Armed Forces Bill |
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Robert Key: This is an important clause, and we have heard a lot of evidence from relatives of those involved at Deepcut and a number of other incidents. We are considering the treatment, or rather the ill-treatment, of subordinates. Interestingly, clause 11, which is entitled “Misconduct towards a superior officer”, provides for a 10-year sentence for using violence or threatening behaviour against a superior officer, or two years for any other misconduct such as disrespect, while clause 22 provides for a maximum sentence of only two years for the ill-treatment of a subordinate. In response to the Defence Committee report on duty of care, the Ministry of Defence stated:
We all know that the armed forces have suffered a great deal of negative publicity following Deepcut and other incidents. By treating violence or threatening behaviour towards a superior far more harshly than ill-treatment of a subordinate, I am afraid that the Government might be reinforcing that negative message. This is an opportunity to put that right. The Government need to send a strong message that misconduct by superior officers, or indeed by superiors of any rank, is taken as seriously as misconduct towards them. That is the purpose of our proposal. Mr. Touhig: I am not sure whether the hon. Gentleman intended this, but, were the amendment to be accepted, one of its first effects would be to extend the range of people who could commit offences of ill-treatment of subordinates. The current provision means that only officers, warrant officers and non-commissioned officers can commit that offence. In other words, able rates, private soldiers and airmen cannot. If anyone—for example, airmen—could commit the offence, it would be much harder to distinguish who was the superior and who the subordinate in that lowest rank, and the proposed offence would be difficult to use. Perhaps the more substantive issue is the change from an offence of ill-treating a subordinate to one of using violence, or threatening or disrespectful behaviour, towards a subordinate. I believe that I understand where the hon. Gentleman is coming from. His new draft of the offence is based on clause 11, which deals with misconduct towards a superior officer, but that clause relates to behaviour from the bottom up, whereas clause 22 is about behaviour from the top down—the other way around. One might wonder why the two clauses are not the same. We do not think that they should be. We believe that there should be an offence specifically covering conduct by superiors to subordinates, and that it should be drafted to cover a wide range of behaviour. Therefore, the term “ill-treatment” used for the offence in clause 22 is intentionally wide. It covers violence and threats as well as other types of ill treatment. We have also included recklessness as part of the mental element of the offence, so an offence will be committed if the ill treatment is intentional, or if a superior uses harsh discipline, for example, and knows that he might be going too far, or is reckless as to whether he is going too far. The hon. Gentleman’s amendment would limit that significantly, which would not be appropriate. In any event, two elements in the amendment—using violence and some aspects of threatening behaviour—are already criminal conduct offences and could be charged as such, if that were more appropriate. On the third element, we do not think it appropriate for there to be an offence of disrespectful behaviour towards a subordinate. On occasion, superiors need robustly to point out a subordinate’s error. That is an essential part of a disciplined hierarchical system. It might be disrespectful, but we do not want to make it an offence. Robert Key: But what about the extraordinary discrepancy in sentencing—10 years one way, but only two years the other? How can the Minister justify that? Mr. Touhig: If the bullying amounts to a serious assault, it will be prosecuted as such and the sentence could be longer than 10 years’ imprisonment. Clause 11(2) and (3) equate to clause 22, and the maximum sentence for those offences is also two years, not 10. Anything involving violence attracts up to 10 years under clause 11. Question put and agreed to. Clause 22 ordered to stand part of the Bill. Clause 23 Disgraceful conduct of a cruel or indecent kind Question proposed, That the clause stand part of the Bill. Mr. Howarth: In some respects, the Bill reflects the original wording of the Army Act 1955, but it removes the expression “unnatural acts”. I believe that we all know to what that refers. Time has moved on, and I do not intend to dwell on the matter. I have some wonderful quotes from the debate on the 1955 Act, but perhaps we might save them for a private rather than a public sitting. They would make interesting reading for the Committee. It would be helpful if the Minister gave some indication of what is meant by clause 23(1)(b), which deals with someone who commits an act and
“Disgraceful” is an interesting word, because it hardly has application any more, save, I suppose, when it attaches to some of my erstwhile colleagues who are invariably described as disgraced. It seems to apply only to Tories; members of other parties who commit equal felonies do not seem to have the same adjective ascribed to them. 4 pmThe Army has a document on values and ethos. I expect that the other two services have similar documents, as the ethos of the armed forces is extremely important. What had the Minister in mind when he agreed to the inclusion of “disgraceful”? I approve of it—it is a good idea—but did any particular scenarios come to mind when he was discussing the matter with his officials? Mr. Simon Burns (West Chelmsford) (Con): May I also press the Minister? He will know that the explanatory notes on this clause explain the meaning of “cruel” by saying:
