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Session 2005 - 06
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Standing Committee Debates

Sixth Standing Committee on Delegated Legislation

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Sixth Standing Committee on Delegated Legislation

The Committee consisted of the following Members:


Mr. Joe Benton

†Campbell, Mr. Alan (Tynemouth) (Lab)
Cook, Mr. Robin (Livingston) (Lab)
†Cousins, Jim (Newcastle upon Tyne, Central) (Lab)
†David, Mr. Wayne (Caerphilly) (Lab)
†Goodman, Helen (Bishop Auckland) (Lab)
†Johnson, Ms Diana R. (Kingston upon Hull, North) (Lab)
Key, Robert (Salisbury) (Con)
Kumar, Dr. Ashok (Middlesbrough, South and East Cleveland) (Lab)
Milton, Anne (Guildford) (Con)
Moore, Mr. Michael (Berwickshire, Roxburgh and Selkirk) (LD)
†Naysmith, Dr. Doug (Bristol, North-West)
†Robathan, Mr. Andrew (Blaby) (Con)
†Russell, Bob (Colchester) (LD)
†Scott, Mr. Lee (Ilford, North) (Con)
†Touhig, Mr. Don (The Parliamentary Under-Secretary of State for Defence) (Lab/Co-op)
†Viggers, Peter (Gosport) (Con)
Jenny McCullough, Committee Clerk
† attended the Committee

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Thursday 7 July 2005

[Mr. Joe Benton in the Chair]

Draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2005

8.55 am

The Parliamentary Under-Secretary of State for Defence (Mr. Don Touhig): I beg to move,

    That the Committee has considered the draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2005.

May I say how delighted I am that you are chairing our proceedings this morning, Mr. Benton? You are respected on both sides of the House, and I am sure that you will guide us through our deliberations with skill and humour.

The order was laid before the House on 4 April. As the Committee will know, Parliament is asked to consider such an order in most years as part of the process that keeps the service discipline Acts in force. The main element of the process is the five-yearly Armed Forces Act. The most recent of these—the Armed Forces Act 2001—extended the provisions of the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 by a further five years, but that extension was subject to both Houses approving an order such as this in the intervening years. The service discipline Acts do exactly what it says on the tin: they provide the statutory basis for discipline in our armed forces. The order is critical to ensuring that those Acts remain in force. Without it, the legislation would expire on 31 August 2005. The approval of Parliament, expressed partly through our consideration of the order today, is therefore vital in ensuring that the provisions of the service discipline Acts continue in force for a further 12 months.

Before I move on, I want to make one more observation about the order. The Government have given an undertaking that Ministers moving instruments subject to the affirmative resolution procedure will tell the House whether they are satisfied that the legislation is compatible with the rights provided in the European convention on human rights. The order raises convention issues only in that it maintains in force three Acts that have been amended over the years to reflect rights under the convention. As I am sure hon. Members know, this is the last continuation order that we shall debate before the armed forces Bill is introduced towards the end of the year.

If I might stray a little from the issue before the Committee, I should like to say a few words about our plans to replace the service discipline Acts with a single armed forces Bill, which will replace the three separate systems of Navy, Army and Air Force law that exist at present. I want to emphasise that we believe strongly in the need for a separate system of service law that is
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fair, consistent and expeditious, and the new Bill, which will be published in the autumn, will give our armed forces better support in the joint environment in which they train and operate. The single system of service law will be underpinned by unified institutions that will deal with the administration of courts martial and prosecution.

Two words are key to what we are trying to do: “modernise” and “harmonise”. I know that there has been pressure from both sides of the House and the other place to introduce such legislation. Those two words describe the approach that we have taken in our work towards publishing the armed forces Bill. The new system will be informed by our experience and by the changing nature of operations. Details of the main changes that we are proposing to the discipline system were set out in our memorandums to the Select Committee on Defence. We were fortunate enough to engage that Committee at the initial inquiry into our approach to the Bill’s main proposals, and the Committee published its report on 14 March. The Government found the report illuminating, and we intend to publish our response to it next Tuesday. It will help if the new Select Committee on Defence takes a close interest in the legislation.

