UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 64-i

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

DEFENCE COMMITTEE

 

 

TRI-SERVICE ARMED FORCES BILL

 

 

Wednesday 2 February 2005

MR IVOR CAPLIN MP, MRS TERESA JONES and MR HUMPHREY MORRISON

Evidence heard in Public Questions 1 - 96

 

 

USE OF THE TRANSCRIPT

1.	This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
2.	Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.
3.	Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.
4.	Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.

 

Oral Evidence

Taken before the Defence Committee

on Wednesday 2 February 2005

Members present

Mr Bruce George, in the Chair

Mr James Cran

Mr David Crausby

Mr Mike Hancock

Mr Dai Havard

Mr Frank Roy

________________

 

Examination of Witnesses

 

Witnesses: Mr Ivor Caplin, a Member of the House, Parliamentary Under-Secretary of State for Defence, Mrs Teresa Jones, Head of the Armed Force Bill team and Mr Humphrey Morrison, Legal Adviser, Ministry of Defence, examined.

Q1 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.

Q2 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.

Q3 Chairman: It never saves questions, we ask the questions anyway.

Mr Caplin: Just let me say a few introductory remarks, if I may.

Q4 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.

Q5 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.

Q6 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.

Q7 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.

Q8 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.

Q9 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.

Q10 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 have to do 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.

Q11 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.

Q12 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, 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.

Q13 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 Blackwell, 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.

Q14 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. 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.

Q15 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.

Q16 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.

Q17 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 , 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, i.e. 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 joint 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.

Q18 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.

Q19 Mr Cran: So we have been fact-finding, that was the first exercise; consultation, was that almost ploughing in with the fact-finding or do we move on to that stage next?

Mr Caplin: To an extent, I see this exercise as part of the consultation process, that is why the Chairman and I exchanged those ideas and letters as to how we could get a process going that would give us some different views about tri-Service discipline and the Bill. Notwithstanding whatever report ultimately comes back, this has been a useful exercise for us already in being able to address many of the issues that have been raised over time by members of the Armed Forces themselves and the Defence Select Committee. I think this is part of the consultation process but I should emphasise that we have a very, very demanding timetable as we have established already. Long consultation is unlikely but some consultation is necessary.

Q20 Mr Cran: We are very grateful and we all are here, we are being consulted, but, of course, it is very important that the end user is going to be consulted too. What I read from what you have said is that you are not going to have a lot of time to consult the end user but you are going to have some time and will do a measure of consultation?

Mr Caplin: Yes. I anticipate being able to start consulting around mid year when we will have had the views back from the Select Committee. We will have formulated more proposals; we will talk through the chain of command where we are and then go out and do some consultation. That should be in good time for the introduction of the Bill in the autumn as we have discussed already.

Q21 Mr Cran: Let us just hypothecate: maybe some body of opinion is going to come forward that you have to take notice of, would it be too late to take account of that?

Mr Caplin: I think that would depend on the gravity of what was raised. I would hope from a ministerial perspective, and working with Teresa and the team, that we will have covered all those. If someone comes out of left field and says "What about this" and it is a showstopper then we will have to come back and consider it. That was the nature of the Chairman's opening question, I think, in terms of the range of what might come out. I am not ruling that out but I am pretty confident that we have covered most of the bases, but we will have to see.

Q22 Mr Cran: My last question: once we get the Bill, it is in this place going through the mill, the House of Commons and Parliament, there may be changes there which affect Armed Forces personnel fairly profoundly, who knows, how will you inform them of that? Are you aiming to inform them as it happens or has this got to be rolled up at the end when the Act is in its final stage and you communicate?

Mr Caplin: I think we have quite a good experience from what we have been doing already in the last 18 months on pensions and compensation where we outlined some of the principles of what we want to try and achieve. Then we had a regular update to members of the Armed Forces as the Bill went through and now we are planning a major exercise, of course, in relation to the transfer, for instance, of pensions and the new compensation scheme which will come into force on 6 April. That experience that we have learnt there will be put to good use in developing a proper strategy for delivering details of this new disciplinary law to the Armed Forces.

Q23 Chairman: Mind you, we did produce our recommendations to you on pensions and compensation and it did not make a blind bit of difference.

Mr Caplin: Chairman, I think that is a very interesting comment. I would say to you that I read them with interest and I responded quicker than the usual timeframe, I think, to your suggestions, some of which were okay and some of which were not.

Chairman: Perhaps you could tell your predecessor, a good bunch of people on the Defence Committee. That is provoking you.

Q24 Mr Hancock: Minister, if I could take you back to your opening statement. You used the words: "It will enable commanding officers to apply discipline fairly, efficiently and consistently". I think consistency is the important thing here, is it not? One of the failures you hear time and time again is where some people end up being court martialled and others do not for virtually the same issue. It is that element of discretion which causes so much concern. I am interested to know whether you believe you can now ensure that there is a consistent approach to these matters?

Mr Caplin: Certainly the key principle of the Bill that I outlined in my opening remarks is to try and ensure that.

Q25 Mr Hancock: How do you do that?

Mr Caplin: One of the areas that we are going to have to undertake in terms of introducing this Bill is a proper programme of training for all commanding officers. That is going to be quite an interesting and large logistic exercise but what I can say to the Committee is we are absolutely committed to that. Now, as we go through that training exercise we will have to make clear to COs exactly what is expected of them at each level so there is a proper understanding and consistency across the board. That is what we are aiming at, and I think rightly. Because we operate in a joint environment we all know around this table there are no single Service operations any more, very unusual, even the tsunami is a collection of different forces or Carlisle, these things reflect a tri-Service approach, we have, therefore, in terms of discipline, to have that approach. I think the best thing we can achieve is effective and proper training of commanding officers which allows them then to make those judgments about consistency.

Q26 Mr Hancock: Have you reflected back, say over the last four years, on those cases which have progressed to court martial and similar instances where commanding officers chose not to go that way? In the Navy, for example, there are many examples where people facing the same repercussions have not gone down the same path. There is a genuine feeling that this issue is one of lack of consistency, lack of commanding officers having the nouse to see the problems which arise out of not having a consistent approach. I want to know whether or not you are absolutely sure that these things have been properly exercised by the consideration you have given which would lead me to believe that we have learnt from that. It is one thing saying "We are going in for extensive training of commanding officers" but there has to be some proof that for the people they are dispensing justice to this is still going to be delivered in a fair and proper way. It does not mean necessarily courts martial will be the norm because commanding officers will not want to exercise discretion but discretion has to be exercised consistently also, does it not?

