Select Committee on Defence Second Report


2 The case for a Tri-Service Armed Forces Act

The Service Discipline Acts

16. The disciplinary systems of the three Armed Services are underpinned by the three Service Discipline Acts (SDAs): the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957.[19] The current SDAs 'last only for a year at a time',[20] but may be renewed each year for a maximum of five years by Order in Council. Before the end of the fifth year, the Acts must be renewed by primary legislation—the quinquennial Armed Forces Act, the last of which was in 2001. The quinquennial Act renews the SDAs as well as providing an opportunity to make any necessary amendments to the existing legislation.[21]

17. The SDAs enable offences allegedly committed by persons subject to naval, military or air force law to be dealt with by the Services. They apply worldwide to members of the Armed Forces and, overseas, to certain categories of civilians (including their families) accompanying them. All offences against Service discipline and against the law of England and Wales may be tried, except for certain offences (such as murder, rape and war crimes) committed in the United Kingdom.[22]

The Service Discipline System

18. The guiding principle relating to discipline within the three Services is that command and responsibility for discipline should be aligned. The Commanding Officer (CO) of a Unit is at the heart of the discipline system. Any alleged offence is reported in the first instance to the CO who is responsible for ensuring that the matter is investigated. The CO can consider whether:

19. In considering the second of these options, the CO has to consider whether the case is appropriate for summary disposal, i.e. for the CO to hear and decide. The CO and Service legal advisers have to take into account the limited range of punishments at the CO's disposal and the complexity of the case.

20. The summary hearing before the CO is not considered compliant with Article 6 of the European Convention on Human Rights (ECHR) for a number of reasons, including the CO's lack of independence, and the absence of legal representation for the accused. The overall system however is considered to be compliant, because of the accused's right before any summary hearing to elect trial by court martial, with the court martial having only the powers of punishment of a CO; and the accused's right after a summary hearing to appeal to the Summary Appeal Court (SAC). Both courts martial and the SAC are considered to be ECHR-compliant.[24] There are a number of differences between the arrangements for summary hearing in each of the Services, and particularly between the Royal Navy on the one hand and the Army and RAF on the other. A Royal Navy CO is able to deal with a much wider range of offences than his counterparts in the other Services and to apply more severe punishments.[25]

21. The procedures at a court martial are broadly similar to those of the Crown Court, though courts martial deal with a wider range of offences since they also cover the sort of offences that would be dealt with by a magistrates court. The Judge Advocate performs most of the functions of a Crown Court judge, but there is a panel of Service officers and warrant officers instead of a jury. The 'panel decides finding'[26], and the Judge Advocate and panel together decide the sentence. There is a right of petition to the Defence Council and, if that is denied or out of time, the right to appeal to the Courts Martial Appeal Court. In addition, there is a procedure known as Service Review whereby all court martial convictions are reconsidered by the Service Review Authority on behalf of the Defence Council, both for legal correctness and appropriateness of sentence, whether or not a petition has been made. This procedure can lead to the conviction being quashed or to sentences being varied, but not to any increase in sentence. After a number of changes to the system, pursuant to adverse judgments of the European Court of Human Rights, courts martial in all three Services are now considered to be ECHR-compliant. Again, there are some differences between the Royal Navy on the one hand and the Army and RAF on the other.[27]

Benefits of a Tri-Service Armed Forces Act

22. Mr Caplin told us that the Tri-Service Armed Forces 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.[28]

23. He added that 'A modern and fair system of Service law… 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'.[29]

24. MoD sets out the arguments for creating a Tri-Service Armed Forces Act in its Memorandum as follows:

  • A single system of Service law would be more appropriate for Services that are increasingly deployed on joint operations and for which they train together. Within joint commands and units the basic principle should be that Service personnel should be subject to the same systems and the same rights and penalties, except where a special rule applying only to the member of one Service is essential.
  • As the attachment regulations[30] do not apply to fully joint units, the commanders of such units do not have disciplinary powers over all those under their command.
  • In joint units with a single Service lead, there is a reluctance to use existing attachment regulations which, to an extent, enable all personnel to be subject to the lead SDA. A principal difficulty is the difference in COs' powers under the individual SDAs. The effect is that personnel tend to be returned to their own Service for disciplinary action
  • Although many of the disciplinary provisions in the individual SDAs are essentially the same, the existence of the separate Acts makes the use, interpretation and amendment of the legislation more complicated and perpetuates different interpretations on a single Service basis.[31]

25. The Memorandum states that:

Against this background, maintaining separate legislation for each of the Services or disciplinary systems with substantial difference between them makes little sense. The increasing number of joint organisations and operations and the uncertainty and potential for delay and discontent that can arise from applying separate systems within such structures and environments require a new approach. Bringing procedures into a single system of law that will by definition operate equally well in single, bi- or tri-Service environments is therefore a key objective.[32]

26. We asked whether consideration had been giving to improving or strengthening the attachment regulations rather than moving to a joint system. Mr Miller, Director General, Service Personnel Policy, told us that this had been considered. However, Mr Morrison, MoD's Legal Adviser, said that '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'.[33]

27. MoD considers that a further benefit 'of a revised structure for command authority will be to extend to joint organisations, such as the Defence Procurement and the Defence Logistics Agencies, the ability to administer discipline to their personnel'.[34] We asked about the implications for these organisations. Mr Miller said that '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'.[35] MoD subsequently explained that a 'revised structure for command authority could apply to personnel serving in all parts of the MoD and the system would be flexible enough to be applied to new organisations or changed structures in the future'.[36]