Jim Cousins (Newcastle upon Tyne, Central) (Lab): Will the Minister explain something? In January, for the first time, a distinction was introduced in Army discipline between minor and major offences, but the same distinction was not introduced in the Navy and Air Force. In approving the order today, will we be approving the continuation of that distinction and will the forthcoming legislation extend that distinction to all three armed services? What is to be the future of that difference?

Mr. Touhig: I am sure that my hon. Friend will allow me to return to that point a little later.

I cannot mention the work of the Select Committee on Defence without paying tribute to the Members who served on it, and particularly to the outgoing Chairman, my right hon. Friend the Member for Walsall, South (Mr.George), for his work on behalf of defence. The Select Committee’s reports under his chairmanship have not always made comfortable reading for the Government, but I happen to believe passionately that that is what Parliament does; it scrutinises the Executive, which is right. I want to state publicly that the recommendations made by that Select Committee have been extremely helpful to us.

Our armed forces are rightly held in high esteem around the world. I know that their qualities are fully valued by Members on both sides of the House, and I pay tribute to the resolve, discipline and fortitude of the men and women who serve in our armed forces. As I said, the armed forces Bill, which we will publish in the autumn, is all about them, as is the order. Both the order and the Bill will ensure that we have a fair and practical system of justice that our service people deserve.

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9.1 am

Mr. Andrew Robathan (Blaby) (Con): I, too, am delighted to serve under your chairmanship, Mr. Benton. I do not expect that we will discuss the order to the very end of the minutes that are allotted to us, because the order is not particularly controversial and the Opposition have no objection to it in principle.

We are, however, very concerned about what is coming round the corner, including the tri-service Act, to which the Minister alluded. It is not that we are against sensible rationalisation. The Army Act 1955 and others deserve to move forward, as the world has, but that does not mean that we support everything that the Government intend to do, and we want to lay down a few markers.

I do not expect Members on the Government Benches—or Members on the Opposition Benches, for that matter—to know much about Julius Caesar, but they might know that he once wrote, “A soldier is not as other men, and when he thinks he is, he ceases to be their guardian.” What concerns me about the tri-service Act, which the Minister mentioned so fully, is that in trying to make soldiers, sailors and airmen like other men, and women, we might end up undermining the very ethos with which they serve. I shall return to that later.

I have served on courts martial both as a defending officer and as a prosecuting officer—or should I say, on the board—and hon. Members might be surprised to know that it was not summary justice at all, but a very fair system. The board on which I served acquitted the man who had been called before it, despite the fact that the professional judge advocate was determined to hang him—metaphorically, not literally.

I have also served in summary adjudication as a company commander, and once fined someone up to, I believe, a week’s pay. I cannot remember exactly how much it was, but I fined him because I was a bit of a hanging judge, too, if I can put it that way. I have also attended naval captain’s orders.

So I have seen the system in practice. Of course it is imperfect, but military discipline procedures are required to fit into any situation in which the military—Army, Air Force or Navy—find themselves. That is why I am concerned that it seems to be a given with this Government, and to a certain extent with the Select Committee, that harmonisation is essential. Being on a ship in the high seas, as I was just off South Georgia, is very different from sitting in a barracks in, say, Catterick.

Our question on everything to do with Army, Navy and Air Force discipline is therefore: will it improve the situation or make it worse? We have grounds to be concerned, as everyone on the Committee and in the House should be. Since the passage of the Human Rights Act 1998 and the implementation of the European convention on human rights into British law, a situation has arisen in which a commanding officer of the Queen’s Lancashire Regiment, Colonel Mendonca, is being investigated, apparently on the say-so of the Attorney-General, about his
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responsibility for the alleged war crimes of a soldier under his command. That goes to the very heart of the disciplinary system.

The Minister responded to a recent Adjournment debate secured by my hon. Friend the Member for Canterbury (Mr. Brazier), and he will recall that it was a Labour Member who asked where responsibility ended if it went to the top of the chain of command. Did it end with the commanding officer, with the Chief of the General Staff, with the Chief of the Defence Staff, or, indeed, with the Prime Minister?

That is something that we need to consider closely. At the same time, Trooper Williams, who has now been acquitted, was likely to be charged with murder for actions that he took in Iraq. None of us—certainly none who have served in the armed forces—have any truck with those who break the law. However, the situations facing a police officer in a demonstration in Trafalgar square and facing a soldier on the streets of Baghdad or Basra when confronted with armed people shooting at him are different. We must recognise that. What concerns me about the direction in which the Government are going is that they are civilianising military discipline. We must take account of the role of the commanding officer, who is, as it says in the Select Committee report on military discipline, pivotal.