Does that explanation cover hunting? If the answer is yes, what would happen if a member of the armed forces, based for a time in the United States or Germany, where hunting is legal, were to engage in it and kill an animal? Would that be considered cruel under English law and constitute an offence under the Bill? Mr. Touhig: I can see a letter coming along here. Broadly, the clause preserves an offence that covers a range of behaviour. It has been used, for example, to deal with incidents involving low-level cruelty to animals. To be an offence, the behaviour, which includes an omission to act, must also be disgraceful. Behaviour that might generally be accepted in civilian life, as I gather is the case in parts of England, is not necessarily appropriate and might be disgraceful in the service environment, for instance—it says in my notes—if it involves service personnel in a state of undress at a mess party. If the hon. Gentleman wants further examples, I shall happily write to him and to other members of the Committee. Question put and agreed to. Clause 23 ordered to stand part of the Bill. Clause 24 Damage to or loss of public or service property Mr. Howarth: I beg to move amendment No. 9, in clause 24, page 10, line 35, after “law”, insert
The Chairman: With this it will be convenient to discuss the following amendments: No. 10, in clause 24, page 10, line 40, after “law”, insert
No. 11, in clause 24, page 11, line 5, after “law”, insert
Mr. Howarth: Again, we are back to discussing the extent to which the provisions should apply to civilians. All that I wish to ask the Minister is whether there is a means of providing for disciplinary arrangements if a civilian is responsible for the kind of damage set out here. My question applies equally to clause 25, which we are about to debate, so perhaps we can deal with both at the same time. Mr. Touhig: Like the current service discipline Acts, the clause provides that somebody who is subject to service law commits an offence if he intentionally, negligently or recklessly damages or loses public or service property. It is also an offence for such a person to do an act that is likely to cause such damage or loss if he is reckless as to whether it will have that outcome or he is negligent. Like other offences in the Bill, offences under this clause may be committed by failing to act. They reflect the importance that the services attach to the care of such property. Avoidable loss or damage could undermine operational effectiveness or jeopardise a specific operation. In the worst case, lives could be put at risk, and money could also be wasted. The clause also makes it an offence to damage property belonging to another person subject to service law. We believe that the mutual respect and trust between service personnel deserve to be reinforced by law. The amendments would extend the clause to civilians who were subject to service discipline. As I have said in reference to other amendments, that would make a difference only in cases where the person’s conduct did not amount to criminal conduct under clause 42. The justification for making the conduct an offence in those circumstances is that it is necessary for reasons of discipline. That justification does not apply to civilians, which is why we have not proposed that a civilian should be able to commit such an offence. I hope that that helps the hon. Member for Aldershot. Mr. Howarth: I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 24 ordered to stand part of the Bill. Clauses 25 to 34 ordered to stand part of the Bill.. Clause 35 Annoyance by flying Mr. Howarth: I beg to move amendment No. 29, in clause 35, page 15, line 31, at end insert “and”. The Chairman: With this it will be convenient to discuss clause stand part. Mr. Howarth: Clause 35 relates to offences respecting flying. The amendment has one specific, precise, limited purpose, which is to connect subsection (1)(a) with subsection (1)(c). In other words, I am seeking an assurance that someone who
will not be guilty of an offence unless he does so in the manner set out in subsection (1)(c)—namely, that
I want it to be absolutely clear that any retired airline captain cannot object to a low-flying Royal Air Force aircraft simply because it annoys him or might be likely to annoy somebody else. An offence should be committed only where low flying or any other form of flying is carried out in a reckless or negligent manner. I would like that assurance. I believe from my discussions with officials that it is not necessary to put in the “and”, but I want to hear it from the Minister’s mouth that there will be a safeguard. Mr. Touhig: The purpose of the clause is to set out when it is an offence to fly so as to annoy any person, and there are three tests that must be met. It is a drafting convention that when tests are listed, it is not required that the word “and” be placed at the end of each of them. If the final test is preceded by the word “and”, it is deemed that “and” is read into the end of the preceding lines. In view of the convention that renders the proposed change unnecessary, I hope that the hon. Gentleman accepts that explanation, which I have read into the record to satisfy him. Mr. Howarth: We have had an ex cathedra announcement by the Minister and an assurance on low flying. I do not make a facetious point here, as he knows that low flying is an essential component of today’s Royal Air Force pilot training and the RAF’s ability to perform in theatre depends on being able to low fly. We do not have the low-flying facilities that we used to have in Germany. Therefore, inevitably, some takes place in the United Kingdom, and we would not wish there to be any excuse given to those who seek to make trouble for the RAF. On the basis of the assurance of the convention given to me by the Minister, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 35 ordered to stand part of the Bill. Clause 36 Inaccurate certification Question proposed, That the clause stand part of the Bill. The Chairman: With this it will be convenient to discuss the following: New clause 2—Inaccurate certification—
