Select Committee on Armed Forces First Report

Conclusions and recommendations

1.  We commend the Government for bringing forward a motion that has enabled us to meet in public to conduct our formal consideration of the Bill. (Paragraph 5)

2.  We strongly support the Select Committee approach adopted for the consideration of the Bill. This approach may not be appropriate for all Bills, but was invaluable for this one. We recommend that the Government considers this procedure for other legislation, in addition to future Armed Forces Bills. (Paragraph 6)

3.  We urge the Government to provide more detail on the proposals that will be included in subordinate legislation and how they will work before the House of Commons completes its consideration of the Bill. (Paragraph 10)

4.  We believe that the Armed Forces are distinct from other parts of society and that the work they undertake on the nation's behalf requires a separate system of Service law. (Paragraph 14)

5.  Appreciating and understanding the military context is essential to the administration of justice in the Services. (Paragraph 17)

6.  The importance of the military context is most apparent when considering the hostile and dangerous situations that Service personnel can encounter on operational deployment. However, Service law must be equally applicable in operational and non-operational environments, and the military context is also important in non-operational environments. (Paragraph 19)

7.  Service law needs to be framed in such a way that operational effectiveness is supported. It should protect Service personnel when they are conducting operations and provide an appropriate framework for justice if they act outside the law. Service men and women should have confidence in the system and know that if they act within the law they will be supported by the chain of command and that if they act outside the law they will face justice. That confidence will be provided only by clarity. (Paragraph 26)

8.  We do not consider operational effectiveness to be constrained by current rules of engagement although there may be circumstances in which Service personnel would be constrained in acting against new threats that are emerging. We urge MoD to ensure that rules of engagement and their associated training keep pace with the threats now faced by Service personnel on deployment. (Paragraph 28)

9.  We were impressed by the level of judgment and self-restraint that Service personnel are asked to exercise in complying with their rules of engagement. Rules of engagement relating to the use of force should be sufficiently flexible to enable Service personnel to protect themselves and others without risk of legal consequences. (Paragraph 30)

10.  We have received no evidence to suggest that the recent changes to the military justice system made as a result of judgments in the European Court of Human Rights have been detrimental to Service personnel. (Paragraph 32)

11.  Human Rights legislation and challenges to the military legal system in the European Court of Human Rights do not place Service personnel at greater risk: they provide additional protection by strengthening the military justice system. (Paragraph 33)

12.  We note the concerns of Service personnel about the role of the media and support calls for the media to provide more balanced and accurate coverage of the work of the Armed Forces on deployment. (Paragraph 35)

13.  We recognise the thinking behind and welcome the establishment of a tri-Service system of military justice. Not all operations or military establishments will be tri-Service, but that is the direction in which the Armed Forces are moving, and the pace of change is swift. The Armed Forces will need to assess how the proposals in the Bill might impinge on the culture of each Service. (Paragraph 41)

14.  We are content with the proposals for aligning the jurisdiction and powers of punishment of Commanding Officers of the three Services. (Paragraph 43)

15.  We were impressed by the positive response to the Army's revised administrative action procedures, and we recommend that they should be reflected across the other Services. (Paragraph 45)

16.  We are content with the provisions that set out the Commanding Officer's duty to inform the Service police. MoD should ensure that, in addition to the provisions in the Bill, guidance makes it clear that incidents are reported promptly to the relevant police force. (Paragraph 48)

17.  We emphasise the importance of Commanding Officers exercising their responsibilities to inform the prosecuting authorities of any relevant mitigating factors and the context in which events occurred. (Paragraph 50)

18.  We welcome the fact that the mechanisms for support of the accused are under review. (Paragraph 51)

19.  The majority of the Committee do not consider that the removal of the Commanding Officer's power to dismiss serious cases will undermine his central command and disciplinary role in a unit. Commanding Officers to whom we have spoken were not resistant to the changes which the Bill makes. The Committee recognises the importance of retaining the integrity of the chain of command but there were reservations among some Members on the potential risk to the chain of command by the removal of the Commanding Officer's powers to dismiss serious cases, especially on active operations. (Paragraph 56)

20.  Those we spoke to during our visits in the United Kingdom and abroad expressed confidence in the shooting incident policy, which they considered provided assurance and confidence for the soldiers in the front line. (Paragraph 59)

21.  Criticism of investigations in Iraq should be considered in the light of the extremely difficult environment in which the Special Investigation Branches are operating. Those who advise Iraqi civilians not to co-operate with police investigations in order to pursue compensation claims do a disservice both to their prospective clients and to the Armed Forces. We deplore this practice. We are therefore drawing this aspect to the attention of the Law Society and the Bar Council, inviting them to consider whether touting for business in this way represents an acceptable professional practice on the part of those subject to their respective regulation. (Paragraph 62)