I have more detailed points to make. A point about the tri-service Bill that we will come to is that it will mean more courts martial for the Royal Navy. If one is sitting in Portsmouth, that is fine. However, courts martial are enormously time-consuming. The hon. Member for Newcastle upon Tyne, Central (Jim Cousins) referred to minor and major disciplinary acts. That is a sensible way forward. Why should we bother with a court martial or summary justice for minor acts such as dirty boots or putting on a poor show on parade? Such proceedings are a waste of time in those cases. We do not want to increase the number of courts martial. It is much better to reduce the number. For the Army and the RAF, the tri-service Act may increase summary discipline.

The Select Committee report raises the concern that the Ministry of Defence will have to ensure that Army and Royal Air Force commanders are properly trained and supported. That is right. If we are to change the system, it will become more bureaucratic and people will need yet more training. There has to date been insufficient attention to those details from the Government. I hope that the Minister is able to illuminate us.

The Minister referred to what is, according to both the Select Committee and the MOD, one of the reasons for harmonisation. It is the need for harmonisation under joint operations, in which somebody who is charged may, at the moment, have to be sent back to his or her home unit because the offence falls under a different service discipline Act and the person has to be tried under that Act. I can understand that that can be a problem, but I wonder whether it is going too far to throw the baby out with the bathwater by saying that everybody must be under the same
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disciplinary Act, when matters may be different in different circumstances. We need to consider the negative impact that such a move may have.

As I said, the burden imposed on the Royal Navy will be large.

The point that really concerns me is at the end of the explanatory memorandum to the order. Paragraph 7.4 says:

    “It is the intention to introduce an Armed Forces Bill to Parliament . . . This will . . . include the following key elements:

    the establishment of a single system of Service law”.

As I said, the need for that must be proven. The other elements are:

    “a modernised list of Service offences”


    “a modernised grievance procedure for members of the armed forces”.

Those of us who are not 100 per cent. signed up to new Labour’s programme of modernisation and have seen the appalling effects that it is having in other fields are less than sanguine about that. We must consider carefully what exactly the Government propose before we move down the route of modernising, whatever that may mean.

We need to consider service discipline—Army, Navy and Air Force—in greater detail. We need to consider in much more detail the tri-service armed forces Bill that is proposed and that we will be able to read soon. We need to consider who is responsible for enforcing discipline. Is the role of the commanding officer, which is, as is outlined in the report, so crucial, going to be undermined by the Attorney-General, the European convention on human rights and other matters?

We intend to put down a marker on that point. While we are not against the continuation order, we think that there is the worrying prospect of an ill-considered and inappropriate Bill on service discipline. It has been on the agenda for some time, yet we still do not have any details. We do not yet know, but the Bill may fundamentally misunderstand the differing nature, purpose and role of the three services. I fear that, as has been happening for the last several years, the Bill will further undermine the discipline of the armed forces and therefore undermine their ability to do their job.

9.9 am

Bob Russell (Colchester) (LD): I join the Minister and the hon. Member for Blaby (Mr. Robathan) in welcoming you to the Chair, Mr. Benton. As the Minister says, this is the last time that this continuation order will be debated—and I assume that it will be approved. He and the hon. Member for Blaby have rightly drawn attention to what will follow it. The marker has been put down.

I do not come from a military background, but I represent a garrison constituency. Those in the Army, Air Force and Royal Navy who commit serious misdemeanours end up at the military corrective training centre in Colchester. Therefore, I have more
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than a passing interest in the disciplinary process. Also, in the distant past I reported on courts martial; from my observation, I endorse the view that they are a fair way of dealing with the matters that reach them.

There are two aspects of this disciplinary procedure. There are those people who are being disciplined to be retained within Her Majesty’s armed forces, and there are those who have erred so much that they are to be shown the door. I hope that the Minister will confirm that the establishment in Colchester that I referred to treats both groups in the right and proper way—that there is corrective training for those who are to go back into the armed forces, and that there is training in a skill or craft for those that are to leave. The Minister might wish to draw that to the attention of the Home Secretary, so that those who operate civilian prisons can be made aware.