Mr Caplin: I think there are two things, Mr Hancock, if I may say. Firstly, there will be an increase in terms of the numbers of offences for Army and RAF COs that they can look at. We think it will double from about eight to 16. I think that is probably right reflecting the difference between Army, RAF and Navy and of course there is a difference there if you are away on a ship it is completely different for six months than if you are here on a base, and we all accept that. Also, we have, of course, the independent prosecuting authority which was introduced in 1997, and you will recall came from the 1996 Act after the Findlay court under the European Court of Human Rights. Now that independent prosecuting authority is there really to act, as we would know as constituency MPs, like the Crown Prosecution Service. What we are going to do from 1 April this year, and this is in advance of the Act, is we are going to bring in a central administration authority for the independent prosecutor which I hope will give us some efficiency gains in advance of the Bill coming in. We will start to have some idea of how this process is going to work in the wider context.

Q27 Mr Hancock: Reading your memorandum, I want to get back to it, if I was Service personnel I would want to be sure that irrespective of which base I was on, which squadron I was working with, which ship I was on, I was going to be treated fairly. In the memorandum it says that the commanding officer after getting evidence from the relevant military authority, the RMP or whoever has carried out the investigation, will then make a decision. He will not have to refer that to the independent prosecuting authority if he chooses not to pursue it to a court martial. I want to know that the people who are going to be subjected to this discipline can have confidence that a commanding officer would exercise that discretion the same whether it is in Portsmouth or Devonport or whether it is in Bosnia or Baghdad?

Mr Caplin: I am not going to say to you today that is possible because these are a huge group of commanding officers. I think my original answer still stands that we have to go through a programme of training, you can call this a cultural change programme, if you like, because the role of the CO is going to be slightly different. There will still be summary powers that they can dismiss, of course, and that is why we ask people to be commanding officers. I think the Committee has heard me say this before, we do not run operational theatres from Whitehall, nor should we. It is important that COs run their operational theatre whether it is in Basra or on board HMS Chatham over the new year, those are all important areas of how the Armed Forces operate. I think we are going to have to undertake training to deliver exactly what you are suggesting, Mr Hancock, I accept that entirely and I am not balking at that but it is a major exercise which I do not think we would want to undertake yet. We would want to consider how we undertake that exercise in the run-up to implementation of the Bill, not the run-up to the introduction of the Bill.

Mrs Jones: Just adding on that specific point, we are looking particularly at the COs' powers in relation to court martial only offences. There are a whole range of offences which can only be dealt with at court martial. In those cases, the CO will not have the power to dismiss those offences. They will have to go to the prosecuting authority because that is the right place for the prosecutorial decision to be made when we are talking about serious offences. It will be absolutely clear in the legislation what the COs' powers are in relation to different sorts of offences and in the secondary legislation that underpins it and, indeed, in the guidance and training to which the Minister referred. I think there is probably not a lot more I can say in that respect. It will be set out in the legislation what the CO can do. He will not have complete discretion in relation to serious offences.

Q28 Mr Hancock: I apologise to Frank because Frank felt that question relating to your opening statement impinged on his questions.

Mr Caplin: I do not want to cause a spat in Committee. It would not be my style at all, Chairman.

Q29 Mr Hancock: I apologise with courtesy. What lessons have we learnt? With 65,000 of the British Army now having served in Iraq, what have we learnt about disciplinary changes that need to be made from that experience with such a large number of people being deployed through a theatre?

Mr Caplin: Let me put it this way, because these are difficult times to talk about current operations as we all appreciate.

Q30 Mr Hancock: Of course.

Mr Caplin: I am going to have to couch this in rather vague terms. I think from current operations, and you are focusing on Iraq, I will talk about Afghanistan, the Balkans and other things, I think what is reinforced by visits and discussions with our forces there is the tri-Service nature of what they are doing and, therefore, the need for disciplinary powers and court martial processes that represent the modern approach. We know round this table that most of this discipline relates back to the 1955 Acts and, in the last two years when I have come before the House, we have reintroduced the various powers. They know that those Acts are 50 years old. They know it needs changing. Certainly when I have been out and about, and I have been to most of the places that you have been to, maybe one or two more, I think they understand the need for a new approach on a tri-Service basis to disciplinary powers. I think that is the message I would get from current operations given that I cannot and will not go into every detail.

Q31 Mr Hancock: No. I do not want you to take us down that road. There are lessons that have been recognised as to the very nature of the way our Services react now and the Bill will reflect more fully the lessons of those experiences wherever they be.

Mr Caplin: I think the Committee would recognise that one of the things which the Ministry of Defence does extremely well is to learn lessons from the past. I would contend that sometimes we are our biggest critic, even accepting the Select Committee's views and other organisations internally. Some of our reports into various matters have been much more critical of our own processes than others have been. Where we have lessons to learn it is essential we learn them because, as I said in my opening remarks, good discipline means good ethos and that means good soldiers, sailors and aircrew, which is important.

Q32 Mr Havard: If I can take you on to the dirty detail of money. As I understand it from the reorganisations that are described you said you would take a little bit of advantage of making some economies of scale or some advantages in terms of the prosecuting authority. The idea, as I understand it, is that by integrating the various processes or unifying them which exist currently for three separate Services, that is the prosecuting authorities, the admin offices and so on, there are likely to be some financial savings in relation to that, potentially. Perhaps you could say something about any savings that come from this. It would seem to me that one of the other areas of savings is going to be a reduction in the number of courts martial?

Mr Caplin: I would not like to comment on the latter, to be honest, because I think that is quite a difficult area to comment on, whether it will go up or down, it does depend on the circumstance in any particular year. At the outset this is not about saving money, this is about good tri-Service disciplinary law. It is probable this will cost us money rather than save us money, even allowing for introducing the administration authority for the prosecutor, that is such a small part of what we are doing. If you take into account the major training programme which I have just been talking about, there are obviously costs associated with that. There are likely to be infrastructure costs to put this together, there may be other costs that we will have to meet. The commitment is that we will meet those costs because we see this as essential and important and I have tried to emphasise, as you will be aware when you have heard debates in the House, the importance of our personnel to the Armed Forces, and this reinforces that message.

