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Public Bill Committee Debates

Draft Armed Forces (Service Complaints) (Consequential Amendments) Order 2008

The Committee consisted of the following Members:

Chairman: Mr. Joe Benton
Ancram, Mr. Michael (Devizes) (Con)
Blackman-Woods, Dr. Roberta (City of Durham) (Lab)
Burns, Mr. Simon (West Chelmsford) (Con)
Dorries, Mrs. Nadine (Mid-Bedfordshire) (Con)
Harvey, Nick (North Devon) (LD)
Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab)
Howarth, Mr. George (Knowsley, North and Sefton, East) (Lab)
Keeble, Ms Sally (Northampton, North) (Lab)
Mates, Mr. Michael (East Hampshire) (Con)
Meacher, Mr. Michael (Oldham, West and Royton) (Lab)
Murrison, Dr. Andrew (Westbury) (Con)
Roy, Mr. Frank (Lord Commissioner of Her Majesty's Treasury)
Russell, Bob (Colchester) (LD)
Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
Trickett, Jon (Hemsworth) (Lab)
Twigg, Derek (Parliamentary Under-Secretary of State for Defence)
Glenn McKee, Committee Clerk
† attended the Committee

Fourth Delegated Legislation Committee

Monday 23 June 2008

[Mr. Joe Benton in the Chair]