Amendment No. 152, in clause 364, page 184, line 21, at end insert—
Robert Key: When I read clause 36, I thought there is either a glaring omission or I have simply missed the point. I would be very grateful if the Minister explained what is going on. Clause 36(2) outlines what “inaccurate certification” refers to. Apparently, it refers to Her Majesty’s ships and aircraft and to any aircraft material, and that terminology is repeated in clause 36(3). Does this mean—surely not—that someone could be prosecuted for the inaccurate certification of an aircraft missile but not of a ground-to-air missile, or indeed of a tank? Why is clause 36(2) so restrictive? Mr. Touhig: The effect of clause 36 is as in the current service discipline Acts. It is limited to persons subject to service law because it is a disciplinary offence and, as has been discussed, it is not right to extend such an offence to civilians. Civilians may be disciplined under the terms of their own employment contracts. Clause 36 covers the offence of making or signing a relevant certificate without having ensured its accuracy. To add the proposed wording would bring no benefit. The purpose of the offence is to make the person who signs or makes the certificates ensure the accuracy of their contents. If he does not do so, or if he adds something inaccurate before he signs or makes the certificates, he will be guilty of the offence. New clause 2 is therefore unnecessary and I hope that the hon. Gentleman does not press it. Robert Key: I am afraid that I cannot give that undertaking because we have not cracked the problem of why clause 36 does not apply to anything other than ships and aircraft. I had better try to keep going for a little while to allow the Minister to scratch his head and to look to his left. This is fundamental. It may be terribly simple, but I can foresee all sorts of circumstances in which people will think we were crazy not to have at least raised this issue in Committee. Mr. Touhig: We have included in the offence the sea worthiness or fighting efficiency of ships— Robert Key: Of tanks? Mr. Touhig: Of ships. For aircraft, we have consciously provided for the measure to be wider. It therefore includes all certificates in relation to aircraft and aircraft material, with no express reference to air worthiness or fighting efficiency. Those expressions accurately reflect the procedures for ships and aircraft. In relation to aircraft, there will only be certificates. The proposal would substitute “service material” for “aircraft material”, but the definition of the new term is unwieldy and unhelpful. I do not know whether the hon. Member for Salisbury and his colleagues have had a brainstorming session on what might come of this, but their list includes cannons and so on, while ignoring Land Rovers. There is no point including an itemised shopping list only to restrict the offence further than under the clause. Tying the offence to specific matters, such as the safety or fighting efficiency of service material or of Her Majesty’s aircraft, might allow some actions to fall outside its scope and prevent them from being caught. 4.15 pmMr. Burns: I am very interested in what the Minister says, but I fear that he is not addressing sufficiently the question raised by my hon. Friend the Member for Salisbury. The Minister rightly told us how this part of the Bill will apply to the Royal Navy and the Royal Air Force, but one of my hon. Friend’s main questions was why does it not apply to Army hardware. Mr. Touhig: All three services have systems that require service personnel to check and certify matters such as the safety and working conditions of ships, aircraft and the materials used in and for aircraft. It is vital that checks and certifications are carried out correctly, as the failure to do so could have serious consequences. Mr. Burns: What the Minister has just read out again applies to the Navy and the Royal Air Force. What about the equipment that the Army uses? Mr. Touhig: I think that—the weather is looking good out there—I need to give further consideration to the hon. Gentleman’s point because I am not fully able to give him an answer, although one is coming along now, and it might be of assistance to him. The certification procedure imposed under the RAF and Navy Acts relates to specific important certification procedures for ships and aircraft. There is no desire in the services, including the Army, to create an offence based on certification for the Army. Mr. Howarth: My hon. Friends have raised an interesting point. Having some limited understanding of the importance of certification for aeroplanes, I understand the Minister’s point. Nevertheless, we all welcome his willingness to go away and look at the issue again, because that would be helpful. The Royal Air Force has sophisticated equipment and the Royal Navy has a long history of having to sign-off on the various seaworthy aspects of its ships. However, modern warfare also means that the Army has very sophisticated equipment, and the failure to comply with servicing requirements can put people’s lives at risk and, indeed, lead to the inefficient operation of that equipment. On that basis, I support my hon. Friends and hope that the Minister can go away and think about the issue to see whether it would be appropriate to extend the provisions to Army equipment. Mr. Touhig: I will certainly do that, because the hon. Member for Salisbury makes an important point and I am conscious of the fact that I have not really answered it sufficiently well. I will consider the matters that he has raised and write to him and to other colleagues. If it is appropriate to take further action, we will do so later. Question put and agreed to. Clause 36 ordered to stand part of the Bill. Clauses 37 to 39 ordered to stand part of the Bill. |
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