Q33 Mr Havard: I am very interested in what you have just said. What I am trying to get at is - perhaps I am becoming cynical, moving from scepticism to cynicism - often bean counters in the Treasury and elsewhere say "Where is the advantage financially?", maybe not initially but over time, the extent to which "savings" are seen to be a tool in driving through the process. What you seemed to be saying earlier on was that is not really required, it is not what is motivating this particular change.

Mr Caplin: It is not motivating it at all, it is the importance of what we are doing. I do not want to mislead the Committee in any way at all. If you are asking me to crystal ball gaze five years or seven years down the line, I think it is likely you will be in a cost neutral situation because you will have spent your costs upfront to create your training authority, your training, your administration approach, et cetera, you will have a tri-Service basis. I think it is likely over a longer period you will start to see some savings. To suggest you will see lots and lots of savings which you can put back to front line operations is not why we are doing this, and I do not see that is possible.

Q34 Mr Havard: I am reassured by some of that. In your statement you talk about "... devote resources to its implementation", I think that comes back to some of the questions my other colleagues have been asking about consultation, knowledge, understanding and confidence in a process because I think what we see is, if you like, one person's complaint is another one's indictment, as it were. Often the two sides of the same coin are being looked at by a process in all confidence that it will come forward. As you will know only too well, we have been looking at a number of things in relation to our duty of care where people feel that the process has not done justice to the command, rightly so, in a lot of cases, it would seem to me, in the past, so confidence in the process. There is an opportunity cost, is there not, for getting it wrong in that sense which also redresses against any crude financial savings there may be?

Mr Caplin: Certainly there is if we get it wrong and that is why we are determined not to, and I made that clear in my opening remarks in response to the Chairman, that we are determined to get this piece of legislation right, and it is important that we do. I can only restate that this is not about saving money, and if there are savings it is in the longer term.

Mr Roy: Minister, most of my questions have been asked and answered.

Mr Havard: That will not stop you.

Q35 Mr Roy: It will not stop me, no. From the notes we have I am surprised to know there are 15,000 summary disposals a year, which seems a huge amount. I did not expect to read that. Can I ask you specifically: some of the hearings before those commanding officers are clearly not themselves independent and impartial as required by the Human Rights law. How concerned are you, therefore, in principle that you are proposing to extend the role of a non-compliant procedure, bearing in mind I know there are some protections within those procedures? Are you not worried you are extending something which seems to be wrong?

Mr Caplin: Mr Roy, if I have understood your question, I think you are suggesting to me that currently we have procedures which are non-compliant and we are going to carry that on in the future. I think I would argue with you that is not the case and the purpose of this Bill is to ensure that in the longer term Service law is compliant with the ECHR. I pointed out earlier that the independent prosecuting authority came out of a European Court judgment in 1996, the Findlay case, and the Committee will be familiar that there are other cases which have forced us to look at some of those issues. In fact, some of these issues in terms of review were taken by the evidence which Brigadier Andrews gave to you on 27 October in relation to Rachel Squire's questions where he dealt with many of these points in some detail. Also, I would say to you that if you are looking at ECHR, I will quote the extract from the Ninth Report of the Joint Committee on Human Rights - Jean Corston's Committee of 22 March -where the Committee said - this was in response to the Grieves case, which everyone around the table will be familiar with - in paragraph 23, Recommendation 4: "We do, however, have one general point to make bout the context in which the need for this remedial order arises. It seems to us unfortunate that the Ministry of Defence waited for the adverse finding in Grieves before making the changes necessary to bring the Royal Navy's court martial system into line with those of the other two armed services in respect of this particular issue of compliance. In our view a more dynamic approach to giving effect to previous adverse decisions of the European Court would have led it to the conclusion that this latest finding of incompatibility was very likely, and that further recourse to Strasbourg probably could have been avoided had the opportunity been taken in the Armed Forces (Discipline) Act 2000 or the Armed Forces Act 2001." If you take that view from the Joint Committee on Human Rights, what we are trying to ensure is that the Committee cannot come back again and say we have not been looking dynamically at taking decisions about discipline and law.

Q36 Mr Roy: Can I just clarify: am I right that appearing before a commanding officer is not considered compliant with Article 6 of the European Convention on Human Rights for a number of reasons including the fact of the CO's lack of independence and absence of legal representation for the accused?

Mr Caplin: Let me make one point, and then I will ask Humphrey to give you the legal background. The most important issue here is that we have looked at this in terms of summary powers; we have had leading counsel advice and we are content, the advice we have is that process is compliant.

Mr Morrison: Just to fill in the way we see the summary procedure as a whole. The stage at which a member of the Armed Forces goes before a CO is not itself compliant.

Q37 Mr Roy: So that is non-compliant.

Mr Morrison: At that stage it is non-compliant. The summary process, as a whole, that is including two very important extra things: the availability of appeal to a compliant court, which is a summary appeal court, and the right for members of the Armed Forces to choose to go instead to a court martial, which is a compliant court, with that court itself restricted to the powers which a CO would have instead of appearing before the CO to go to the compliant court wielding the same powers of a CO. On those two factors leading counsel on several occasions has confirmed his view that he considers that overall system to be compliant.

Q38 Mr Roy: The reason the overall system is human rights compatible is the accused has the right to elect trial by courts martial and to appeal against the commanding officer's decision, and I accept you are saying that. In that case what is done to ensure that the accused knows about those particular rights?

Mr Morrison: He has to be informed. The statute itself provides for a stage at which he must be given a right to elect. He can come forward and say "I want to elect", he has to be given that option.

Q39 Mr Roy: How is he given that advice?

Mr Morrison: I do not know the exact paperwork but it has to happen.

Q40 Mr Roy: It is not a 300-page document?

Mr Morrison: No.

Q41 Mr Havard: Can I ask a supplementary to that. If it is going to be a courts martial obviously he or she has got legal advice; if summary dealing, where does this advice come from? How independent is the advice-giver, as it were, at that stage in the process? They seem to be "independent" in the courts martial process but I spent a number of years as a trade union official carrying out this function saying to people "No, no, you have got these options as well, pal", who does that job?