22.  We welcome the announcement that Her Majesty's Inspectorate of Constabulary will inspect the Royal Military Police's Special Investigation Branch. Such an inspection regime will raise standards in the Special Investigation Branch and raise public confidence in its work. We recommend the HMIC inspection regime is extended to the rest of the Royal Military Police and the other two Service police forces. (Paragraph 65)

23.  We welcome the general principle of applying the provisions of PACE to the military system where appropriate, and accept that it is not necessary to set out those provisions in the Bill. (Paragraph 68)

24.  Parliament must have scrutiny of the detailed provisions in secondary legislation, rules and guidance that will implement PACE-like provisions in the military system. (Paragraph 69)

25.  We recognise the merit of bringing the tri-Service system under a single prosecuting authority. (Paragraph 70)

26.  Whilst we appreciate the difficulties involved in defining military experience in statute, we do consider it important for the Director of Service Prosecutions to have had military experience. (Paragraph 73)

27.  We are content that the Attorney General, as the Government's principal legal adviser, will retain an advisory and superintendent role in respect of the new Director of Service Prosecutions. (Paragraph 75)

28.  We welcome the enhancements introduced by the Judge Advocate General to improve the efficiency of courts martial and reduce delay in the system. (Paragraph 77)

29.  We support the establishment of the standing court martial. However, officers told us during our visits in the United Kingdom and abroad that sitting on a court martial panel can be disruptive. We urge MoD to ensure that a flexible approach is taken to the appointment of court martial panels. (Paragraph 79)

30.  We recommend that the Government ensures that the necessary legislation is implemented to allow for the use of video links in Service courts. (Paragraph 81)

31.  We consider it appropriate for responsibility for the administration of military courts to remain in MoD. (Paragraph 82)

32.  We are content to retain panels of three for cases equivalent to those tried in Magistrates' Court and of five for those more serious cases equivalent to those tried in a Crown Court. The Minister urged us not to put the size of the court martial panel on the face of the Bill. (Paragraph 84)

33.  We recommend that for cases that involve technical issues specific to a particular Service, such as navigation offences, the panel should be from the same Service as the accused. We agree with the Chief of the General Staff and the First Sea Lord that there should be a presumption for single service panels unless there is good reason for mixed panels. We recognise that there will be circumstances when a mixed panel is considered appropriate. In such cases it should be appointed with the senior member, and the majority of members, coming from the same Service as the accused. (Paragraph 86)

34.  We believe that guidance to Judge Advocates should continue to emphasise the desirability of courts martial reaching unanimous decisions whenever possible. But we do not believe that the Bill should impose a requirement of unanimity. (Paragraph 92)

35.  We accept the arguments for extending the jurisdiction of courts martial so that they may consider serious cases. However, we note that, unless there is a specific need to try such cases by court martial, public confidence may be better served by their being tried, as now, in the civilian system. (Paragraph 94)

36.  We accept MoD's argument that it would be inappropriate and unnecessary for the accused to have a right to elect to be tried in the civilian courts rather than at court martial. (Paragraph 97)

37.  We consider it essential for Judge Advocates to have a military understanding. (Paragraph 98)

38.  We encourage the Department for Constitutional Affairs to ensure that Judge Advocates have access to all the appropriate training, particularly in relation to forensic evidence. (Paragraph 99)

39.  We consider it essential that the lay members of the court martial panel are involved in sentencing in order to provide Service context to those deliberations. We are therefore not persuaded that it would be beneficial for the Judge Advocate to sentence alone. (Paragraph 102)

40.  We consider that the presence of the Judge Advocate to guide the panel on its sentencing role should be sufficient protection to ensure that no extraneous material is considered by the panel in its deliberations, which the accused has not had an opportunity to comment on. (Paragraph 103)

41.  We urge MoD to pursue the possibility of providing a 'slip rule' for courts martial. (Paragraph 105)

42.  We are content with the provisions in the Bill that remove the anomalous two-tier approach to civilians subject to Service discipline. (Paragraph 106)

43.  We urge the Government to consider how the legal situation, applying to Service personnel and civilians subject to Service discipline in Cyprus, might be clarified. (Paragraph 108)

44.  We recommend that MoD ensure that civilians who are to be subject to Service discipline are provided with clear and accessible guidance as to their position under the law. (Paragraph 109)

45.  We welcome the establishment of the Service Complaint Panel as a mechanism to consider complaints at the highest level. The changes proposed in the Bill will allow complaints to reach this level more swiftly and will provide the Service Complaint Panel with the power to grant redress as it sees fit. The addition of an independent voice in appropriate circumstances is also welcome. (Paragraph 116)

