Armed Forces Bill |
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Mr. Howarth: This amendment is similar to other amendments that we have tabled in which we have sought to extend particular offences to a civilian
This clause, however, deals with what are essentially clerking responsibilities—the maintenance of records. They are set out at some length on pages 8 and 9 of the Bill. It seems to me that there is a case for extending these offences to cover civilians, because offences such as tampering with or suppressing an official document are not simply military offences. Many civilians are responsible for maintaining the database for our military, and it is entirely appropriate that they should be covered. The Minister might well tell me that this issue is covered elsewhere, and if he were to do so, I would listen with interest. However, we must bear in mind the importance of military documentation. We had some experience of that on a recent visit; we discovered that the Royal Air Force attaches perhaps even greater significance to certain information it holds on individuals than do the other two services. Therefore, on this matter, I will need to be a little more persuaded by the Minister than I was last time, and I would be grateful to hear his thoughts. Mr. Touhig: Clause 18 provides that it is an offence to falsify or alter a record, or to fail to make a record when required to do so. Potentially, it covers a multitude of circumstances, such as financial documents and vehicle and equipment usage records—in fact, anything in which information of an official nature is recorded. We are not just talking about paper records; the information may be stored in any form, including electronically. It is essential that records that may later be relied on for operational, security or safety use are accurate. Service personnel who deliberately falsify such records are rightly exposed to the risk of disciplinary action and the offence carries a maximum sentence of two years imprisonment. The amendments would extend this clause so that it applies to civilians subject to service discipline, who will normally be accompanying the armed forces outside the United Kingdom. I explained in relation to clause 1 that the majority of the offences under the Bill cannot be committed by civilians because they exist for purposes of discipline. Although we refer to civilians as being “subject to service discipline”, that does not mean that every aspect of service discipline can or should apply to them. A civilian who made a false record might well be guilty of a criminal conduct offence under clause 42. The offence under clause 18 includes some conduct that is not criminal but, in the case of civilians, there is no need to make such conduct an offence. In our view, the amendment would extend the law to an unnecessary degree. I understand why the hon. Gentleman has sought a deeper reassurance, but I hope that what I have said is sufficient for him to withdraw the amendment. Column Number: 21 Mr. Howarth: Forgive me, I was slightly distracted, but I think I am right in saying that the Minister suggested that clause 42 on criminal conduct provides sufficient protection. I can see from clause 42 that that would apply where that offence were punishable by the law of England and Wales. We are talking about matters that may not be of a nature that would create an offence under the ordinary law of the land. The Minister referred to some of the cases that might apply. Clearly there could be cases where a civilian was involved in the maintenance of records, the tampering with or the falsifying of which might not be subject to the criminal law of the land, but would be a disciplinary offence if committed by serving service personnel. That is why the Bill states that it is a military offence to make a false record. There is a potential gap here. Where a civilian commits what would be an offence if committed by a member of Her Majesty’s armed forces, but that offence was not sufficiently grave or had no application in the civil law of England and Wales, he could escape punishment. Mr. Jones: I am interested in what the hon. Gentleman is saying. Can he give an example of how that would be the case? Mr. Howarth: As I am pressed by the hon. Gentleman, the answer is yes I can. An example might be the falsification of a flying record, which could have an impact on that person’s career. There are myriad scenarios that could be explored where there would be no equivalent offence in the common law of England and Wales. Changing someone’s experience or their qualifications could be extremely damaging. I know that the hon. Gentleman understands the force of that argument because he has been subjected to the same experiences as I have over the last couple of weeks. Therefore we know that records maintained by the military have a substantial bearing on people’s careers, but I doubt whether exercising some kind of jiggery-pokery with those records would constitute a civilian offence. So I am not yet persuaded. Mr. Jones: I think that I am slowly getting the point that the hon. Gentleman is making. But if it were a civilian who had falsified records, there would clearly be a disciplinary issue. If he were sacked, he might go to an employment tribunal, but there would be clear grounds for his dismissal. There is a civil sanction for that individual. Mr. Howarth: I am not sure whether a sanction through an industrial tribunal is the answer. I should not have thought that we wanted to have industrial tribunals involved here. The whole purpose of this is to deal with a military law in a military context. Mr. Jones rose— Mr. Howarth: If the hon. Gentleman wants to intervene, I shall of course give way, Mr. Howarth. We share a surname, so we are concerned about being courteous to one another. Column Number: 22 Mr. Jones: I was not suggesting that an industrial tribunal should deal with this, but clearly the disciplinary