Mrs Jones: The arrangements are reasonably similar in all three Services but, essentially, if somebody is going to be dealt with by their commanding officer they have to be given information, I think it is at least 24-hours in advance a leaflet is given to them, about their rights in relation to those proceedings. Sometimes an assisting officer or an accused's friend will be appointed, there will be advice, but I have to say that will be internal advice, by and large. As far as I am aware - and perhaps we could write if I have not got this right - there is nothing to stop a serviceman taking legal advice when he is involved in summary proceedings, although there is no statutory provision that he must be provided with that legal advice. The legal advice that a serviceman can get, he can get either from a member of the Service's own legal branch or he can choose to get that advice from a civilian lawyer if he wishes.

Q42 Mr Havard: But if it is not in his knowledge and experience that he can do all these things, he cannot do any of them, can he?

Mrs Jones: He will be informed that he can do these things.

Mr Caplin: Can I deal with this point which Mr Havard has raised as well. In terms of our welfare processes and the chaplaincy service and all the other welfare processes, if a member of the Armed Forces is in that sort of trouble then that whole welfare system is there to support him or her. That is a very important part of that process.

Q43 Mr Roy: Can I clarify from Mr Morrison the overall compliance opinion, has that been tested in the European Court?

Mr Morrison: On summary dealings, as yet there has been no challenge on summary dealings under our present system, in other words since the introduction of a summary appeal court and the right to elect. Our current statutory framework, that was all introduced by the 2000 Discipline Act but has not been subject yet to testing in front of the courts. Obviously when the legislation which put all that in place was being considered, at that stage and again since, we took the best advice we could.

Q44 Mr Roy: It has just not been tested?

Mr Morrison: As yet, it has not been tested.

Q45 Mr Hancock: Can I ask a supplementary on the issue about the 24 hours before a decision is made. I am interested to know how an accused Service personnel would get access to legal advice in that period of time knowing that the following day a decision is going to be taken. You said they can get outside legal advice if they want or they can get access through the military legal services. Are you telling me that is available to personnel who are not based in this country, for example?

Mrs Jones: Yes, as far as I am aware but it would be on the telephone sometimes, it depends where they are.

Q46 Mr Hancock: I can understand it would be on the telephone. I would like to be clear that Service personnel who would be subjected to a disciplinary hearing could make a choice to have a reaction dealt with by the commanding officer but before they chose themselves to exercise some choice they would have access to proper legal advice. You can say that, can you?

Mrs Jones: I am not saying that they do choose to take legal advice. I am saying there is nothing to stop them taking legal advice.

Q47 Mr Hancock: To say it, it has to be available, does it not? I am saying are you sure it is available?

Mrs Jones: I cannot say.

Q48 Mr Hancock: The Bill should have that proviso in it otherwise it can never be compliant with the European law, can it, because it needs to be compliant if you are going to bring into being that people will have access to proper legal advice before any decision that they choose to make is made, whether they choose to exercise that choice is another matter but they should have the facility of legal advice being available to them.

Mr Caplin: Mr Hancock, this centres on the word "access" and how you gain access and where you are in the world.

Q49 Mr Hancock: I understand.

Mr Caplin: Whether it appears in the Bill or not still maybe an open discussion, given that we are in these early stages in reflection of your consideration of where we are. It is absolutely clear to me that the outcome of this is to strengthen our already compliant process, that is what we are aiming to do, and if there is an issue about access to legal advice, which does not encompass the welfare services which I have just mentioned, then obviously we will have to have a look at that.

Q50 Mr Cran: You have been talking with my colleagues about summary offences but you have edged into the whole question of courts martial which I just want to go into in a little more detail, not making any reference to individual cases, of course, but speaking in a general nature about what you are proposing.

Mr Caplin: Yes.

Q51 Mr Cran: As I understand it the procedures for court martial are broadly similar to that of crown court, a judge advocate doing the work of the crown court judge, a panel of Service officers, warrant officers, instead of the jury, but I guess you could call it a jury. We were told in a session on 27 October that planned improvements will "... deliver more expeditious courts martial". I think the Committee is interested in knowing what these planned improvements are? I ask that question against the background of the Royal Navy because there there is going to be a reduction in the summary powers of commanding officers, a consequential increase in the number of courts martial. Against that background, what would you say?

Mr Caplin: Firstly, I have talked already about the administration authority so, clearly, there is a movement there which will provide a change to the process. The other thing which I think will help the process, and it particularly relates to the Navy, is to produce what you might call the establishment of a standing court or an assize system. Rather than deal with one court martial here and one court martial there, we have one standing court here and one standing court there which is in semi-permanent session.

Q52 Mr Cran: I am sorry to interrupt but what do you mean by "here" and "there".

Mr Caplin: I am being deliberately vague because we are still working on how this will work. The concept will be that you have your court martial and you bring cases to the court martial rather than what happens at the moment which is the Army goes here, the Navy goes here, the RAF goes here. We need to create a situation where "here" is the court martial and we are going to bring the cases to it. In the longer term, if you look at the system of a crown court in your constituency, Mr Cran, or mine, it clearly works and I think we are reflecting that in these new changes so that, ultimately, we can bring military law more in line with civilian law. I think that is going to help the process both in the Navy, RAF and the Army and will be beneficial in the longer term.

Q53 Mr Cran: The corollary of all of that, of course, is that the one phenomenon that you can bet on in the legal system if you are coming to court - and I have to stress I never have thus far but I am told by those who know a great deal more than me - that it is characterised by this problem of delay. Therefore this whole question of delay is something you have to think about as well, have you not? How have you addressed it?

Mr Caplin: I think you are absolutely right. The system can take too long. I think if this assize system works, the standing court approach works, I think in the medium to long term we will see reducing numbers which will alleviate some of those delays. I accept entirely that delay is unacceptable. Part of the driver here for a tri-Service approach has been to try and reduce delay. One of the obvious areas is we will no longer have to have five people, for instance, from the Royal Navy, if we are all operating under a single disciplinary law, it could be three members from the Royal Navy, someone from the Army and someone from the RAF trying a certain number of cases. There could be efficiency gains there which allow a much quicker approach to the judicial process which is where we all want to get to, I think.

Q54 Mr Cran: I think on the basis of logic I would go in more or less the same direction as you are. In any questions I am asking, I do not mean to criticise.

Mr Caplin: No.