I welcome the modernisation and the harmonisation—although it has been right to flag it up that naval discipline at the other end of the world should, wherever possible, be dealt with where the incident occurs, instead of the case being brought back to the United Kingdom. However, I have something to say about the references to “redress of grievance” and to “a modernised grievance procedure”. It is crucial that the lines of command and respect and discipline are in place, but that respect and discipline has to be mutual. Can the Minister confirm that where an aggrieved person of lower rank feels that their grievance is not being properly addressed, another means will be open to them so that we can ensure that their concerns are considered? Historically, that has not happened. I hope that that will be dealt with in the new legislation.

Having said that, I have no objection to the order.

9.13 am

Peter Viggers (Gosport) (Con): I very much welcome the opportunity to participate in this debate. The explanatory memorandum points out that the laws of the Army, Navy and Air Force are renewed every five years. The Select Committee on the Armed Forces Bill deals with that disciplinary procedure. I chaired that Committee in 1986 and 1996, and for the last 10 years or so I have been Vice-Chairman of the Defence Committee.

My own service background is a little unusual. I represent a naval constituency; Gosport is the home of the Royal Navy, despite what Portsmouth says. I also served as a pilot in the Air Force and, later, in the Army, and I believe that I am the only Member of Parliament who has shot down a Royal Air Force aeroplane—fortunately, it was pilotless at the time. Therefore, I have seen the armed forces at close hand. I value the opportunity of visiting our armed forces with the Defence Committee, and I have seen the strains and stresses that they are under around the various parts of the world where they operate.

It is of course true that the disciplinary procedures and law for the Army, Navy and Air Force have developed separately. The Navy in particular has had its own law. It has needed to have procedures that enable the captain of a ship on long-term
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detachment—perhaps months away from home—to carry out disciplinary procedures on board. However, it is clearly necessary now to harmonise the law of the Army, Navy and Air Force.

If one visits a ship these days one often finds Army and Air Force personnel serving in that ship. In Bosnia and Herzegovina or Afghanistan, or wherever one goes, one finds personnel from each of the three armed forces serving together. In Defence Medical Services, for example, in the Royal Hospital Haslar in my constituency, the nurses and doctors come from each of the three services, and it is quite wrong that a doctor or nurse from the Army, the Navy or the Air Force should be treated differently from someone from the other services. Clearly, we need to harmonise.

However, I am particularly worried about the manner in which that harmonisation is now to take place. The Defence Committee in the last Parliament carried out a most interesting and worthwhile study of the duty of care of the armed forces—the duty of an employer who takes a young man or woman, quite often callow and badly educated. The Committee was shocked—I know that some Labour Members were angered—to hear that a third of the people recruited into the Army have a reading age of 11 years old or lower. Labour Members were angry with the general who gave us that information and said, “How dare you suggest that we are recruiting for the Army only from the lower echelons of society?”

The fact is that one in three young men have a reading age of 11 or lower, and that is an appalling situation. However, those people have to be turned, in something like eight months, into professional soldiers, or professional killers. They must be trained from a callow background, and brought up to a very high standard of military discipline. If one watches a patrol in Northern Ireland, or in Bosnia and Herzegovina, of four men under the command of a corporal, there will sometimes be a few seconds when the corporal in charge, or even the individual privates, have to decide whether to take military action or open fire, and how to defend themselves. They are split-second moments. A tremendous amount of strain and pressure is put on individuals at such times.

What worries me is that society has moved on to a softer, kinder place, and everyone knows their rights and has to be protected against the harsher aspects of life. However, the armed forces cannot move on to that extent. I worry that civilians, who will be drafting or commenting on the order, do not understand the strains and pressures that military life imposes. We must not sever the link in disciplinary terms between those who are serving in the armed forces and those who have themselves served in the armed forces and who understand the strains and pressures.

The guiding principle of the discipline of the armed forces, and the way that the military work, is that an officer does not give an order to a man unless he understands and has been through the experience that he has been through himself. That is why officers’ training is particularly rigorous.

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I worry that, by bringing in the procedures that are described in the explanatory memorandum as “a modernised grievance procedure”, we shall undermine discipline. There will continue to be moments when young service personnel have, as I said, a split second to make a decision. They might be at a checkpoint, and a car comes through but does not stop when it should, or does not slow down as it should, and the service person has a moment to decide what to do about that. He may decide that the necessary thing to do is to open fire, but that may be difficult to explain later to a court—particularly a court where there may be representatives of the people who were in the car, who may have been injured or killed. It is difficult for civilians to understand the strains and pressures of military life.

