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Session 2008 - 09
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Public Bill Committee Debates

The Committee consisted of the following Members:

Chairman: Mr. Eric Martlew
Baron, Mr. John (Billericay) (Con)
Brown, Mr. Russell (Dumfries and Galloway) (Lab)
Buck, Ms Karen (Regent's Park and Kensington, North) (Lab)
Curry, Mr. David (Skipton and Ripon) (Con)
Evans, Mr. Nigel (Ribble Valley) (Con)
Harvey, Nick (North Devon) (LD)
Jones, Mr. Kevan (Parliamentary Under-Secretary of State for Defence)
Joyce, Mr. Eric (Falkirk) (Lab)
McGuire, Mrs. Anne (Stirling) (Lab)
Main, Anne (St. Albans) (Con)
Meacher, Mr. Michael (Oldham, West and Royton) (Lab)
Murrison, Dr. Andrew (Westbury) (Con)
Rennie, Willie (Dunfermline and West Fife) (LD)
Roy, Mr. Frank (Lord Commissioner of Her Majesty's Treasury)
Strang, Dr. Gavin (Edinburgh, East) (Lab)
Vis, Dr. Rudi (Finchley and Golders Green) (Lab)
Eliot Barrass, Edward Waller, Committee Clerks
† attended the Committee

Sixth Delegated Legislation Committee

Tuesday 14 July 2009

[Mr. Eric Martlew in the Chair]