Draft Armed Forces (Service Complaints) (Consequential Amendments) Order 2008

4.30 pm
The Parliamentary Under-Secretary of State for Defence (Derek Twigg): I beg to move,
That the Committee has considered the draft Armed Forces (Service Complaints) (Consequential Amendments) Order 2008.
The Chairman: With this it will be convenient to consider the draft Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2008 and the draft Armed Forces (Alignment of Service Discipline Acts) Order 2008.
Derek Twigg: It is a pleasure to serve under your chairmanship, Mr. Benton. I do not believe that the orders are contentious, but we may find that that is not the case during the debate. I will try to be as brief and to the point as possible.
I will say a few words in support of each of the three orders, beginning with the draft Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2008. The Armed Forces Act 2006 provides for the three service discipline Acts—more correctly known as the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957—and the 2006 Act itself to continue in force for a maximum of five years, subject to an annual Order in Council. The continuation order is such an order. It will ensure that the 2006 Act and the three service discipline Acts will remain in force for a further 12 months.
When the 2006 Act was agreed by Parliament, there was an expectation that it would replace the three service discipline Acts. I confirm that it remains our intention to repeal the service discipline Acts, but they must remain in force until the 2006 Act is fully in operation. That is why they are included in the order.
Bob Russell (Colchester) (LD): The explanatory notes state:
“The Ministry of Defence aims to complete full implementation of the 2006 Act by 1 January 2009. Once this has been done, the provisions of the Service Discipline Acts will be repealed.”
Is the Minister saying that that date will not be reached because the order will enforce the service discipline Acts for a further 12 months? That is an area of confusion for me so I would be grateful for clarification.
Derek Twigg: I will hopefully give the hon. Gentleman clarification during my speech.
The draft Armed Forces (Alignment of Service Discipline Acts) Order 2008 will amend various sections of the service discipline Acts to align them more closely with the 2006 Act. It is likely to ease the transition to the new system if made before the main changes. It will also introduce some safeguards that are in the 2006 Act. That will ensure a greater coherence between the current legislation and the 2006 Act, which is not fully in force. This order will ensure that some of the areas of incompatibility between the two systems are removed. It will introduce a number of safeguards to the current system.
One measure aligns the service discipline Acts with provisions in the 2006 Act in relation to powers of arrest. It will allow service policemen to arrest service personnel of all ranks without seeking prior approval and to arrest a person whom they reasonably suspect of being about to commit a service offence. At present, the service police need prior approval to arrest somebody above the rank of warrant officer. They can make an arrest only while an offence is being committed or afterwards. These are important changes for the service police because they provide them with greater powers. The new powers are broadly similar to those enjoyed by the civil police.
The alignment order also removes the ability of a judicial officer to authorise post-charge custody where the accused has previously deserted or gone absent without leave after being charged with an offence and released from custody. Authorising custody cannot be justified merely because the accused has previously absconded. The provision is therefore not relied on by judicial officers. The order clarifies the legal position. Under the service discipline Acts, the prosecuting authorities can require an accused person’s commanding officer to consider a charge other than the charge on which the accused originally elected to be tried by court martial. That could create a disincentive to the accused electing trial by court martial and, therefore, could be subject to challenge. Under the Acts, as amended, the prosecuting authorities could substitute another charge, if it is one that the commanding officer could have heard. However, the prosecuting authorities will not be able to substitute any other charge, unless the accused agrees.
The order also removes the ability of the reviewing authorities, who will usually be officers at two-star level or higher, exercising personal or delegated command to activate suspended sentences. They will align the service discipline Acts more closely with the provisions of the Armed Forces Act 2006, ensuring that only a court can activate a suspended sentence. The one exception to that rule is in relation to the Royal Navy where, until the 2006 Act comes into force, Royal Navy commanding officers could still activate a suspended sentence of detention passed by a court martial. The order also provides for appeals against the activation of suspended sentences.
Mr. George Howarth (Knowsley, North and Sefton, East) (Lab): I know that the Minister is aware—he mentioned it to me earlier—that, along with the hon. Member for Colchester and my hon. Friend the Member for Paisley and Renfrewshire, North, I chaired the Committee stage of the 2006 Act, under somewhat unusual procedure. We heard in evidence how commanding officers frequently use unevenly the powers that the Minister is describing. For example, a commissioned officer might be given one sentence for the same offence for which somebody of a lower rank would a receive a much more severe penalty. Will he assure us that that will not apply in such cases?
Derek Twigg: My right hon. Friend is still spoken of with great affection and respect in the Department for his outstanding chairmanship of the Committee. I know that he greatly enjoyed his time as Chairman, which posed some great challenges and difficulties—it was such an important Bill. Of course, the point is to ensure a fair system and to put in place the sort of safeguards that I have been speaking about, and to which I am sure I shall refer later.