I am profoundly worried about the way in which the explanatory memorandum is phrased. Of course, we want the establishment of a single system of service law. The 1986 Select Committee report on the Armed Forces Bill and the 1996 report demanded the establishment of a single system of service law. We were concerned that it had not been put forward earlier. If we are to implement an organised system of service offences, who can argue against modernisation? However, a modernised grievance procedure would open the door to those who know their rights before they know their duties. I therefore share the concern of my hon. Friend the Member for Blaby, who is leading for the Opposition. I am concerned about the manner in which the explanatory memorandum describes the order and happily join him in expressing anxiety that we might be encouraging what everyone in the armed forces dislikes, which is barrack-room lawyers.

With that marker about my concern regarding the modernised grievance procedure, I support the general thrust of what the Government seek.

9.20 am

Jim Cousins: I, too, would like to acknowledge your duties here, Mr. Benton, and my good feelings about serving under you. I know that you will look after the interests of the elderly and, as someone over 60, I find that a great comfort, although I do not expect a discount.

During my intervention on the Minister I drew attention to the distinction between minor and major offences that the Army introduced on 1 January. I should like to press the Minister on that important point, which, as the Opposition spokesman recognised, might go some way to address the anxieties that Opposition Members have expressed. The explanatory memorandum does not refer to minor administrative action, which is one reason why I want to press the point. It might helpful to read the MOD memorandum to the Defence Committee which the Minister has referred to:

    “Minor Administrative Action is intended to provide commanders at all levels with a swiftly delivered and reviewed, legal, fair and formally regulated way of dealing with minor failings in standards or performance which are typically professional or employment shortcomings.”

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That is important and addresses some of the points that the Opposition have made. Examples of low-level offences that could attract such action are given in the same memorandum:

    “poor turnout; dirty rifles; minor insubordination or dissent; poor punctuality; inappropriate behaviour in a mess and absence from duty for up to 48 hours.”

In correspondence with the Minister I have drawn attention to what I consider to be one such breach that would deserve minor administration action. I have raised the example of a lieutenant-colonel who boarded a train leaving York on 6 May 2005 at 13.58 and immediately started to use her mobile phone. In the course of doing so she revealed her name, which is known to me because my constituent who overheard the conversation said that they had no alternative. She gave the time of her arrival at her destination, which was in Scotland, and her home address. Her duties included making arrangements for the internment of soldiers who had died on duty. She named two such soldiers, whose names are also known to me and my constituent.

One of those soldiers had died in an accident in Canada, but—this is what causes me greatest concern—the other was a resident of Newcastle, to where the train was travelling. He had been killed by a roadside bomb in southern Iraq. My constituent also commented on the tone and style of the references to those individuals and, although I have drawn the Minister’s attention to that, it is a subjective matter and I do not intend to pursue it now. The fact that names were given in that way at all—in a train that was heading to the city of residence of one of the soldiers who had tragically died in the service of his country—concerns me greatly.

That case seems to fit minor administrative action and indicate an offence that in civil employment would be regarded as an act of misconduct. The Minister has so far been unable to assure me that any minor administrative action has been taken in the case and a simple apology has been accepted.

My attention would not have been drawn to the case had I not had the privilege of serving on this Committee. I would not have had the opportunity to study the facts behind the order and to see the examples of low-level offences that might give rise to minor administrative action: poor turnout, dirty rifles and so on. The facts to which I have drawn attention are at least comparable to poor turnout, a dirty rifle or inappropriate behaviour in a mess. Of course, the person concerned is a lieutenant-colonel, whereas the examples given perhaps apply more to ranking soldiers than to lieutenant-colonels. That concerns me.

The creation of a category of offences of minor administrative action is a step forward, but only if those procedures are applied robustly, correctly and appropriately and extend to all ranks. I press the Minister on that point, and I would like some clarification on how the Army has used its powers of minor administrative action, which it has had since 1
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January 2005, and how many commissioned, non-commissioned and ordinary soldiers have been the subject of action under minor administrative offences.

9.26 am

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