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Session 2008 - 09
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Public Bill Committee Debates

The Committee consisted of the following Members:

Chairman: Mr. Peter Atkinson
Ainsworth, Mr. Peter (East Surrey) (Con)
Baron, Mr. John (Billericay) (Con)
Crausby, Mr. David (Bolton, North-East) (Lab)
Harvey, Nick (North Devon) (LD)
Jones, Mr. Kevan (Parliamentary Under-Secretary of State for Defence)
Joyce, Mr. Eric (Falkirk) (Lab)
Linton, Martin (Battersea) (Lab)
Meale, Mr. Alan (Mansfield) (Lab)
Murrison, Dr. Andrew (Westbury) (Con)
Rennie, Willie (Dunfermline and West Fife) (LD)
Roy, Mr. Frank (Lord Commissioner of Her Majesty's Treasury)
Sharma, Mr. Virendra (Ealing, Southall) (Lab)
Stuart, Ms Gisela (Birmingham, Edgbaston) (Lab)
Stuart, Mr. Graham (Beverley and Holderness) (Con)
Turner, Mr. Andrew (Isle of Wight) (Con)
Wright, Mr. Anthony (Great Yarmouth) (Lab)
Liam Laurence Smyth, Committee Clerk
† attended the Committee

Seventh Delegated Legislation Committee

Wednesday 15 July 2009

[Mr. Peter Atkinson in the Chair]

