 House of Commons |
Session 2005 - 06 Publications on the internet Standing Committee Debates Special Standing Committee Debates |
Armed Forces Bill |
|
Column Number: 105 Select Committee on the Armed Forces BillThe Committee consisted of the following Members: Chairman: Mr. George Howarth †Baird, Vera (Redcar) (Lab)Breed, Mr. Colin (South-East Cornwall) (LD) †Burns, Mr. Simon (West Chelmsford) (Con) †Burrowes, Mr. David (Enfield, Southgate) (Con) †Campbell, Mr. Alan (Tynemouth) (Lab) Chapman, Ben (Wirral, South) (Lab) Howarth, Mr. Gerald (Aldershot) (Con) †Jones, Mr. Kevan (North Durham) (Lab) †Key, Robert (Salisbury) (Con) †McCarthy-Fry, Sarah (Portsmouth, North) (Lab) †Russell, Bob (Colchester) (LD) †Sheridan, Jim (Paisley and Renfrewshire, North) (Lab) †Touhig, Mr. Don (Parliamentary Under-Secretary of State for Defence) Richard Cooke, Committee Clerk † attended the Committee Column Number: 107 Wednesday 29 March 2006[Mr. George Howarth in the Chair]Armed Forces Bill9.45 amClauses 276 and 277 ordered to stand part of the Bill. Schedule 10 agreed to. Clause 278 Court must consider whether trial by Court Martial more appropriate Question proposed, That the clause stand part of the Bill. Mr. David Burrowes (Enfield, Southgate) (Con): The clause deals with court’s consideration of whether trial by court martial would be appropriate to the mode of trial stage of proceedings. Why is there a difference in the procedure for a court martial as distinct from the civilian system? Under the civilian system, when dealing with mode of trial in a magistrates court or the equivalent, previous convictions are not accounted for. However, under the procedure in the clause, there will be an opportunity for the Director of Service Prosecutions to inform the court of the defendant’s previous convictions. The usual procedure in respect of mode of trial is to consider the seriousness of the offence and the powers of sentence in relation to that offence, not the circumstances of the offender. Under the civilian system, previous convictions come into account on conviction. The powers of sentence are particularly relevant when considering the defendant’s previous convictions, but not when considering mode of trial. Will the Minister outline the differences and explain them? The Parliamentary Under-Secretary of State for Defence (Mr. Don Touhig): If the Director of Service Prosecutions allocates a case for trial by the service civilian court, the Judge Advocate has to decide before arraignment—that is, before putting the charge to the defendant, asking for a plea—whether to try the charge. He will take into account the nature of the case, its seriousness, his powers of punishment, any representations by the prosecution and defendant, and any other circumstances. He can then try the charge or refer it to the court martial. That gives the Judge Advocate a similar power to magistrates in England and Wales, as provided for under the Criminal Justice Act 2003 in respect of offences that may also be tried on indictment, as they can send such cases to the Crown court. As a defendant has the right to elect for trial by the court martial under
Mr. Burrowes: To take my point further, why are a defendant’s previous convictions to be introduced at that stage? I want to probe that point. If the Minister does not have an answer now, perhaps he will add this to the list of notes that he is to send to us. Vera Baird (Redcar) (Lab): I wonder whether there is any difference between the civilian jurisdiction and the jurisdiction under the clause. Can the magistrate still commit for sentence if, when the person is convicted at a lower court, it is found that his previous convictions make him too serious to be dealt with there? If there is no equivalent power to commit for sentence from that court up, it is important that the previous convictions be considered at the outset, so that bad offenders may go the court that can give them a worse punishment. I do not know whether that is the position; this is just an inspired guess. Mr. Burrowes: I am grateful to the hon. and learned Lady for that intervention. I thought that there was a stage in the proceedings when, if it was considered that the powers of sentencing were insufficient, there would be an opportunity for the matter to go up. Clarification can be provided later. Mr. Touhig: I am grateful for the hon. Gentleman’s last point. If he will bear with me, I need to take some advice, because things are a little more complex than one anticipated. I will to write to him and ensure that all Committee members have a copy of the letter. Question put and agreed to. Clause 278 ordered to stand part of the Bill. Clauses 279 to 287 ordered to stand part of the Bill. Clause 288 Commencement of sentences of the Court Martial and Service Civilian Court Question proposed, That the clause stand part of the Bill. Mr. Burrowes: I want to put on the record a point that came up during our visits, particularly to Oman, in speaking to members of the Royal Air Force about the effect of certain sentences on service. This is an opportune time to raise the different impacts of conviction in the three services and the concern expressed to me and other Committee members about that, despite the fact that we are moving to a tri-service process under the Bill. There was concern, given the length of service in the RAF, that conviction and sentence could have a dramatic impact on a person’s future career prospects. Bob Russell (Colchester) (LD): Will the hon. Gentleman confirm that it was observed to us that when people are on joint or tri-force deployments, how