I turn now to the Armed Forces (Service Complaints) (Consequential Amendments) Order 2008. Section 334 of the 2006 Act, and regulations made under it, allow members of the armed forces to make complaints about matters relating to their service. The Working Time Regulations 1998, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003 provide that a complaint cannot be presented by a member of the armed forces to an employment tribunal established under any of those regulations unless a complaint under service complaint procedures has been made about the same matter and not withdrawn. Quite simply, the order amends each of those regulations so that they correctly refer to the service complaints system as amended by the 2006 Act.
The Government have given an undertaking that Ministers moving instruments subject to the affirmative 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 first order is a brief document that raises convention issues only in that it maintains in force three Acts that, as they have been amended over the years, reflect convention rights. As for the 2006 Act, we consider that its provisions are compatible with convention rights. The second order will help to preserve convention rights and the third order has no bearing on them. I hope, therefore, that hon. Members have found it helpful to have an update on the progress towards full implementation of the legislation, and I look forward to further discussions as we bring forward other items of secondary legislations in the autumn.
4.39 pm
Dr. Andrew Murrison (Westbury) (Con): It is a great pleasure to serve under your chairmanship, Mr. Benton. I declare an interest, as registered in the Register of Members’ Interests, in that I am a medical officer in the Royal Naval Reserve.
I welcome the general provisions in the Armed Forces Act that will align more closely the practices of the three armed services. It has always bewildered me that procedures are so different in the three forces. As our armed forces act together more closely, often under the command of people who are not from the same service as the defendants, it makes little sense to have different procedures. It is in the long-term interest of our armed forces to align them as closely as possible. That is what the Act does, and that is a good thing.
There will of course be resource implications, particularly for the Royal Navy which will bear the brunt of the changes because it is more out of alignment with the other two services. I should say as an aside that I look forward to the changes. I remember a master-at-arms telling me in 1987 that there was no such thing as naval law, only naval justice. That was prophetic, because in January 2009 that is precisely what we will have. We will no longer have naval law as such; it will be merged with that of the other two services. The brunt of that measure will be borne by the senior service, and we therefore need to think carefully about the resource implications.
The director of service prosecutions has been appointed in advance of 1 January 2009. We understand that the appointee has no particular regular or reserve experience, and that is cause for regret. I seek the Minister’s reassurance that the appointee will be properly equipped to do what will be a complex task.
There are big differences in discipline and law enforcement across the services. There is wide disparity, for example, in the time it takes for a case to arrive at court martial. Last year that took on average 267 days in the Royal Air Force and 74 in the Royal Navy. I would like to think that that means that the Royal Navy is more efficient, but that would probably be unfair to the Royal Air Force. However, there must be a reason for that huge fourfold difference. It would be interesting to hear what the Minister thinks that reason is, and more importantly how he thinks the measures might help to erase that difference. Is it a resources issue, for example? Crucially, I would like to hear how the measures will ensure that people in the Navy, the RAF and the Army can expect their courts martial to be brought forward in a timely fashion.
The Minister has touched on complaints. My main question is whether it will be necessary to exhaust the service complaints procedure before it is possible to apply to an employment tribunal. I will use the analogy, probably a little unfairly, of the ombudsman service. The ombudsman will not look at a case before it has been through the in-house complaints procedure. Will that be the case, or can a complaint to an employment tribunal at least be initiated before the service complaint procedure has been concluded?
Finally, I will touch briefly on the alignment order. The Minster mentioned service police and the increased powers that these measures will give them. Service policemen are very fine people and some of them are my constituents, but if we are in the business of granting more powers, particularly to policemen, we need to ask why those powers are needed. Can the Minister give me details of instances when the current provisions have been inadequate for the task, as that is an important point of principle? The Minister dealt with post-charge custody clarification and the fact that, under this measure, only courts will be able to activate a suspended sentence. We have noted that and have no particular concerns about it, but in connection with the alignment order, I will press the Minister on the increased powers that he is giving to service police.
4.47 pm
Bob Russell: I would like the Minister, when summing up, to explain why it has taken so long to implement the 2006 Act in full and whether that is in accordance with what Parliament was led to believe when the Act was passed. As a member of the Committee that scrutinised the Bill, I had not realised that it would take that length of time to be fully implemented. I am bound to observe, however, that no constituent of mine, whether a serving or retired member of Her Majesty’s armed forces, has ever raised the Act with me, so it is hardly a topic of discussion. Will the Minister advise the Committee on how the changes will be brought to the attention of the rank-and-file men and women who serve Queen and country?
I recollect that there was all-party support for the Armed Forces Act 2006, because it brought disciplinary features together in a single, unified Act, while retaining, where possible, the ethos and differences of the different services. I certainly recall that some of the people whom we met on our visits, including one to Iraq, spoke warmly of Army General and Administrative Instruction 68, because it was an immediate form of discipline that was done and dusted so that everyone could move on. Will the Minister tell the Committee how that has played out over the past two or three years, if indeed that type of discipline has been introduced across the other services?