Q55 Mr Cran: It is just one wants to know whether the structure you propose, which I approve of, is going to result in a reduction in delays. Do we know what the average waiting time for courts martial at the minute is and what it might be under your system?

Mr Caplin: We do not have any league tables unlike other departments of state on these particular matters. I guess if the Committee is really interested in that we could gather together some information but we have not done that work yet, no.

Q56 Mr Cran: I do not want to ask you to get together a whole lot of information you do not already have to hand but it would have been useful, would it not, to justify at least at one level what it is you are doing which in all other senses I think is absolutely sensible.

Mr Caplin: Yes.

Q57 Mr Cran: I do not want you to go into additional work please. Can I move on to the Royal Navy, again, these offences committed at sea. That presents an unhappy dimension, does it not, because it is not always possible to get the culprit from ship to one of these courts. How are you going to deal with this?

Mr Caplin: Obviously the Navy system is one which has stood the test of time, that is fair enough to say. Commanding officers have used their power judiciously. I think I am right in saying that the maximum sentence they would give is 90 days, so clearly anything that is more serious than that, an allegation, for instance, of grievous bodily harm in a run ashore, would naturally, I think, in all our views be longer than 90 days, therefore the person needs to be returned to base and arrangements need to be put in place to make that happen. I think predominantly our commanding officers, commanders of our ships understand that and they exercise that decision-making with discretion and with considerable ability. I think we have all seen and heard our experiences of that ability that they have.

Q58 Mr Cran: I will not press you because I understand the problems of this particular Service, as you have said. We will see what happens. One last question, it is simply this, with the Royal Navy again, if there is going to be a court martial, either an officer or officers or ratings, for all I know, are going to have to be shipped back, as it were, for the court martial. I think that is a proposition you would accept, is it not? What is going to happen to replace them on the ship to safeguard operational requirements? These are all unhappy questions but they have to be looked at. Where have you got there?

Mrs Jones: That is a situation which arises now. Of course the Navy can conduct a court martial at sea.

Q59 Mr Cran: It might be more important in the future because of the reduction of the summary powers?

Mr Caplin: I do not think this is going to happen, to be honest. If you want me to hunch here, given where we are going and the whole approach, I think if you were in command of a ship, an offence that was outside that maximum sentence, you would take the view that has to go back to base for further consideration. Of course, a commanding officer of a ship, he is not there alone, he has access to all the modern communications that he needs, the access point that Mike Hancock was making just now about other people, he has access to talk to people back in Portsmouth or Devonport or anywhere like that. I think it is highly unlikely that we will be in that position.

Mr Morrison: We did conduct with the Navy a very careful consideration of which of their offences which at the moment can fall within a CO's jurisdiction they actually use and it was mainly as a result of that study and discussions with the other Service officers of course that resulted in this small group of offences being added to the Army and Air Force. The offences which we have taken away, which in the Navy's case theoretically involve the most extraordinarily serious offences, rape, grievous bodily harm and so on, it was established and agreed by the Navy are never tried by COs and have not been tried by COs in years. I think to a great extent, while not wishing to say that we could guarantee that there will be no effect upon courts martial, the harmonisation we have gone for in most cases is the removal, as far as the Navy is concerned, of an entirely theoretical summary jurisdiction and to try and indeed to obtain an agreement with the other Services that they would have added to their summary jurisdiction a small group of offences which the Navy in a tried and tested way did actually use at summary level, and that is the eight or so extra offences that have been added or we are proposing should be added to the Army and the Air Force.

Q60 Chairman: Minister, one of the proposals is that the review procedures for court martial findings and sentences will be abolished. Now, in the evidence session of 27 October last year, we were told that in 2003 15 cases were changed by the Army Reviewing Authority out of around 500 trials. Can you tell us how many were changed in 2004? Maybe that is an unfair question to ask and if you cannot answer it, maybe you would drop us a note.

Mr Caplin: I might be able to. I have a lot of statistics here. I was avoiding the need to actually use any of them because I know how select committees hate statistics being bandied about, but that one I am not sure we have got. I have got 83 pages of other statistics here, but not that one.

Q61 Chairman: Perhaps you could drop us a note then.

Mr Caplin: We will, yes.

Q62 Chairman: So 15 cases out of 500 is not an insignificant number, three per cent. How will you ensure that deserving cases are not passed over following the abolition of this system?

Mr Caplin: Let me introduce this and then Teresa might want to come in. Part of what I said in response to Mr Roy's question earlier about the evidence given by Brigadier Andrews on 27 October did relate to the review process as well and if you take account of what the Joint Committee on Human Rights was saying to us, I think it is important that we are ahead of the game in terms of some of those processes. Maybe I could ask Teresa to deal with some of the detail of that.

Mrs Jones: Perhaps I could just add that the point about review is that it is non-judicial interference in the determination of a judicial authority, namely the court martial, but Service personnel who are convicted by a court-martial of course have a right of appeal to the Court Martial Appeal Court in the same way that a civilian has a right of appeal to the Appeal Court. We will also be introducing bail pending appeal, so the Service personnel will be no worse off than their civilian counterparts in being able to appeal against the findings and sentences of the Court Martial Appeal Court. The other point about review is that review is a determination, particularly in relation to the sentence. The Reviewing Authority can change the sentence to one that is no worse than the sentence that was awarded by the court martial. Individuals may take a different view about what amounts to a worse sentence, so, for example, is dismissal worse than detention, or the other way round? We feel that the rights are properly enshrined in appeal to proper courts, like the Court Martial Appeal Court, than leaving it to a civilian reviewing authority, albeit with legal advice.

Q63 Mr Crausby: Your updated memorandum of 7 January of this year states that you have concluded that the minimum qualification for the appointment as a judge advocate should be increased to a minimum seven-year qualification. What real effect will this change have? Will some of your current judge advocates, for instance, have to step down as a result of that increase in the minimum qualification?

Mr Caplin: We do not know the answer to that. We will have to look into that. Why we are doing it, if that is the other implication of your question, Mr Crausby, is quite simple. This is about modernising the system of disciplinary law and modernising this particular aspect of judge advocacy. It will create military law much more in line with civilian law. If my memory serves me right, the current minimum qualification for judge advocates, I think, is five years in usual circumstances. As other people have suggested from this Select Committee, this is a bit like the Crown Court system and we can expect people to be properly trained and able to undertake the often complex cases before them.