Mr. Burrowes: Yes, I am grateful for that intervention. There was a concern about consistency and, as we are moving to harmonisation, there needs to be an approach that is fair to the unique ethos and nature of the different services. As I understand it, once a person in the RAF blots their copybook, there is a four-year period in which to overturn that, which would have an impact on their career. Will the Minister tell us how that will be properly reflected in the Bill’s implementation? Mr. Touhig: The clause provides for sentences passed by the court martial or service civilian court to start at the beginning of the day on which they are passed. Exceptions to that are suspended sentences of imprisonment, or service detention, or where a sentence is passed by the court martial on appeal from the service civilian court. In the latter example, the clause provides that the sentence be treated as though it began on the day that the service civilian court passed sentence, unless the court martial directs otherwise. The clause is subject to any other power in the Bill directing that a sentence shall take effect otherwise than mentioned in the clause. I am aware of the point made by the hon. Member for Enfield, Southgate, as colleagues have spoken about that subject and I have encountered concerns over it, expressed in particular by people in the Royal Air Force. Colleagues might remember that we took evidence on this matter on 15 March, or thereabouts. Having listened to the points that have been made, I undertake to give the matter some thought. I hope to be able to bring some information forward to colleagues before we finish considering the Bill in House. Question put and agreed to. Clause 288 ordered to stand part of the Bill. Clauses 289 to 319 ordered to stand part of the Bill. Clause 320 Power to make provision in consequence of criminal justice enactments Question proposed, That the clause stand part of the Bill. Mr. Burrowes: The clause deals with the power to make provision in consequence of criminal justice enactments. The Minister’s team might have sympathy with me when I express concern about the prospect of seeking to enact in secondary legislation the many criminal justice enactments made since 1 January 2001. Practitioners will know how many enactments have been made, and how difficult it is in practice to straddle a number of statutes to administer justice properly. I also understand that the Ministry is seeking to deal
We have an opportunity to harmonise to an appropriate extent matters relating to the civilian system. We are seeking to do so in the Bill in a number of ways. We have had at least 18 months to consider those matters so that we can properly scrutinise them as primary legislation. I am therefore concerned that the clause allows all criminal justice enactments from 1 January 2001 to be delegated to secondary legislation. That seems to be a wide provision. The Committee has expressed a concern that we have not had sight of secondary legislation, which dates back a number of years. We should be taking this opportunity to deal with matters through primary legislation where possible. I seek also to make the case that the proper way forward would be to retain the annual renewal procedure, so that we could deal with the raft of criminal justice enactments and consider any consequential provisions at that point. That would be a more appropriate mechanism to deal with such issues than delegation to secondary legislation. Robert Key (Salisbury) (Con): I endorse entirely what my hon. Friend has said. I know that I have something of a reputation in this Committee for asking about secondary legislation and statutory instruments that we really should consider. To be fair, the Minister has been generous in agreeing. It is difficult for the Committee to do its work properly if we do not see the statutory instruments. Clause 320 is pretty brash. The shadow of the Legislative and Regulatory Reform Bill is hanging over the House, but it is not to be supposed that we are content with subsection (2), which says:
a list of people
We also read in subsection (3)(c) that “a relevant provision” includes
That is incredibly broad. Never during my time in Parliament do I recall giving Ministers that much power without even seeing the secondary legislation that the clause proposes will bring such measures into effect. I hope that the Minister can convince us that it is a sensible thing to do, and that we see some statutory instruments before the Committee finishes its work. Mr. Touhig: The clause replaces provisions in the Armed Forces Act 2001. It provides the Secretary of State with powers to make orders by secondary legislation respecting any criminal justice Act or secondary legislation passed on or after 1 January 2001 to amend the law of England and Wales with such modifications as the Secretary of State considers appropriate. Column Number: 111 The clause also allows appropriate changes to be made to service law following any change in the law relating to the civilian justice system. Areas such as police powers, prosecutions, bail, evidence and procedure in criminal courts are most likely to be the subject of equivalent provisions. 