46.  The question that MoD and the Armed Forces need to address is whether the discrepancy between the level of bullying and harassment suggested by the Services' continuous attitude survey and the few cases of bullying and harassment that reach the Service Board level is due to the satisfactory resolution of those complaints at lower levels in the complaints process. If that is not the case, MoD must look again at the problem of ensuring that Service personnel feel able to make a complaint and that it will be dealt with fairly. (Paragraph 119)

47.  We are clear that there is a need for robust and timely redress of complaints. A wide range of circumstances may be covered by the redress system, from relatively trivial matters through to the most serious abuses of bullying and harassment. MoD has, as a result of the various reviews undertaken into training, provided additional resources to improve the accessibility of the complaint procedures. We are not convinced that this is sufficient, and we note that the Government has said that they will consider the need for further changes. (Paragraph 121)

48.  We remain unconvinced that an Ombudsman is the appropriate way to deal with problems with redress of complaint. Similarly, a Commissioner, as some on the Committee have suggested as an alternative, would not, in our view, serve the sort of purpose required. Nevertheless, we believe there is scope to deal with grievances more effectively, particularly those involving cases of alleged bullying. In our view, the overriding need is to draw a clear distinction between the proper exercise of discipline in a military context and incidents which cross over the line into abuse or bullying. We recognise that there is a delicate balance to be struck. (Paragraph 125)

49.  We note the fact that MOD has an anti-bullying policy. Consistent with the provisions elsewhere in the Bill, it should be developed on a tri-Service basis. However, we recognise that a policy of this kind can only be enforced if there are people designated to make sure that it is applied in appropriate individual cases. (Paragraph 126)

50.  We understand that Parliament, the Government and the Services will need time to digest and consider the Deepcut Review undertaken by Nicholas Blake QC, and we would not want proposals to be introduced hastily. We think it inappropriate to make recommendations on the issues on which Mr Blake commented prior to the Government response to the Deepcut Review. We doubt that the Government response will be swift enough to result in amendments to the Bill. (Paragraph 127)

51.  Space in the legislative timetable is at a premium. If MoD does want to make further changes to the redress of grievance procedures that require primary legislation but is unable to make the necessary amendments to this Bill, we urge the Government's business managers to allow time for the necessary legislation to be considered as soon as possible. (Paragraph 128)

52.  We welcome the establishment of an independent reviewer for the Armed Forces redress of complaint procedures. (Paragraph 129)

53.  We acknowledge the success of Daniel's Trust. Its success depends on the relationship between those receiving the complaint and individual Commanding Officers. It may not be possible to apply this model more widely, but, we urge MoD to be open to such ad hoc independent involvement. (Paragraph 133)

54.  Senior military commanders expressed strong opposition to the proposal for an Armed Forces Federation. There was some support in the Committee for the proposal but currently, there is no clear consensus as to whether or not any specific form of collective representation is either necessary or desirable. Some Members believed it was not an issue that can be left in abeyance permanently and believed MoD should undertake a review of the situation with a broad process of consultation covering all Services and ranks at the earliest possible opportunity. Others disagreed. (Paragraph 138)

55.  We are content with the proposals in the Bill to harmonise internal Armed Forces inquiries and to provide them with greater powers. (Paragraph 139)

56.  We note that inquests and civilian courts are able to conduct their affairs satisfactorily with next of kin present. We do not believe that next of kin should be excluded on the basis that their presence will inhibit witnesses from providing the fullest evidence. (Paragraph 141)

57.  Given the specific and urgent nature of some Service inquiries, it is difficult for there always to be a presumption that next of kin will be entitled to attend. Nevertheless, for inquiries into, for example, an unexplained death in a training establishment, where the difficulties of location and timing do not exist, we would wish the inquiry to look sympathetically on the wishes of next of kin to attend. (Paragraph 146)

58.  We recommend that guidance for Service inquiries advises that next of kin not be excluded as a matter of routine. We are not persuaded by the argument that the presence of next of kin would impede the inquiry's ability to conduct its affairs, so long as those attending are fully aware of the purpose, limitations and powers of the inquiry. (Paragraph 147)

59.  We are grateful to those who alerted the Committee to substantive omissions in the Bill, and to the Government for its willingness to propose appropriate amendments. (Paragraph 149)

60.  The Government proposed an amendment reinstating the annual renewal provisions, and we have made this change to the Bill. (Paragraph 152)

61.  We are particularly concerned that, as the legislation will make considerable changes to the military justice system, Parliament should have an opportunity to watch closely how those changes work in practice. We welcome the Government's willingness to listen to the arguments adduced in the Committee and its readiness to provide the necessary amendment to reinstate annual renewal of Service discipline legislation. (Paragraph 153)

62.  We urge the Government's business managers to ensure that MoD has an opportunity in the legislative timetable to bring forward any changes required to military discipline legislation in a timely manner. (Paragraph 154)

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