Q64 Mr Crausby: Have there been any problems with those with less than seven years' qualifications?

Mr Caplin: This is about modernising the system. This is not saying that there are lots of problems with the current judge advocates. It is about the future and it is about bringing forward a Bill which still stand the test of time, I think, really for some years to come, the 1955 Acts being the ones that we still relate to 50 years on as the main Acts, albeit updated, but the main Acts that relate to Service discipline. I think we would all accept that it is now time to update the military law.

Q65 Mr Crausby: Your updating memorandum also says that you intend to make provision for certain categories of officers or warrant officers to be excluded from membership of the court martial and you propose to add Service chaplains to that list of those already unqualified to serve. What are the grounds for excluding Service chaplains?

Mr Caplin: We exclude them, quite rightly in my view, in that the Chaplaincy Service is a separate service, able to look independently and to give people confidential advice and welfare advice in difficult circumstances. We were just discussing earlier that if someone is about to appear before their CO, the advice they may want to seek is from the Service chaplain. That would be wholly undermined if that case eventually got to a court martial and the Service chaplain was part of the jury process. Now, we are extending the Chaplaincy Service, as the Committee will be aware, to cover other faiths as well, so I am confident that we can provide the welfare package that we need for people who are in some form of trouble within the Armed Forces, but if you ask me if I am going to reconsider excluding Service chaplains, the answer to that is no.

Q66 Mr Crausby: So you are going to exclude Service chaplains in order to distance them even further from the court martial process?

Mr Caplin: Absolutely, yes.

Q67 Chairman: So what jurisdiction will they be subject to?

Mr Caplin: Who?

Q68 Chairman: The chaplains.

Mr Caplin: Well, they will still be subject to the jurisdiction of military law of course. I know they are important people, Chairman, as you are, but I am not excluding them from military law; I am merely excluding them from sitting on a court martial so that they can provide the welfare and religious support.

Chairman: But they themselves are subject to the same law. Sorry, I misunderstood that.

Q69 Mr Roy: Minister, all three Services operate a formal system of administrative action which from last month has actually been changed by the Army in relation to the introduction of new arrangements which distinguish between minor and major administrative action. Will that introduction of new arrangements in the Army not lead to greater differences between the Services in this area? Is there not a danger there?

Mr Caplin: Well, I am pleased to tell you, Mr Roy, that the Army, in making these changes, actually talked in detail with the other two Services and this brings harmonisation of the approach much closer.

Q70 Mr Roy: That does not seem to ring true to me. I am not doubting your answer, but the new arrangements which have been introduced in the Army go against the Tri-Service Bill. The Bill seeks to harmonise disciplinary procedures across the three Services yet you have just agreed that the Army has changed the way they operate to make it different from the other two.

Mr Caplin: They have changed some technical areas of their administration process. They have not changed the main process of how they deal with many of the cases they have to deal with. Of course the Army deals with most out of the three Services. I would think that the effect of what the Army have done will be considerably fewer summary dealings in the Army itself than ----

Q71 Mr Roy: So you think definitely that the ethos of the Tri-Service Bill remains in tact?

Mr Caplin: Yes, absolutely, and these type of approaches are perfectly acceptable. They are discussed by the various people, Teresa's team, the principal personnel officers for all three Services, and no change, no change at all is going to take place to personnel practices which is not acceptable towards harmonisation and the Tri-Service Bill.

Q72 Mr Crausby: The updating memorandum provides further details of your proposal related to boards of inquiry and you propose to introduce the power to subpoena a civilian witness. Can you tell us in what circumstances you envisage such a power being used?

Mr Caplin: I think it would be very rare that we would have to subpoena a witness, but I think to have the power to do so is right and proper. It may be that a civilian witness can provide us with information relating to a case, but is for some reason reluctant to appear before a board of inquiry. This is about the subpoena, not about those coming forward to give evidence. If that was the circumstance and it was felt by the prosecuting authority that this was an important and material consideration for a board of inquiry, then I think we have to retain the same right as they do in civilian law.

Q73 Mr Crausby: What about boards of inquiry which take place outside the United Kingdom?

Mr Caplin: Well, all of our boards of inquiry take place within our own jurisdiction.

Q74 Mr Crausby: But how would you subpoena a civilian witness?

Mr Caplin: You mean a foreign national in another country?

Q75 Mr Crausby: Yes.

Mr Caplin: I am not sure we would be able to. We would not be able to. That is simply the case. We are talking here about subpoenaing witnesses who come within our jurisdiction.

Q76 Mr Crausby: What about a British national? He might be able to subpoena somebody. Would he be able to do that?

Mr Caplin: I think he could do that.

Mr Morrison: There are practical and legal limits on the extent to which you can use subpoenas for people sitting abroad. That would be a problem whether you were having a board of inquiry that was within the UK or outside the UK. There is a problem of trying to get witnesses who are not themselves British nationals, but for those who are British nationals, we see no reason why this provision should not be applied.

Q77 Mr Crausby: The updating memorandum also says that the MoD is not persuaded that the next of kin should have the right to attend Service inquiries. On what grounds were you not persuaded and how does that square with what is your obvious present thinking about involving Service families more and more?

Mr Caplin: Well, the BOIs, I think as the Committee has recognised in the past, are primarily internal inquiries with a limited purpose. They do not replace the coroner's inquiry; far from it. They always occur in very, very difficult circumstances and we recognise that, as a ministerial team. The Secretary of State will often see families himself, as you are aware, of those who have died in Service and sometimes be able to deliver board of inquiry findings personally and hand over the reports. That is one of the changes that we have made; we have made sure that families now can get a copy of the report as a matter of course. Of course there will be redactions in there where you have to have them, but again we communicate that and talk to the family about that process. I think what we have been able to do, and this has been a moving process in the last two to two and a half years, is we have been able to make sure that the casualty visiting officer and the welfare process back up right through, if you like, to the board of inquiry and its conclusions the very difficult circumstances that families find themselves in when they have lost a loved one. We understand the difficulty, but it is, after all, an internal inquiry to look at the limited purpose of what occurred at a particular time. It is not a coroner's inquest.

Q78 Mr Crausby: Does it not lead to suspicion? Certainly that has been our experience of Service families that we have met who have lost a loved one because they did not feel part of that inquiry and were not allowed to go there. Does it not sort of make them think that there is some kind of conspiracy? I think certainly it does in some circumstances. Do you not lose something with that lack of absolute transparency?