Draft Armed Forces (Civilian Courts Dealing with Service Offences) (Modification of the Criminal Justice Act 2003) Regulations 2009
2.30 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 (Civilian Courts Dealing with Service Offences) (Modification of the Criminal Justice Act 2003) Regulations 2009.
The Chairman: With this it will be convenient to consider the draft Court Martial (Prosecution Appeals) Order 2009 and the draft Armed Forces (Court Martial) Rules 2009.
Mr. Jones: May I say what a pleasure it is to serve under your chairmanship, Mr. Atkinson?
These are the final three statutory instruments that need to be debated before the Armed Forces Act 2006 can be brought into force. On the court martial rules, the 2006 Act establishes a standing court martial, replacing the current system of ad hoc courts martial that are convened for trying individual offences. The rules of procedure for the new standing court are set out in the Armed Forces (Court Martial) Rules 2009 and broadly follow the rules that apply in the civilian system. However, they also reflect the different make-up of the court martial, involving a civilian judge, known as a judge advocate, and lay members, who are usually officers or warrant officers.
The 2006 Act gives the court administration officer alone the discretion to select lay members. There is no power to fetter that discretion by setting down rules that seek to impose on him the membership of the boards in different types of cases. Most trials in the court martial involve a single defendant or co-defendant from the same service. In such circumstances, the court administration officer will select the lay members from the same service as the defendant or defendants. However, where a trial involves defendants from a different service, the court administration officer’s policy is to select lay members from each service from which there is also a defendant. We had a long discussion on that area in relation to the Bill. The rules have been the subject of extensive consultation with the services themselves, the Director of Service Prosecutions and the Judge Advocate General, who has confirmed in a letter to the Minister for the Armed Forces that he is satisfied with them.
The Armed Forces (Civilian Courts Dealing with Service Offences) (Modification of the Criminal Justice Act 2003) Regulations 2009 are being made under section 271 of the 2006 Act. In rare circumstances, a civilian court may try and sentence a member of the armed forces for a service offence. The main offences involve failure by members of the reserve forces to attend for duty. A civilian court is also able to deal with members of the armed forces who act in breach of a service community order imposed by a service court.
The aim of the regulations is to ensure that the service offender is sentenced in a comparable manner to a civilian being sentenced for a civilian offence. If a service offender being sentenced has committed the service offence while released from service custody, the civilian court must take that aggravating factor into account in the same way as it would where a civilian commits an offence while on bail. On the same basis, the civilian court can give credit for the period in which an offender was kept in service custody since being charged, in the same way as it can give credit for a period of remand in civilian custody.
The Court Martial (Prosecution Appeals) Order 2009 provides for the prosecution to appeal against rulings made in court martial trials where, if the ruling is not overturned, the accused will have to be acquitted. An example of that would be where the prosecution wants more time to produce a witness who is vital to the continuation of the trial, but the court refuses to allow more time. These powers and procedures closely follow those of the civilian system. The order also makes provision for the offence of contravention of reporting restrictions. It replaces and revokes two earlier statutory instruments which contained similar provisions, in order to align the provisions with the scheme and language of the 2006 Act.
There is one small matter in connection with the order that I should like to draw to the Committee’s attention. Article 26(2)(b) of the order refers to a “single judge” of the Court-Martial Appeal Court, which should be a reference to “the full court”. It is clear from the context that this is a straightforward error and there is no room for doubt about the intended purpose and effect of the provision. My Department therefore intends to correct this small error at the printing stage. I mention it here so that hon. Members with an interest in the subject are aware of the correction.
I should like to make a further observation about the order. The Government have given an undertaking that Ministers moving instruments subject to affirmative procedure will tell the House whether they are satisfied that the legislation is compatible with the rights provided under the European convention on human rights. We believe that the three orders that we are considering today are compatible with those rights.
In conclusion, the orders are a fundamental and important part of the work that is being done to bring the Armed Forces Act 2006 into force this October. The eight affirmative orders that have been considered over the course of the three debates are very detailed. That is to be expected as they add a further level of detailed primary legislation, which itself is a considerable piece of work. They also replace a much greater volume of primary and secondary legislation, as well as replacing the three separate systems of law with a single one. Together they set out a comprehensive system for service law. I am confident that they will serve the armed forces well in the years to come.
2.38 pm
Dr. Andrew Murrison (Westbury) (Con): The Opposition are broadly content with this range of measures, as we were with the previous measures. I congratulate the Minister on his tenacity in sticking with all this over a period of five years as a Minister and a Back Bencher during the Committee stage. He can truly claim this set of measures as his own. We might even name them after him and he will have immortality in this place. Perhaps this will be his Bill.
As I understand it, the post-charge custody will equate to remand on bail under these measures and bail will equate to charge and release from service custody. We are considering a range of measures that will essentially equilibrate civilian and military practice, bringing the two very much in line, and also close the gap between the three services and the way they approach disciplinary measures. That is to be welcomed.
The Minister mentioned the lay membership of courts martial and stated that if there is a single defendant, lay members should be members of the same service. I am not quite clear whether they must or should be members of the same service. I should be grateful for the Minister’s clarification. I make no particular judgment as to whether they should or should not be. We are considering a closing of the disciplinary measures for the services and we are experiencing a great deal of closer working between the three armed forces. It seems perhaps increasingly unnecessary that we should be dogmatic in the make-up of lay panels of courts martial. It would be interesting to know whether we “must” or “should” have members who are of the same service if there is a single defendant, and the reasoning behind that.
The Minister said that courts martial will now be standing courts martial rather than ad hoc. It is worth putting on the record that effectively they tend to be standing, in that they are geographically fixed for the most part in the UK and sit on particular days. That has characterised them for many years. In fact, this change will not be quite as dramatic as we might imagine simply by glancing through the provisions and reading the explanatory notes.
The Minister mentioned an error, which I confess I completely missed. It would be useful when he makes his concluding remarks if he expanded on that, because it would be wrong of the Committee inadvertently to pass an incorrect measure. It must be put on the record precisely what we are considering and the restorative action that will be taken before this measure passes into law.
2.41 pm
Willie Rennie (Dunfermline and West Fife) (LD): I commend the Minister for his work on the Bill over five years and on these statutory instruments over the past few months. I also commend his officials for the detailed work they have done on the Bill and the SIs that have followed. We support the measures before us today, so I have no further remarks to make.
2.42 pm
Mr. Jones: May I deal first with the error, which is simply a straightforward typing error? As it stands, the order refers to a “single judge” of the Court-Martial Appeal Court. The hon. Member for Westbury knows from experience that that is not the case in courts martial. The order will refer to “the full court”. It is simply a typing error that needs to be corrected today.
The hon. Gentleman also raised the question of whether, in a trial of, for example, an officer in the Navy—the hon. Gentleman’s own service—the panel would have to consist of all naval personnel. No, they would not. There is flexibility for that to happen, and it is down to the administration officer’s discretion. The need for flexibility was discussed in detail in considering the Bill. Where one is dealing with technical courts martial—for example, involving the running aground of a ship or an aircraft incident—it would be right to have people on the court martial who had expertise and an understanding of the circumstances in which the incident took place. That is why the flexibility is there. The answer, though, is that they do not always have to be of the same service.
This should be my last involvement with the Bill, although I understand that the Department is looking at preparatory work for the next Bill. I put on the record my thanks to the Bill Committee and to all the officials who worked hard to pull together legislation that combines more than 50 years of three single service Acts. I look forward to the Act coming into force in October and being a useful and straightforward tool for implementing armed forces discipline across all three services.
Question put and agreed to.


That the Committee has considered the draft Court Martial (Prosecution Appeals) Order 2009.—(Mr. Kevan Jones.)


That the Committee has considered the draft Armed Forces (Court Martial) Rules 2009.—(Mr. Kevan Jones.)
2.44 pm
Committee rose.

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