Draft Armed Forces (Powers of Stop and Search, Search, Seizure and Retention) Order 2009
4.30 pm
The Parliamentary Under-Secretary of State for Defence (Mr. Kevan Jones): I beg to move,
That the Committee has considered the draft Armed Forces (Powers of Stop and Search, Search, Seizure and Retention) Order 2009.
The Chairman: With this it will be convenient to consider the draft Armed Forces Act 2006 (Consequential Amendments) Order 2009.
Mr. Jones: It is a pleasure to serve under your chairmanship, Mr. Martlew.
We are considering this afternoon a further two of the statutory instruments that we need to bring into force, under the affirmative procedure, to implement the Armed Forces Act 2006, something that has been following me around for the past five years, and which tomorrow will hopefully be drawn to a conclusion, to my delight and that of the team who have been assisting me on the Act during those five years.
The Armed Forces (Powers of Stop and Search, Search, Seizure and Retention) Order 2009 supplements the provisions of the 2006 Act, which lay down the broad powers of the service police to stop and search members of the armed forces, carry out searches following arrest and enter places to search and seize evidence. The order includes provisions broadly equivalent to those in civilian legislation. For example, it allows service police to enter certain premises to search for evidence when a person is arrested for a serious service offence. It also includes reserve powers under which a commanding officer can act in an emergency, when service police are not available, such as on operations.
As to the Armed Forces Act 2006 (Consequential Amendments) Order 2009, commencement of the 2006 Act will require some consequential amendments to a wide range of existing primary and secondary legislation, properly to reflect the changes that it introduces. Schedule 16 to the Act sets out the majority of the amendments that are needed to primary legislation. However, under section 379 the Secretary of State for Defence has the power to amend any items of legislation that are not covered by the schedule, and that is the purpose of the order.
The Departments that own the legislation in question have been consulted about the amendments to be made today. Although the order amends some primary legislation, the amendments are mainly to secondary legislation.
As with all such instruments there has been consideration of issues arising under the European convention on human rights, and observations have been made on the orders to be considered today. The Government have given an undertaking that Ministers speaking to instruments subject to the affirmative procedure will tell the House whether they satisfy the legislation, and we believe that the orders are compatible with the convention rights.
On a previous occasion when we debated statutory instruments in this context, the hon. Member for Westbury raised an issue about the manual of service law, a copy of which I know he is eagerly awaiting. The new manual has been drafted largely by service personnel. I am told that it is written in plain English, which will be a first for the Ministry of Defence, and is based closely on the 2006 Act and secondary legislation made under it. The manual will provide guidance to commanding officers and their staff, service police, lawyers and court administrators—all those who are responsible for administering the new service justice system.
A training version of the new manual was issued electronically to all services earlier in the month, to coincide with the start of the main training effort on the new system. In August the manual will be available to all service personnel on the defence intranet. By early October a CD version will be available. I will ensure that a copy of the manual is placed in the Library for Members who wish to study it. I am sure that the hon. Member for Westbury will be the first to take it out for bedtime reading.
I should also like to say a few words about training. Once again, these issues were raised at our last sitting by the hon. Gentleman. A full programme of training has now been put in place and will cover the issues that are raised in the manual and by the amendments that we are considering today and later in the week.
4.35 pm
Dr. Andrew Murrison (Westbury) (Con): It is a great pleasure to serve under your chairmanship, Mr. Martlew. The Minister has defenestrated much—but not all—of my rant about the manual of service law. I hope that he will bear with me while I raise one or two issues that arise. I am pleased to hear that that wonderful tome will be published once we have completed these proceedings. However, I am a little concerned that practitioners will not have sufficient time to study the measure adequately and avail themselves of the training that the Minister mentioned.
We were promised roadshows and briefings. Although it is reassuring to hear that the manual will be available next month, the armed forces are about to embark on summer leave which will take out a large chunk of time, so by the time they come back they will have just a few days to attend their roadshows and briefings and be adequately informed about what is quite a complicated set of instruments. I certainly found them so, as I ploughed through them. The Minister is quite right to say that I will borrow and look at a copy of the manual of service law when it appears in the Library. These are not things simply to dip into; they are complex matters. It is a bit of a tall order asking service policemen and commanding officers to apprise themselves of all these matters in the time available. Why has programming been such that they have had so little time to get adequately briefed on all this?
That said, it would be churlish of me not to reiterate the fact that the Opposition are broadly content with all these measures. They will harmonise practice between the three services and also with the Police and Criminal Evidence Act 1984. That has to be a good thing. Broadly speaking, their intention is to extend checks and balances in favour of servicemen and women, which is also a good thing.
One of the concerns we have raised in the past is the removal of the centrality of the position of commanding officers in service discipline as a result of these various measures. One small point that I should like to raise with the Minister concerns the power to seize property for later sifting. From my reading of the measure, that is not extended to persons undertaking a search on the authority of commanding officers, which is a little odd given that persons finding themselves as defendants in such a situation have access to the judge advocate as a safeguard under these measures.
Will the Minister confirm that that power is being removed from commanding officers? Although I make no objection I can see circumstances in which the management of relevant offences might be impeded by such a limitation. I am thinking particularly about units that are relatively remote, such as ships at sea, where it might be necessary in the absence of a service policeman for commanding officers to have a power which this measure appears to remove.