Mr Caplin: Mr Crausby, I do not want to conflate two of your inquiries together here and hopefully the Committee would not want to do that either, but I simply say that certainly since early 2003 and continuing right up to today, where regrettably we are dealing with the deaths of ten Servicemen at the moment, as you know, the processes that we use in terms of welfare support for families is constantly changing. Now, I am not going to comment on what is happening prior to that, but I think that today we are dealing with a much better approach to death in Service, and I have to say that that applies sometimes as much as it does to the RAF with the ten people we lost in the Hercules as it does sometimes to a road traffic accident in Germany. It is still the death of a loved one which has to be dealt with through the casualty visiting officer, through the chain of command and to a family back here often in the UK or somewhere else, so we are very, very much aware of that, as Ministers. I can only reassure you that at the Ministry of Defence every single official is aware of the importance that we attach to proper, effective and compassionate approaches when these tragedies occur.

Q79 Mr Crausby: If I lost a child, I would want to see everything and I would be offended by the fact that other people were able to sort of take on board information that I was denied. I get the impression sometimes that that is done in order to save some hurt from the next of kin because the MoD, I sometimes think, does not want the close relatives to know something about their loved one. I understand that, but I have to say I think it is a bit patronising. If I lost a child, I would want to know everything.

Mr Caplin: Well, maybe I could just pick up the use of the word "child". Everyone who joins the Armed Forces is over 16 and they are legally able to do lots of things, including make decisions about joining the Armed Forces, so whilst I accept that young people who join our Armed Forces may unfortunately die in whatever circumstances, I do not think we should suggest that there is something wrong with that part of the process. I do not think with the board of inquiry that a statutory right to attend for the next of kin would be the way forward. I think the approach that we are taking now in engaging with the family, with the next of kin, but providing them with the full report from the board of inquiry I think is a very effective way. I think if you talked to some of the families from unfortunate Service deaths that we have experienced in the last 12 months, I think they would amplify the approach that we have taken.

Q80 Mr Crausby: The current practice is that they may be allowed to do so exceptionally on the authority of the president. What would be the exceptional circumstances that would allow the next of kin to attend?

Mr Caplin: I just come back to what a board of inquiry is; a board of inquiry is about events at a certain time in a certain place, so the next of kin's role could be very limited in terms of the view of the president of the board of inquiry, but I would not really want to speculate on the type of occasion that that might occur, except to say that the inquiry has limited powers. It is not the same as a coroner's court where the next of kin would probably want to appear in those circumstances.

Q81 Mr Roy: Minister, I do not actually agree with you on board of inquiries in relation to parents being allowed to go to them. For the life me, Minister, I do not see one reason why a mother and father could not be sitting at the back of the room, listening to that board of inquiry. They tell us it is because they are not given that opportunity to go that they think that something is being hidden from them. Now, I do not tend to agree with you on that, but it is a fact that because they are not given the opportunity to go that they, therefore, think that there is a cover-up. I do not see, for the life of me, the reason why the family cannot be given the opportunity to sit at the back of the room just to listen. They know the difference between the coroner's court and a board of inquiry. Every single one of them who has come in front of this Committee has told us that they are well aware of it and constituents of mine came and told me that they know the difference. I would really urge you to think seriously about that because there is this perception that something is being kept from them which is to do with the death of their child, even though the child was 18, 19, 20 or 21.

Mr Caplin: Mr Roy, we try with our board of inquiries to be as open, as full and as frank as we can be and the provision of the report at the end is meant to be one of those processes. The question raised by your colleague, Mr Crausby, earlier was actually about a statutory right to attend. There is clearly a fundamental difference between someone being invited by the president of the board of inquiry to sit at the back of an inquiry and someone having a statutory right to attend. There seems to me a fundamental difference between those two.

Mr Roy: There is no difference there. The statutory right to attend, Minister, is that you have a right to attend, the same as the public have a right to attend here. They can have a statutory right to attend, but not speak.

Mr Crausby: A statutory right to attend, but not speak would seem to be sensible.

Q82 Mr Roy: People have a statutory right to come here today, but not speak.

Mr Caplin: They do not have a statutory right to sit behind actually technically, but not to worry. I do not see what would be gained by that. We have made considerable advances in our processes in relation to our boards of inquiry, our casualty visiting officer and our welfare approach. As I say, I think views from those families who unfortunately lost loved ones in the last 12 or 18 months may well be very different today because of the new processes we have introduced.

Q83 Mr Cran: Redress and complaints. Your own memorandum at paragraphs 35 and 36 said that the system could be improved and then it set out a number of principles and so on that you were going to address, one of which was the principle that the commanding officer should be integral to the system. Well, that is fine, but the problem for us is that at our evidence session on 27 October, Mr Julian Miller, the Director General of Service Personnel Policy - I presume that is MoD?

Mr Caplin: Yes, it is.

Q84 Mr Cran: He said to us that the expected improvements should include a system which is more clearly separated from the chain of command. It just seems to the Committee, looking at it a priori, that these two propositions do not sit together. You tell us why they do.

Mr Caplin: I think the first thing to say in terms of redress is that these are difficult areas and our thinking is still to be fully established. To some extent the Select Committee has a chance to influence - well, it has a chance to influence of course in all areas, but in this particular one we would be very interested in your views on that.

Q85 Mr Cran: Well, that is a really good way of passing the ball back, is it not?

Mr Caplin: I did say earlier that we were consulting and, therefore, I think it is very reasonable for us not to have hard and fast views, but to say that there are areas which are very complex, very difficult and we are struggling with them internally, but if the Select Committee has a view about these areas, then why not.

Q86 Mr Cran: That is perfectly logical, but the answer to this is that you are in the middle of thinking this whole process through?

Mr Caplin: Yes.

Q87 Mr Cran: Mr Miller was just giving his point of view, as it were, at this session and the memorandum was setting out another view. The two propositions do not, it seems to me, sit together.

Mr Caplin: I understand where you are coming from, Mr Cran, and I accept that entirely, but I think that has shown that we are trying to think these issues through in terms of redress.

