Examination of Witnesses (Questions 102-119)
2 FEBRUARY 2005
MR IVOR
CAPLIN MP, MRS
TERESA JONES
AND MR
HUMPHREY MORRISON
Q102 Chairman: Welcome to you all. This
is our second session on this subject and we are pleased to be
involved in the early stages. Minister, are there any introductory
remarks you would like to make?
Mr Caplin: Chairman, thank you
for those remarks. First, I would like to thank the Committee
for agreeing to undertake this early investigation. It was from
a discussion that you and I had and an exchange of letters that
I thought it would be useful in the interim period for the Select
Committee to be able to take a view on some of these matters.
Q103 Chairman: Thank you.
Mr Caplin: The officials joining
me you have seen before when you took evidence on 27 October 2004.
For completeness I will introduce Teresa Jones, who is head of
the Bill team and Humphrey Morrison who is legal adviser to the
Bill team for the MoD. I thought it might be useful, Chairman,
if I outlined a few principles for the Bill. I will not be too
long, I know how Select Committees do not like long introductions
to ministerial evidence.
Q104 Chairman: It never saves questions,
we ask the questions anyway.
Mr Caplin: Just let me say a few
introductory remarks, if I may.
Q105 Chairman: Please.
Mr Caplin: First, Service law
is essential to the continued operational effectiveness of our
Armed Forces. We are absolutely clear at the MoD about that. The
system that we have has to be fair, consistent, efficient and,
of course, compliant with the European Convention on Human Rights.
We do ask an enormous amount from our Armed Forces and we owe
them nothing less in terms of the processes. This Bill will give
Parliament a real opportunity to improve the existing provisions.
The piecemeal amendments over the years have brought about useful
changes and they have helped us to keep Service law in line with
developments in civilian law but the result is an incoherent whole
which does not reflect and support as well as it could the way
in which our Armed Forces operate in a modern world. The Strategic
Defence Review, which you will recall with fondness, I am sure,
Chairman, actually stated that a single system of Service law
that operates equally well in single and joint Service environments
would better support the Services which are increasingly deployed
and trained together. It will enable Commanding Officers to apply
discipline fairly, efficiently and consistently to all under their
command of whatever Service. The proper protections and safeguards
that ensure a fair system will be clearly enshrined in this legislation
and we can make improvements to processes which will help ensure
that justice is not unduly delayed. I want to emphasise this afternoon
that the principles have the full support of the Service chiefs.
Harmonisation and modernisation of summary and court martial powers
and processes follows extensive consultation and discussion at
the Ministry. The approach now has been evolutionary not revolutionary.
The proposals on discipline do not affect the fundamentals of
the current system in any way. They preserve its focus on the
Commanding Officer with the majority of cases dealt with summarily
and more serious cases tried by court martial. But I do not under-estimate
the size of this task. There is an enormous amount of detailed
work going on to ensure that we make the most of the opportunity
we have now and we must not waste this opportunity, we need to
ensure we get this Bill right. In parallel we recognise, also,
that if this is going to be as successful as it should be we need
to devote resources to its implementation, and we will. A modern
and fair system of Service law, Chairman, is as important to supporting
operational effectiveness as having the best trained and equipped
forces as possible. A harmonised approach to Service law is about
enhancing operational effectiveness. That is the prize. Thank
you, Chairman.
Q106 Chairman: Thank you very much. That
is well received. Minister, when you wrote to me on 5 October
you acknowledged that this was a very substantial project and
that you were operating to a demanding timescale; I looked back
with some irony, at least a decade before you came on the scene
when this legislation was promised, so although you may have been
operating on a demanding timescale, the MoD overall has been operating
on an incredibly relaxed timescale. I am really glad before I
bite the dust I will be able happily to observe the passing of
this piece of legislation. You have given us two memoranda relating
to the Tri-Service Armed Forces Act which set out the main proposals
and progress that you have made in developing them. However, it
appears that there is still, as you have implied, a lot of work
to be done before the Bill can be introduced. I wonder whether
it is possible, Minister, for you now or later to give a commitment
that if there is a substantial addition to what you are proposing
at least the next Defence Committee will have the opportunity
of perhaps looking at the addition to what you have been able
to achieve up to this point in time. Can you drop us a note as
to whether that is feasible?
Mr Caplin: Let me say, firstly,
I hope you are not planning to bite the dust just yet.
Q107 Chairman: No, I am not planning
it, no. Not quite yet, next Parliament.
Mr Caplin: I anticipate that although
there is a lot of work to be done, officials are very clear that
we have a timetable to meet. This is supported strongly by ministers
and the MoD. We need to try and ensure that the timetable is met.
We have a commitment to introduce this legislation in the next
session of Parliament, that is still our intention. If there are
major changes that would change the nature of the Bill in a substantial
way then I think it would be right and proper for me to consider
again whether or not we had to come back to the Select Committee
for another look.
Q108 Chairman: Certainly we will not
want to hold up the process.