The explanatory notes assert:
“The Order makes provision, much of which is equivalent to that contained in specified sections of the Police and Criminal Evidence Act 1984”.
In other words, there is an equivalence between the provisions in PACE and those in the orders under consideration. The Minister confirmed that when he said that they were broadly equivalent, but I do not know what that means. What I am struggling to get clear in my mind is where the measures are not equivalent—where the differences are. I am talking about the differences between civilian practice and what will become military practice. It will be helpful if the Minister outlines where the major points of difference are.
The Chairman: I am very conscious that the Minister has introduced the subject of the manual, but I remind the Committee that it is not before us today.
4.40 pm
Willie Rennie (Dunfermline and West Fife) (LD): It is a pleasure to serve under your chairmanship, Mr. Martlew. Like the hon. Member for Westbury, I should like to question the Minister on his terminology. He said that the powers are broadly in line with those in civilian legislation. I, too, should like to know what the differences are and why it is necessary for them to be different from civilian arrangements.
Under what circumstances will the commanding officer assume the responsibilities of the service police? Are there any restrictions? For example, I can understand that the police are not necessarily available on the front line. However, if the service police were to suffer from any funding restraints in the future and there was to be a reduction in the scope of their work, how would that affect the responsibilities of the commanding officer? We would not like to see his powers extended much beyond what is envisaged now. Therefore, I should like the Minister to clarify those powers and how far they can be extended.
My next point is about the consultation. The explanatory memorandum says that there has been
“rigorous consultation with relevant stakeholders”.
It then lists all the stakeholders, but there is no detail on what that rigorous consultation entails. Perhaps the Minister will outline that. In future, when we receive explanatory notes, could we also be given some detail on that consultation to guide us in the consideration of such orders?
Those are my brief questions. In principle, I have no objections to the orders. It makes eminent sense to bring service arrangements in line with civilian arrangements and to implement the other proposals that the Minister has put before us today.
4.43 pm
Mr. Jones: Let me turn first to training. I do not want the Committee to have the impression that training has not started already; it has and it will run from July until October this year. Some initial training has already taken place. The reason that the manual and the training have not been laid out in detail is that we have to finish the statutory instruments this week. All three services have already undertaken some training.
As I said in my opening remarks, I have lived with the 2006 Act for nearly five years. It was a unique way of forming legislation. A whole range of evidence was taken from individuals in the service. Moreover, the Committee visited Army establishments, and RAF and naval bases in this country and abroad to take evidence from the users. We also took evidence from a wider audience. So, this legislation has been scrutinised more than most. It is a model way of bringing in complex and contentious legislation.
We had long discussions in Committee about the commanding officer’s role. The hon. Member for Westbury asks again whether we are taking powers away, but as I said last time we met, I believe that we are strengthening and protecting the role of the commanding officer by ensuring that evidence is gathered at the beginning of the process. That will help with later prosecutions. In some cases that have recently featured in the media, the fact that evidence was not gathered at an early stage made prosecution difficult; it may also have led to reputational damage to some of the units involved.
These proposals are not a threat to the commanding officer. However, there may be special circumstances in which there is no access to service police—in theatre, for instance, or, as the hon. Member for Westbury said, on a ship. That is why the commanding officer has the power to search and gather evidence. Given the highly specialist nature of some searches, that role is best performed by the service police, but we need latitude to allow for the commanding officer’s role.
The PACE regulations mirror the civilian provisions.
Dr. Murrison: Before the Minister moves on, may I say that my specific concern was the removal from commanding officers of the power to seize property for later sifting? In others words, service policemen will be able to seize property for later sifting, but commanding officers acting on their own authority will not. I wonder why that is so, and whether the Minister can cite cases of such evidence being somehow damaged or degraded because a service policeman had not been involved. As I said, it is easy to foresee circumstances, and to describe them, in which it would be extremely helpful for commanding officers to be able to seize and secure property for later sifting. Under the order, they will be unable to do so.
Mr. Jones: I shall first finish the point about the PACE regulations. They mirror the civilian equivalents. The main difference is that the commanding officer will be able to use the search powers in those exceptional circumstances, which is obviously not the case with the civilian measures.
Sifting evidence later is a specialist job, and on most occasions one would expect the service police to do it. I cannot think of circumstances in which the role of the commanding officer would be hampered. We cannot have it both ways. We cannot argue that commanding officers’ powers are being denuded when we are giving them the power to do something practical if the service police cannot carry out a search. I do not see that as a problem.
As has been the case with all our actions under the 2006 Act, the order provides practical solutions to protect the commanding officer. It also ensures something that we all want when such incidents take place—not only that the individual is protected but that commanding officers and others have the powers necessary to ensure that, ultimately, if cases go to trial, a fair trial, with all the evidence available, is possible.
Question put and agreed to.
That the Committee has considered the draft Armed Forces (Powers of Stop and Search, Search, Seizure and Retention) Order 2009.


That the Committee has considered the draft Armed Forces Act 2006 (Consequential Amendments) Order 2009.—(Mr. Kevan Jones.)
4.49 pm
Committee rose.

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