Mrs Jones: I would add that the panel to which we referred in the earlier evidence and which I think is probably included in the second memorandum, it is that panel where there is the separation from the chain of command. Certainly on the redress of grievance, the view is that it should go first to the CO not least because if somebody has a complaint, it should be dealt with at the lowest possible level and there may be something that can be dealt with by the CO and it is quite proper he should have the opportunity to deal with it himself first of all. The idea of removing it from the chain of command by reference to a panel is that at the moment a complaint will go up through successive layers within the chain until it reaches a layer where the redress can be granted satisfactorily or refused. We are planning to remove it from the chain of command to the extent that complaints will be, if they are serious enough and need to be, referred to a panel which will be outwith the chain of command, but still within the Service itself.

Mr Caplin: But that is a very difficult area that we are still contemplating and we have not come to a conclusion on, which is why I said what I did in my introductory answers to your question, that we would welcome other views on this.

Q88 Mr Cran: Okay, we will read your answer when it is down in black and white with great care. The second to last of my questions under this heading is simply the Tri-Service Redress of Complaints Panel. What is your thinking on this?

Mr Caplin: I think Teresa did ----

Q89 Mr Cran: Is that the panel you were just referring to?

Mrs Jones: Yes, that is the panel I was referring to.

Mr Caplin: I think on this occasion I was answering your questions directly on the first one, thinking you might have a second question coming on the panel, and I think I was probably right.

Q90 Mr Cran: Absolutely, yes. So your thinking is really quite developed about the establishment of this panel?

Mr Caplin: No. This is a very, very difficult area and we have not developed fully the proposal. On the whole redress issue, and I am being absolutely frank now, if there are views from the Select Committee, we would really welcome hearing them at this early stage. That is the advantage of this rather strange process that we are undergoing where we do not even have a piece of legislation. We have got some ideas as to how it might work, but they are certainly not formulated so as to take us to a process of introduction in a Bill, so it is at that very early stage. For instance, should it have two members or probably three? We do not know. What sort of stars - should it be two-star? These are the sort of questions that we are tackling, along with how the whole process would work and what independence there would have to be from the complainant's chain of command. All of those are areas that we will have to look at. I think ultimately what we will also have to reflect on is: if it is a member of the Navy, should it be dealt with by a different Service or should it be dealt with on a tri-Service basis? There is lots to look at in terms of redress.

Q91 Mr Cran: You will certainly have to have decided by the time the Bill comes before us.

Mr Caplin: We will certainly have to have decided, yes.

Q92 Mr Cran: Can you give us any idea of the time-frame by which you will take a decision?

Mr Caplin: I am assuming that we might get some views from the Select Committee in the next six weeks or so. We will undertake to respond to those views in the usual way, so that would be within about three months roughly. I do not want to be coming back here and Bruce saying, "Four months - what have you been up to?", which he has on a number of other occasions.

Chairman: There are just two questions, Minister, on parliamentary scrutiny. The Select Committee on the Armed Forces Bill, the way it was dealt with allegedly by Parliament was a travesty. I am not sure if you were in the Whips' Office then, but there were two Ministers on the Government's side, a PPS, a couple of trustees and, on the Opposition side, two Opposition spokesmen for the Conservatives, an Opposition spokesman for the Liberal Democrats and another trustee on their side.

Mr Crausby: Chairman, I was one of those.

Mr Roy: You will never have been called that in your life!

Q93 Chairman: Trustworthy!

Mr Caplin: Chairman, I do not think I was in the Whips' Office. I was probably in the Leader of the House's office, which makes it even worse!

Q94 Chairman: And Rachel was the other trustee. I thought this was done incorrectly and that it has to be done more by way of backbench scrutiny rather than the Executive and the wannabe Executive scrutinising their own legislation. Now, for this legislation, will it be a committee like the Select Committee on the Armed Forces Bill where Ministers and Shadow Ministers will be part of the scrutiny of this legislation, so you will be scrutinising, or your successor will be scrutinising his own Bill, which I find lamentable, a travesty, deplorable, and in a one-hour speech, I had a Whip standing two feet away from me, glaring at me for an hour and I was very, very, very angry, or are we going to have the proposed legislation coming to this Committee for scrutiny and then once it has come to this Committee for scrutiny, then it goes into the pot for the normal process of legislation, or a good idea would be something like a reinforced Defence Committee with spokesmen from the Government, say, a Minister, the Opposition and the Liberal Democrats? I would like to know your provisional thinking on this please.

Mr Caplin: Well, all of those are still possible as we meet today because I have to enter into discussions with the Leader of the House's office and the usual channels as to how we should approach this, and clearly this is not wholly a matter for me at the Ministry of Defence; I have to take into account the views of Her Majesty's Opposition and everyone else who has a right to comment on this. I hope that we will be able to get some views on that certainly by the time that maybe we respond to the Select Committee. I am well aware of what happened in 2000 and 2001. There was also, I think, a recommendation that the 2005 Bill should properly go to potentially a committee of both Houses or a special committee, and of course the House has made a lot more use of special committees since 1997/98. The principle is that there must be proper and effective parliamentary scrutiny of this Bill and it is absolutely essential to us. This is a big Bill, it is likely to be 300 to 400 clauses, so in terms of changing military law, it is essential it has proper parliamentary scrutiny, and I cannot state that enough. I think that you, Chairman, know me well enough, given my previous roles, to know that I will certainly be, in the discussions that I have with the usual channels, looking for the best solution for Parliament in properly scrutinising this piece of legislation.

Q95 Chairman: Well, that is very good because I am not suggesting that this Committee is the sole repository of people with interests or expertise in defence, but it has a fairly high percentage of the Members who are interested in defence and we would have the apparatus to support and to provide the necessary additional expertise which would make it a reasonably effective form of scrutiny. This is not going to be surely a party-political issue, so it is not going to rise to an intensity of debate because this is, I would have thought, a fairly consensual subject within the political process, so obviously others will think on this, Minister. My last question is that in your letter to us of 25 November, you said that you were "giving careful consideration to the possible future arrangements for the renewal of Service law, but have not reached a firm view". Have you now reached a view and, if so, what is it? If not, when do you expect to reach a decision and what options are being considered?

Mr Caplin: I am afraid the answer today, Chairman, is the same as it was on 25 November in that we have not reached a final view about that, but I would certainly be willing to share that with the Committee as soon as we have.

Q96 Chairman: Well, thank you all for coming along

Mr Caplin: Thank you very much, Chairman.