Mr Caplin: I appreciate that and
I appreciate the work that has gone on previously on these issues
where, as you say, there has been some time which people have
spent looking at these issues.
Q109 Chairman: I know there is very little
legislation that is passed by the Ministry of Defence and I think
it is quite helpful if it comes to this Committee first because
once we have looked at it and said "fine" then it gives
the Minister enormous ability to be able to say "Well, look,
this Bill has been examined by a Committee in the House of Commons
and they have agreed to its content". I cannot imagine why
the process is not used considerably more frequently. Certainly
I accept what you said, Minister.
Mr Caplin: Okay. I do not think
I need to comment on that.
Q110 Chairman: How confident are you
that the Bill will be introduced in the autumn of this year? You
seem pretty confident?
Mr Caplin: I am confident. Just
let me clarify what I have just said. Recently I have had further
discussions with the three Service Principal Personnel Officers
and we have discussed the introduction of the Bill. We are confident
about meeting the target that the House has asked us to meet which
is to introduce this in the next session of Parliament. We aim
and expect to be able to do that. Of course implementation will
take place after Parliament has completed its deliberations but
now we have a clear timetable and, yes, we intend to meet it.
Q111 Chairman: I know this is a hypothetical
question, so I can save you an immediate answer, but should there
be any delays—and there could be—would it have any
impact upon the operational effectiveness of the Armed Forces
if it is not introduced, as we hope it will be, in the autumn
of this year?
Mr Caplin: I think we have to
reflect that the introduction of a Bill into the Commons in the
autumn of this year is not the same as changing the Service law
in the autumn of this year. Clearly the Service law structure
that we do have is affected, it is compliant with the ECHR. We
have been through the changes we had to make, for instance, in
the Navy this time last year; therefore I think we have a system
that is coherent. A slight problem is that in terms of tri-Service
we need a better system which reflects the whole and allows the
Services not to be stove piped, if you like, but to operate on
that tri-Service basis which the Committee will recognise.
Q112 Chairman: Could I ask Teresa—who
is very well known to us in a very positive way—can you
give us some indication of the process which was involved once
you started working on this? What kind of working parties were
there previously once Treasury Counsel was withdrawn and the whole
process came to an end? How did it get up to the level of ministers?
The MoD does not do much legislation so it must be, if not unique,
pretty unusual?
Mr Caplin: Just before Teresa
answers, we have done quite a bit since I have been in post with
pensions and compensation.
Q113 Chairman: You know what you are
talking about.
Mrs Jones: Chairman, yes, it is
always pretty exciting for the Ministry of Defence when it has
legislation, challenging as well. This process did start quite
a long time ago because we always expect to have a Bill before
Parliament every five years renewing the Service Discipline Acts.
Work really started in earnest on a Tri-Service Bill back in about
2001. Most of the work involved a great deal of consultation with
the Services themselves at the beginning because this is an enormous
change for the Services to move to a single Act. A lot of that
consultation, which we wrote about in the first memorandum, included
the experience of countries overseas. I am sorry to say that most
of the work took place through a committee called SDWARP, which
is the Service Discipline Acts Review Working Party. It was through
that committee structure, which involved all three Services, and
a central team, that we really developed most of the policies,
I think, for the Tri-Service Bill. It is a system that I joined
in 2003 when the work was well underway. As we have effectively
a guaranteed place in the parliamentary programme every five years,
because Service law runs out every five years, we could plan at
least with some confidence on that basis, together with the encouragement
of Parliament to pull our finger out. In terms of the process,
because of knowing we have a place in the parliamentary programme,
it is easier to secure the service of the parliamentary counsel
at an earlier stage than some of the Government departments would
enjoy because we do not have quite the same struggle in terms
of finding ourselves a place in the parliamentary programme. Parliamentary
counsel is engaged with us at the moment, very heavily indeed,
in doing the first draft of some of the clauses. Our responsibility
as a team is to draw the policy together, get the clearance that
we need both within the department and with other Government departments
that are affected, and it is that process which we are engaged
in at the moment.
Q114 Chairman: At what stage, Minister,
do you get involved?
Mr Caplin: I have taken a close
personal interest in the whole process, even down to our exchange
of letters, memorandums, et cetera, et cetera. I should emphasise
that colleague ministers, including the Secretary of State, are
taking an active interest, also, in areas of the Bill and I think
that is right because my noble friend, Lord Bach, will meet with
peers tomorrow to talk to them on a similar basis to that which
we are having today. All of us are engaged and obviously Mr Ingram
will be involved because of his responsibility for operations.
It is essential that from a ministerial team perspective we are
all across this and I can say to you that we are and we are all
engaged in the processes.
Q115 Mr Cran: On to the question of consultation.
I do not think any of us can disagree that good employers will
consult their, I suppose one has to use the word, "employees"
on this occasion. Therefore that begs the question how much consultation
the MoD has done? Certainly you acknowledged that you had to do
it in your memorandum at paragraph 13 but I have to say to you
that the Committee is out and about quite frequently these days
and on our last two visits to Cyprus and Northern Ireland we were
hard put to find anybody with much knowledge about what it was
you were about. Just talk us through what this consultation exercise
has been? How profound has it been and how many of the employees
do you think you have got through to?