10 amMr. Simon Burns (West Chelmsford) (Con): The Minister said that the clause replaces powers in the 2001 Act. Does it replace them with identical powers or are they changed? Mr. Touhig: My understanding is that the powers are identical to those that they are replacing. Allowing such changes to service law to be made by means of secondary legislation will avoid having to enact primary legislation whenever changes are made to the criminal justice system as it applies to civilians. However, to ensure appropriate parliamentary scrutiny, an order will be subject to the affirmative resolution procedure if it adds to, replaces or omits any part of the text of an Act. Bob Russell: To follow on from the question asked by the hon. Member for West Chelmsford (Mr. Burns), if there has been no change and the clause just rephrases what is already in law, on how many occasions since 2001 has the Secretary of State been required to use the current legislation? Mr. Touhig: I cannot really give the hon. Gentleman an answer, but I will make inquiries and ensure that he has that information. The hon. Member for Enfield, Southgate also mentioned the annual examination of these matters. As I have made clear, I intend to table an amendment to make that provision, which I think will be welcomed by all members of the Committee. It is important, as I have said, that the Committee is given the opportunity to scrutinise such issues. I am conscious of the point made by the hon. Member for Salisbury (Robert Key), because I believe that it is important for colleagues to have the information about how we intend to use secondary legislation and how it will affect the provisions that we are considering. If, having examined the comments made, I feel that I have to get something out urgently to colleagues on how we will use the clause, I will do so as quickly as possible. Question put and agreed to. Clause 320 ordered to stand part of the Bill. Clause 321 ordered to stand part of the Bill. Clause 322 Burden of proof as respects excuses Question proposed, That the clause stand part of the Bill. Column Number: 112 Mr. Burrowes: I have a similar question on the burden of proof to the one that I asked about the equalisation with the civilian system. Why is there a difference in the burden of proof required from that in criminal proceedings, in which a defence is raised on the grounds of a lawful or reasonable excuse and considered on the balance of probabilities of whether it is more likely than not that a defendant had such an excuse? The prosecution then needs to prove beyond reasonable doubt that there was not a lawful or reasonable excuse. The burden of proof set out here is that the defendant is to be treated as not having had a lawful or reasonable excuse
I understand that what is regarded as sufficient could vary, which may lead to different determinations and inconsistency in dealing with the burden of proof. That burden is dealt with properly in the civilian system through the balance of probabilities. What is the rationale for the difference in the military system? Mr. Touhig: The clause deals with reverse burdens of proof: that is to say, the element of some offences that requires the defendant to bring formal evidence to support his contention that he had a reasonable or lawful excuse for acting as he did. It requires an accused to provide sufficient evidence that he had such an excuse before he can rely on that as a defence to the charge. As the hon. Gentleman says, what is sufficient evidence will vary with the circumstances, but a defendant cannot simply claim that he had a lawful or reasonable excuse without producing some evidence to support that claim. On the other issue that the hon. Gentleman raised, I will look at his comments in Hansard and write to him and other colleagues to give a response. Question put and agreed to. Clause 322 ordered to stand part of the Bill. Clauses 323 to 325 ordered to stand part of the Bill. Clause 326 Terms and conditions of enlistment and service Mr. Touhig: I beg to move amendment No. 43, in clause 326, page 163, line 14, leave out paragraph (k). The Chairman: With this it will be convenient to discuss Government amendment No. 44 Mr. Touhig: A person who enlists in one of the services agrees to join for a specified period of regular service, and perhaps for a subsequent period in the regular reserves. A person enlists in the Army on the understanding that he will serve in a particular corps. Clause 326 gives power to the Defence Council to make regulations for the terms and conditions of service, in particular, the period of regular and reserve service, the ability of a person to seek to end or continue his service, and restrictions on where some persons might be required to serve. Clause 326 largely
Amendment No. 43 removes the Defence Council’s power under clause 326(2) to make regulations about part-time service. Those regulations would be applicable only to members of the home service battalions of the Royal Irish Regiment. As those battalions will be disbanded in August of next year, that power will not be required beyond that date. Amendment No. 44 removes clause 326(4), which describes a condition of service that might be included in home service regulations, and so it follows that that will no longer be required. With those explanations, I hope that the Committee will accept the amendments. Amendment agreed to. Amendment made: No. 44, in clause 326, page 163, line 18, leave out subsection (4).—[Mr. Touhig.] Clause 326, as amended, ordered to stand part of the Bill. Clauses 327 to 329 ordered to stand part of the Bill. Clause 330 Redress of individual grievances: service complaints Question proposed, That the clause stand part of the Bill. The Chairman: With this it will be convenient to discuss the following: New clause 6—Grievance procedure—
New clause 24—Military Complaints Commissioner—
Column Number: 114
|
| |
| ©Parliamentary copyright 2006 | Prepared 30 March 2006 |