system could be used if that person falsified that record. If that person took their case to an industrial tribunal, the case could be defended on the grounds that it was a breach of contract. That is the only context in which I mentioned industrial tribunals. Mr. Howarth: It will probably not assist if I pursue that matter, but I have made the point that the Minister has not addressed the issue that we are discussing. I am not sure whether he can now respond to the further points that I have made. Mr. Burrowes: Could the Minister inform the Committee of a comparable civilian law that would deal appropriately with a situation in which someone holds an office of the Crown, is a Ministry of Defence official, and commits the offence under subsection (4)? What equivalent civilian legislation would deal with that? Mr. Touhig: We are clear that civilians accompanying the armed forces should be subject to service discipline only so far as is essential for the operational effectiveness of our forces and for fairness. It would be wrong to make civilians essentially the same as service personnel when it comes to disciplinary offences. There are other ways to deal with civilians who make false records. Contractors deployed overseas are routinely dealt under their employer’s internal disciplinary system. Alternatively, someone might have committed a criminal offence. Extending to civilians the offence that we are considering would be unnecessary and inappropriate. That is not the best way forward. If there was any question of dishonesty being proved, that would be dealt with under existing employment law. Alternatively, a criminal offence might well have been committed. From our perspective, the primary motive for making civilians accompanying the armed forces subject to service discipline is to make them subject to the criminal conduct offences of England and Wales. In that way, we ensure that they are subject to a system of law compliant with the European convention on human rights and with which they are familiar. We believe that we have covered matters fairly well. Although I understand the points made by hon. Gentlemen, it would go too far to seek to bring civilians within the entire orbit of the military justice system. Mr. Howarth: I am grateful to the Minister for that response, but I am not seeking to bring civilians into the entire orbit of the military justice system, as he describes it. However, there is a clear case that civilians, who are employed in rather large numbers in clerical jobs in the Ministry of Defence, should be subject, in this specific regard, to the same type of sanctions as would be available for military personnel. After all, it is often argued that the reason why civilians are brought into those jobs, many of which used to be done by uniformed personnel, is to free up uniformed
Furthermore, in many instances, civilians and uniformed personnel work alongside one another at a military establishment, particularly as regards these clerical responsibilities, so it seems to me that, in this specific regard—I have accepted the Minister’s assurances on other occasions when I have moved similar amendments—it would be in the interests of good management and of military order for civilians working in that field to be subject to the same discipline as military personnel. I am not persuaded of his argument, unless he has some startling news to impart to me. Mr. Touhig: I reiterate that we do not see the need to extend the system to civilians. If a case involved fraud, there would be ways to deal with that in the existing law. Another case might be covered by employment law. It worries me that the hon. Gentleman wants to extend to civilians the military and criminal justice system that applies to soldiers and that is not appropriate, as we argued earlier. I thought that I had assuaged his fears and I am not clear what more he thinks we can do because, in honesty, there is no evidence to suggest that we should be doing anything different from what the Bill proposes. 3.30 pmAs hon. Members know because of their interaction with the Bill team and others, what we propose has the support of the services. If a serious matter arose we would seek to amend the Bill or to change the law if there was any doubt whatever about it. There are no examples of such circumstances. I fully understand the hon. Gentleman’s point that there is much greater use these days of civilians within, and associated with, the forces, but I do not understand where he wants us to go. The amendments would not be helpful. He has already conceded that it is not appropriate to extend the military justice system to civilians in all the circumstances that he outlined and I urge him to reflect on what I have said. I know that he seeks reassurance, but I do not know what else I can say to help to assuage his fears. I hope that he will not press his amendments but there will be an opportunity at a later stage if he wants to bring to our attention a matter that needs further consideration and reflection. If he can give some examples that would benefit the debate, I promise that I will respond positively and get back to him on the matter. Mr. Howarth: I am grateful to the Minister for his thoughts on the subject. First, simply to pray in aid the support of the present senior officers in the armed forces is not sufficient in itself. If that were all that were required, we would not need to meet. Mr. Touhig: There would be a gap in my life if I did not do so. Column Number: 24 Mr. Howarth: The Minister would just have to meet the generals, the air marshals and the admirals and have done with it, but it is our job to find our way through the proposal and to see whether we can improve things. I do not suggest that we are that much better placed than the aforesaid senior officers. The Minister has not persuaded me and my colleagues and I will tell him why. As my hon. Friend the Member for Enfield, Southgate (Mr. Burrowes) has just pointed out to me, clause 4(4), which relates to looting, states:
I do not want to labour the point unduly, but many posts that previously were occupied by uniformed personnel are now undertaken by non-uniformed personnel, largely to save money to free up the front line. I do not have any objections in principle to that and it has happened under Governments of both persuasions. However, I do not see a remedy in law elsewhere, except that a case might be submitted to an employment tribunal in some other form, which would not be appropriate because I do not think it could take into account the military context, which is what is at issue in respect of the gravity of falsifying documents and records. There would not be a clause on making false records if it were not deemed by the very gentlemen to whom the Minister alluded—the senior officers—to be a military offence that needed to be well provided for in the Bill. I do not pretend that it is a great issue, but I still feel that we should proceed with it. I am sorry that the Minister seems unable to accept that there is a difference between this issue and others that we dealt with earlier. Mr. Jones: I have represented such people—classed as civil servants in my day—who worked at Catterick garrison, and the hon. Gentleman’s proposal would mean that the commanding officer and military establishment there would have to take control of all disciplinary proceedings for all such individuals. That would be even more difficult now, because many of those civil service jobs have gone to private contractors. If we agreed to the amendment, it would extend the role and work schedule of commanding officers at most bases in the UK far wider than the hon. Gentleman would want. For example, if a civilian storeman at a military base falsified accounts to steal or hide losses, the commanding officer would have to take control. Under the current system, the best way to deal with that is through either civilian contractors or, if the storeman is a Ministry of Defence civil servant, the agreements that the civil servants already have with the trade unions. The hon. Gentleman said that there was no remedy, but there is. It is the personnel and disciplinary procedure laid down and agreed between the civil service and the individual contractor. If somebody were to falsify records in a store for pilfering purposes,
Mr. Howarth: The hon. Gentleman has not answered my point about clause 4, which I know has a particular resonance with Labour Members. It is not often that I would pray in aid clause 4, but I find myself doing so. How does he imagine a civilian is dealt with under clause 4? By analogy, the conditions of clause 4 should apply to clause 18. Mr. Jones: We are dealing with two separate issues: the day-to-day running of civilian contractors at bases throughout the country and, in terms of clause 4, which is about looting, a war situation. They are slightly different. If the amendment were agreed to, a commanding officer would have to take over the personnel function of every contractor on every base, and every civil servant. I am not sure that the hon. Gentleman wants to hear that. In terms of disciplinary action—[Interruption.] It is obviously enthralling the hon. Gentleman to listen to me. If the offence were criminal, the ultimate sanction would be police action. The individual’s dismissal would be down to their employment contract with the contractor. The act of dismissal would ultimately be in their contract. If that person were aggrieved, they could take their case to an industrial tribunal, whereby the respondent would be the contractor, not the MOD. If the amendment were agreed to, in every industrial tribunal resulting from such dismissals, the commanding officer of the base would be the respondent. I am not sure whether the hon. Gentleman would want them to be the respondent. Mr. Touhig: This is clearly causing some anxiety and concern, and I want to try to make the process as painless as possible. The hon. Member for Aldershot referred to a suggestion that the sanctions set against service personnel should apply to civilians. To give effect to the proposed amendment, civilians would have to be placed under service discipline even in the United Kingdom, and that has never been the case before. There are five areas of service disciplinary offence that a civilian can commit under the Bill: looting, which is akin to a criminal offence of theft; contravention of standing orders; obstructing a provost officer; offences in relation to custody; and a range of criminal offences set out in clause 42, including incitement and aiding and abetting. They are all areas in which a civilian could have action taken against them if they were in breach of any aspect of the Bill. Under subsection (4), a civil servant, for example, could be disciplined if they made a record with intent to deceive. If appropriate, that civil servant could be prosecuted for fraud, and disciplinary action could follow leading to dismissal. If the clause were extended to civilians, it would apply only to civil servants overseas. Under the Bill, they would be subject to service law. It would not apply in the United Kingdom. I am trying to be helpful so that the hon. Gentleman can support us in this matter. Column Number: 26 Mr. Howarth: I am trying to make the provision applicable to civil servants working in the United Kingdom and not just to civil servants working overseas. Mr. Touhig: As I said, if we extended the provision as the hon. Gentleman suggests, it would apply only to civil servants overseas; it would not apply to civil servants in the United Kingdom. Mr. Howarth: I do not want to detain the Committee unduly on this. There is an issue and I would like to explore it further, perhaps on report. It would be helpful if the Minister could ask his team to provide a note on this. Civil servants in certain circumstances are accountable to the military justice system and we should be clear why that is not the case in this area. Mr. Touhig: I am quite content to accede to the hon. Gentleman’s request to provide him and other Committee members with a note setting out our argument. When he has had a little more time to deliberate on the matter, I hope that that he will not feel it necessary to take the matter further on report. Mr. Howarth: I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 18 ordered to stand part of the Bill. Clause 19 Conduct prejudicial to good order and discipline Question proposed, That the clause stand part of the Bill. The Chairman: With this it will be convenient to discuss the following:New clause 4—Unauthorised discharge of a weapon—
