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first passed in the 1950s, with sections inserted and repealed,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