Mr Caplin: That is a very interesting
question, Mr Cran, if I may say because I would expect very few
of our current serving members of the Armed Forces to know what
we are doing at the present time. This has been very much about
bringing together the chiefs and bringing the officers and understanding
the processes that Teresa and her team can put to ministers. Having
said that, there will be significant internal and external consultation
and public relations' campaigns once we get the Bill a bit further
on. For instance, I think certainly when we receive your initial
views as a Committee about the Bill that will be one of the areas
that we will start to look at, placing articles in our Service
newspapers and developing a coherent strategy for consultation.
I think that is probably the right approach at this stage, given
the early stages that we are at. If the Bill was in Parliament
I think the criticism that you are suggesting to me maybe would
be more valid but because we are in a very early stage I would
not expect lots and lots of our soldiers, for instance, and the
infantry to know what was going on.
Q116 Mr Cran: I should say to you I mean
no criticism whatsoever, I am trying to get at what you are doing
and what you are about.
Mr Caplin: Yes.
Q117 Mr Cran: Therefore it would really
be wrong of me to use the word consultation, would it not? What
you have been doing is consulting at a particular level within
the Armed Forces?
Mr Caplin: Yes.
Q118 Mr Cran: What have you been consulting
them about?
Mr Caplin: Teresa can answer some
of the detailed questions on those discussions because she was
conducting these before I came into post. From my own perspective,
every time I have met the Principal Personnel Officers and DCDS
(Personnel), we have a natural discussion around the table about
the progress of the Bill, issues that maybe we need to look at
in a strategic sense which we can feed back then to Teresa and
the team. That has been a very effective process, I think, because
ultimately those PPOs and chiefs and the Commanding Officers are
the people who have to make this work in a couple of years' time.
Teresa will give some background.
Mrs Jones: Sadly, actually, I
was not around for that consultation period. All the travel was
done before I arrived. There was extensive consultation at the
early stages and not just with officers. As I understand it, the
consultation took place—I think Humphrey Morrison was involved
in some of that and he will be able to add to this—in a
sense at the beginning so that our proposals could be framed with
the result of that consultation in mind. Certainly what we are
proposing now is to move to an informing stage but we do bear
in mind that implementation will take quite a long time and there
is a danger of going too early, telling some people about a system
of Service law which is not going to come in for a few years.
Humphrey Morrison may like to add some comments about the consultations.
Mr Caplin: Just let me amplify
this because I think this is quite interesting. These discussions
were going on in 2001-02, that is four years ago. Around 70,000,
ie a third, over a third, of our Armed Forces will have moved
on, back into the civil sector, into civilian life since then.
Timing of this consultation and discussions in terms of public
relations are very important given that we have to operate the
systems of Service law that we have today. It is important that
is understood by today's Armed Forces. There will be an occasion
in the future when we start to talk more about those people who
are going through the Armed Forces in 2006-07 when we implement
this new system of law. I do not know if you want to add anything?
Mr Morrison: A little bit. Yes,
we spent at least 18 months visiting units and commands both in
Britain, Northern Ireland, Kosovo, Germany, Cyprus and elsewhere.
We discussed at all ranks, from the senior command to open meetings
with all ranks. In some cases we were able to subdivide and consult
with junior ranks then NCOs, warrant officers and officers, all
separately. This was not obviously consultation on the Bill, it
was asking them about their views of discipline, the way discipline
worked, their views of the other Services' disciplinary arrangements.
Where we were meeting joint units—the JHFJoint Helicopter
Force, for example—we were able to talk more specifically
about their perceptions about the differences in the way they
were treated because a different law was being applied. I describe
that more as a fact finding exercise on a very large scale but
which, certainly, at the same time, had a very significant impact
on what ultimately we proposed, even getting down to quite a lot
of the detail in terms of summary jurisdiction, the degree to
which things should be harmonised, how COs are to operate where
you have a joint force and so on.
Q119 Mr Cran: Just so that I can get
this clear in my mind, I have had two propositions thus far, a
consultation exercise, which has very clear connotations, and
then you used the word fact-finding exercise. I am not sure I
understand that the two are coterminous. Were you asking for opinions,
that is what I want to know?
Mr Morrison: We were. We were
asking for experiences, information, opinions and suggestions.
It was not consultation in the sense that we were not putting
to them our proposals and saying "What do you think of those"?
I was trying to draw a distinction between that sort of exercise,
which is the next stage, and the sort of, if you like, consultation
or fact-finding which was making sure that we understood how people
at all ranks saw the problems, not necessarily just the problems
but what they thought was good about their existing systems, problems
of efficiency, paperwork, all sorts of aspects. I would describe
it as predominantly fact-finding but with the emphasis on getting
people to give us not only purely factual information but their
opinions on the good and the bad in the system.
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