New clause 7—Unnecessary detention or failure to bring up for investigation—
Robert Key (Salisbury) (Con): This gives me the opportunity to say what a pleasure it is to serve under your chairmanship in your new guise, Mr. Howarth. Column Number: 27 I am concerned about the relationship between servicemen and women and civilian contractors in particular. Anyone who is familiar with the way in which our service personnel are trained to handle weapons cannot be filled with anything other than admiration for the meticulous training and sheer routine that is drilled into them on how to handle weapons in all circumstances. Our soldiers—men and women—are trained above all for combat conditions. We have heard that civilian contractors are getting nearer and nearer the front line and new clause 4 would introduce a provision covering the unauthorised discharge of a weapon. I understand that a person may be subject to service law, but the new clause would add the words
I am concerned about the circumstances that might face civilian contractors. The useful explanatory notes state for clause 19 that
There are many states of mind that might crop up, and if civilian contractors, for example, come under fire, I can imagine that states of mind might include terror, fear and panic. I am not entirely convinced that, in those circumstances, they would not reach for the nearest weapon and discharge it in an unauthorised manner. That suggestion is not fanciful. 3.45 pmI would like to know in what circumstances civilian contractors have access to weapons. What are they told about finding themselves under fire or in a combat situation? Are they told that they may under no circumstances touch a weapon or that they should do so? If they are told that they should, do they receive any training? If civilians, for reasons of self-defence or for any other motive, and given a particular state of mind, decided to discharge weapons, that could indeed be prejudicial to good order and discipline. That is the point of this straightforward, probing new clause, and I would be grateful if the Minister enlightened me on it. Mr. Touhig: The new clause would create two new offences: unauthorised discharge of a weapon and causing or contributing to the unauthorised discharge of a weapon. Both would be applicable to service personnel and to civilians accompanying the armed forces. Already, the negligent discharge of a weapon is covered in respect of the offence of negligently performing a duty, or conduct to the prejudice of good order and discipline. Where the action has a more serious result, other offences, even including manslaughter, may be considered. We therefore consider the new clauses unnecessary and too wide. A person—a civilian or a member of service personnel—who did anything, even without any negligence, that ultimately resulted in the firing of a weapon, without authority, would be guilty of an offence. Column Number: 28 The provision on conduct prejudicial to good order and discipline is used frequently and is familiar in the armed forces. Typically, it applies to behaviour that is not specifically catered for by other, more defined service offences in the Bill. One purpose of new clause 4 might raise the question of how to deal with cases such as the fake photographs of abuses that were made by some soldiers and provided to a newspaper a while ago. That conduct could have been punished as conduct to the prejudice of good order and discipline but for the fact that, at the time of the offence, it was not beyond doubt that those involved were subject to service law. Usually, such conduct amounts to an existing criminal or disciplinary offence. For extraordinary conduct that does not fall within the definition of an offence, it is better to discharge those involved than to create a new and vague offence. I hope that, after that explanation, the hon. Member for Aldershot feels that he has a better understanding of what we are aiming to do through the Bill. I hope also that I have a better understanding of his argument. Mr. Howarth: I would also like briefly to explain new clause 7, which is very much probing. I believe that a similar proposal appears in the Army Act 1955 and that the Australians have a similar measure in their legislation. It would make provision to ensure that there was some sanction against those who unnecessarily detained a person in arrest or confinement. We are trying, as the title of the new clause suggests, to secure an obligation to speed up the investigation of offences. The Minister might be able to tell us something about that. Mr. Touhig: Forgive me, Mr. Howarth, as I did not touch on the question that the hon. Member for Salisbury (Robert Key) asked about whether civilian contractors may carry weapons. Civilian contractors with our troops are not allowed or entitled to carry arms on operations. That is partly for their safety and partly for that of our troops. They have not been trained. It would also be a breach of international law for them to fight, in any event. I think we touched on that matter a little earlier. I am sorry, but what did the hon. Member for Aldershot want to pursue? |
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