a far better understanding of the nature
of what it is we are doing.
Rachel Squire: Thank you.
I think that answers that particular topic.
Chairman: We will end
at this point; you have suffered enough!
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