Finally, will the Minister clarify whether the rapidly declining number of Ministry of Defence police are caught up in any way with the 2006 Act, and whether the references to police are exclusively to the Royal Military Police? My experience is that the MOD plod—the MOD police—are being cut dramatically across the country. Do they have any part in this legislation? If so, how will their reduced numbers affect its implementation?
Lastly, will there be a pocket version of this legislation for rank-and-file members of the armed forces so that they will understand the provisions? This is a very complicated document, and I do not think that it is bedside reading in Helmand province at the moment.
4.50 pm
Derek Twigg: I was going to comment on the time that it is taking to get the legislation through and on the delays in my opening speech, but for the sake of brevity, I decided that I would not do so. However, I accept that that was a mistake.
It is important to point out that we now expect to produce about 80 statutory instruments directly and indirectly as a result of the 2006 Act, which is more than the 65 that we expected last year. Consequential changes were made through separate statutory instruments rather than through the large single order that we had originally envisaged. The figure also allows for the commencement orders, which are not subject to parliamentary procedure. So far, we have laid about a dozen of the statutory instruments that we expected to produce, and many more of them are ready apart from the need to add the transitional positions. The transitional provisions ensure that there is a working bridge between the old legal system and the new one.
The overall transitional regime will be complex, because of the extent of the changes made by the 2006 Act, and the transitional provisions specific to the particular statutory instruments will be laid to a main transitional order. We propose to put down the main transitional order during the summer, and it will be subject to the negative resolution procedure. Once it has been laid, the way will be clear for us to lay the other statutory instruments that include a transitional element. Since it is not possible to introduce parts of the new service listed in the 2006 Act in advance of the other parts, we intend all statutory instruments to take effect together, and our target date remains January 2009.
The majority of the statutory instruments are subject to the negative resolution procedure. We propose to lay some during the summer months—they will still come into effect in January 2009—rather than laying them in much greater numbers in the autumn. We recognise that it would not help the House if they were all laid at the same time, so officials will assemble the statutory instruments in groups and lay them in batches. We have done that work in discussion with officials of the relevant parliamentary Committees.
On the important issue of training, let me share with the Committee that to start with training will take four to six weeks. It will continue with the completion of manual service law, which will ensure that there is broad knowledge and information about the 2006 Act and the changes that it introduces, particularly for those taking part in the military justice system. There will be road shows as well to make people more aware of the 2006 Act and its various changes.
Dr. Murrison: I am interested to know who will get the training—four to six weeks is a long period of time—whether any has already been carried out and whether it will also include reserve forces that may be required to act under this legislation? We are talking about a fairly tight time frame if that is the case.
Derek Twigg: It is a tight time frame. Those who need the training will get it, and we have a programme of training that is ready to go out.
There are a number of technical issues, and I am happy to write to hon. Gentlemen about any outstanding issues that I do not cover today. The manual is an important part of training. I am not aware that we intend to produce a pocket version at this stage, and I am not sure how useful that would be, but I take the point made by the hon. Member for Colchester that we need to get the information out.
I also want to discuss a complaint going to an employment tribunal before the internal system of complaint is exhausted. A service person may apply to an employment tribunal on matters such as discrimination before the process is completed. The tribunal itself may look at the evidence afresh, so a person can, in certain circumstances, take the matter forward to an employment tribunal.
The other point concerned the difference in the time taken by the RAF and the Royal Navy to conduct a court martial. I cannot answer the question today, but I am happy to write to the hon. Member for Westbury to set out the views of the Department.
Dr. Murrison: Winding back to the point about taking into account the proceedings of a service investigation in a subsequent employment tribunal, I was not entirely clear from what the Minister said whether those proceedings could be taken into account in such a tribunal, or whether the tribunal would be required to act de novo—afresh, as it were.
Derek Twigg: The proceedings can be taken into account.
Derek Twigg: There are several reasons why the numbers might be different, but I will not speculate on that. As I have said, I shall write to the hon. Member for Westbury. In conclusion, I am happy to write to members of the Committee on outstanding issues that I have not been able to deal with today.
Question put and agreed.
That the Committee has considered the draft Armed Forces (Service Complaints) (Consequential Amendments) Order 2008.

Draft Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2008

That the Committee has considered the draft Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2008.

Draft Armed Forces (Alignment of Service Discipline Acts) Order 2008

That the Committee has considered the draft Armed Forces (Alignment of Service Discipline Acts) Order 2008.
Committee rose at three minutes to Five o’clock.

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