Parliamentary interest in a Tri-Service Armed Forces Act

Consolidation of Service law

28. Our predecessors have taken a close interest in the issue of a Tri-Service Armed Forces Act and the time taken to introduce a Bill. In February 2000, they commented that:

The consolidation recommended by the Select Committee [on the Armed Forces Bill] in 1996 has not taken place… We regard the consolidation of Service law as an urgent matter and recommend that the MoD address this matter with more urgency than has been the case hitherto. The Government itself acknowledged the possible benefits of a tri-Service Discipline Act in the Strategic Defence Review and we also expect to see early progress in this area.[37]

29. The last Select Committee on the Armed Forces Bill in 2001 also examined the issue of a single Service discipline act and commented that:

Our predecessors in both 1991 and 1996 recommended that each of the three Service Discipline Acts should be consolidated. They regarded this process as desirable because of the number of amendments which had been made to the Acts since they were first passed in the 1950s, with sections inserted and repealed, resulting in what our colleagues in 1991 described as 'frankly a mess'. The 1996 Committee found it unacceptable that two years' work had been carried out on consolidation by a senior draftsman from Parliamentary Counsel but that the process had been left uncompleted when the secondment to the Law Commission came to an end. They recommended that the necessary time and resources be made available to allow for consolidation before the next Armed Forces Bill came before Parliament. The Defence Committee has also, more recently, recommended that the MoD address consolidation of Service law as a matter of urgency.[38]

30. The Secretary of State for Defence told[39] the last Select Committee on the Armed Forces Bill that it would be 'an enormous process' to draw up a single discipline Act which reconciled the different cultures and traditions of the three Services, but he believed it was 'common sense' to work towards this. In his view, although it was a priority for the MoD, it would take years rather than months to prepare a Bill, because of the complexity of the issues and the legal technicalities which it would need to address. The Committee noted that there were 'only two MoD officials working on the proposed Bill (one of whom was on sick leave at the time)'.[40] Mr Miller, Director General, Service Personnel Policy told the Committee that the team would be significantly enhanced later that year (2001) and that he was working to the timetable set out by the Minister for the introduction of such a Bill in five years' time.[41] The Committee did not accept that 'it is necessary to wait until the next scheduled review of the Service Discipline Acts, in the 2005-06 Parliamentary Session', and recommended that 'the Ministry of Defence devote sufficient resources to the preparation of a tri-Service Discipline Bill to ensure it is brought before Parliament within three years'.[42]

Harmonisation of Service law

31. During this inquiry, we asked why it was taking so long to get a Tri-Service Bill before Parliament. Mr Miller, told us that consolidation was identified in the 1990s as being an issue and that it was thought at the time to be 'a tidying-up exercise'.[43] However, what was looked at subsequently:

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… That led us to decide that a single Act was appropriate, and that is where we are now; that is really what harmonisation… sets out for our aim.[44]

32. On the issue of progress, Mr Miller said that it was not until 2001, when it was recognised that harmonisation and the single Act was the 'way ahead'[45] that MoD 'started to build up the team and to get to grips with the scale and complexity of the task we were setting ourselves'.[46] Mrs Jones, Head of the Armed Forces Bill Team, told us that, from the early 1990s, a lot of work went into consolidating the three discipline Acts. However:

That work was overtaken by two things… one was the need to make changes to the Armed Forces' legislation that arose out of the Human Rights Act in 1998… And the second thing was… the Strategic Defence Review, which changed the emphasis from consolidation… to a complete review of the Service Discipline Acts.[47]

33. We find it disappointing that progress in introducing a Tri-Service Armed Forces Bill has been so slow, although MoD explained that the work required has involved substantially more effort than the 'tidying-up exercise' which was originally envisaged.

34. As this Committee and our predecessors have previously concluded, there is a strong case for having a single system of Service law, and the main arguments for this are set out clearly in MoD's Memorandum. The proposal to extend the revised structure for command authority to joint organisations seems sensible, as it should provide for improved discipline arrangements for Service personnel in such organisations. We expect MoD to ensure that there is consistency in the administration of discipline between Service personnel and civilian staff who work in the same organisation.


19   Ev 44 Back

20   Ev 45 Back

21   Ev 45 Back

22   Ev 45 (see also Ev 69-70) Back

23   Ev 45 Back

24   Ev 45 Back

25   Ev 45 Back

26   Ev 45-6 Back

27   Ev 45-6 Back

28   Q105 Back

29   Q105 Back

30   The Army Act 1955, the Air Force Act 1955, and the Naval Discipline Act 1957, allow personnel from one Service to be temporarily attached to either of the other two Services. The main effect of attachment to a Service is that the person attached is subject to that Service's disciplinary system, while also remaining subject to that of his/her own Service. Back

31   Ev 38 Back

32   Ev 38 Back

33   Q10 Back

34   Ev 39 Back

35   Q 11 Back

36   Ev 63 Back

37   Fourth Report from the Defence Committee, Session 1999-2000, HC 253, Armed Forces Discipline Bill [Lords], para 28 Back

38   Special Report from the Select Committee on the Armed Forces Bill, HC 154-I, Session 2000-01, para 16 Back

39   Special Report from the Select Committee on the Armed Forces Bill, HC 154-I, Session 2000-1, paras 17-18 Back

40   Special Report from the Select Committee on the Armed Forces Bill, HC 154-I, Session 2000-01, para 18 Back

41   Special Report from the Select Committee on the Armed Forces Bill, HC 154-I, Session 2000-01, para 18 Back

42   Special Report from the Select Committee on the Armed Forces Bill, HC 154-I, Session 2000-01, para 19 Back

43   Q 1 Back

44   Q 1 Back

45   Q 2 Back

46   Q 2 Back

47   Q 3 Back


 
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