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
administratorsall 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 muchbut not allof 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 equivalentwhere 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 officers
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
policein 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 officers
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 placenot
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.
Resolved,
That the
Committee has considered the draft Armed Forces (Powers of Stop and
Search, Search, Seizure and Retention) Order
2009.
Resolved,
That
the Committee has considered the draft Armed Forces
Act 2006 (Consequential Amendments) Order
2009.(Mr. Kevan
Jones.)
4.49
pm
Committee
rose.