The Armed Forces Bill - Armed Forces Committee Contents

Examination of Witnesses (Questions 1-57)

  Q1 Chair: Gentlemen, thank you very much for coming to give evidence to this Select Committee on the Armed Forces Bill, and thank you for having given us an informal briefing on Tuesday. Despite that informal briefing, I think for the record it would be most helpful if you would be kind enough to introduce yourselves.

  Mr Barlow: My name is Gavin Barlow. I am the Director of Service Personnel policy at the Ministry of Defence.

  Mr Lewitt: My name is Gary Lewitt. I have responsibility for the formulation of policy for conduct, discipline and welfare areas for Service personnel.

  Mr Morrison: Humphrey Morrison. I am Head of legislation at the MoD and head, therefore, of the legal team for the Bill.

  Commodore Jameson: Good morning, Chairman. Commodore Andrew Jameson. I am the Director of naval legal services.

  Brigadier Griffiths: Brigadier Mike Griffiths, Director of Personnel Services for the Army.

  Air Commodore Paterson: Chair, good morning. Air Commodore Ross Paterson, Personnel Policy for the RAF.

  Q2 Chair: Thank you very much. There are two parts to the evidence session this morning. The first part relates to the Bill Team overall. The second part, with which there will be some overlap, will deal with issues about the Military Covenant arising under clause 2 of the Bill. There will be some overlap in the questions we ask, but we would like, during the second part of the session, to concentrate mostly on the Military Covenant. I wonder whether, in the first part of this morning—which should run until about 11.30 am—you could give brief answers on the Military Covenant, and keep it tight so that we can expand on it later.

  Clause 1 deals with the renewal of the primary legislation, which happens every five years. Does the fact that there is a five-year gap mean that it is harder to deal promptly and effectively with any practical and legal problems that might arise during the course of the five years?  

  Mr Barlow: Chair, thank you for that. First of all, it is important to make the point that, for us, the five-year period is more of an assistance than a hindrance. It effectively forms a guaranteed place in the timetable for the MoD to deal primarily with matters affecting the Service justice system, but also with other matters that we wish to include in primary legislation. Without that firm place in the timetable, we might find it more difficult to get a place at the right time. It also provides a basis for planning forward how we can deal with these legislative matters on a reasonably secure basis. It is really more of a help than a hindrance from our point of view. In practice, if we have to bring legislation forward in between times, and there is a sufficient case for it, as there would be for any other piece of Government business, then we have been able to do so, including in rare instances when we have used legislation brought forward by other Government Departments. Humphrey, do you want to give any examples of that?

  Mr Morrison: If that would be helpful. We have had a number of other Acts from the 1990s onwards. In addition to the five-yearly Armed Forces Acts, we have had the Reserve Forces Act 1996, another Act in 2000 and the Armed Forces (Pensions and Compensation) Act 2004. So, where there is a need for primary legislation, we apply for the time. The Armed Forces Act 2006 was certainly a huge exercise, but at the same time it was a practical exercise, rather than a political one. We might have found it very difficult to plan and carry out such an exercise without having the opportunity of a guaranteed five-year slot to relate it to. We also have, in section 323 of the Act, a power that enables us to keep in touch with all new criminal justice enactments. We have also included specific provision for the Armed Forces in legislation from other Government Departments; for example, in the Bribery Act 2010, the Corporate Manslaughter and Corporate Homicide Act 2007, the Civil Partnership Act 2004 and so on. We are constantly in touch with other Government Departments so that where they are making changes we will, if we can, put in the provisions that we need, if they are different for the Armed Forces. Sometimes, particularly with the rapid pace of legislation and the changes that may take place during the passage of a Bill through Parliament, we cannot immediately decide what we want, but in those cases what we look for is a specific power, if necessary, to catch up with a particular area included in that Act.

  Chair: Right. Thank you.

  Q3 Mr Jones: Can I ask about clause 2? I am trying to understand how the areas in the Annual Report were decided on, including the final one, which mentions any other field that the Secretary of State may be determined to include. What was the process in moving from the Hew Strachan report, which set out certain things that clearly are not in the Bill, to what we have before us now, which says that we will have an annual report that includes certain areas? Can you talk us through that policy process?

  Mr Barlow: The Bill mentions three areas. We determined that those were the most appropriate to include in the Bill on the basis that, in our judgment, they were likely to represent matters of interest every year and that it was a reasonable assumption that we would always wish to report on those.

  Q4 Mr Jones: Some of them are quite abstract, aren't they? There is no legal requirement on any local authority, for example, to carry out certain things. These things are quite abstract. How did the Hew Strachan morph into this? What process took place?

  Mr Barlow: I don't think we saw the Strachan report, which was looking at specific measures that we needed to take to pursue the Government's objective of rebuilding the Covenant, as a direct influence on the policy process for developing the legislation. The two have been conducted in parallel, rather than in sequence.

  Q5 Mr Jones: So the Strachan report was not involved at all in what we have now on the Covenant?

  Mr Barlow: It flowed from a similar policy requirement, which was the Government's desire to establish a firmer basis for the Covenant and to pursue that in a number of ways.

  Q6 Mark Lancaster: To follow on from Kevan, what, apart from health care, housing and education, was considered as potentially being one of the three reporting lines? Why, ultimately, were they dismissed?

  Mr Barlow: We have considered a lot of possible options, including wide definitions of welfare. Some commentators would have wanted us to go into broad interpretations, which would have brought in equipment and almost every aspect of defence policy. In the end, we felt that the group of policy areas that we put on the table in the Bill was representative of what the proper focus of work on the Covenant would include on a regular basis. We have then included the ability for Ministers to draw in other areas as required, including areas that may be required by the External Reference Group and other stakeholders. We are trying to create neither something that will be too focused and too limiting on the one hand nor coverage that will simply be unrealistic and too broad to be of use.

  Q7 Mark Lancaster: I accept that a balance has to be struck, but could you—very briefly because of the time—put a bit of meat on what you consider to be covered in the three areas, because they are not clearly defined in the Bill?

  Mr Barlow: That itself will vary over time. Again, we're trying not to be too constraining. We had a discussion during the informal session about what education, for example, might cover. Clearly, our initial focus would be on the education of Service children, whether in schools in the UK or in schools overseas, but we certainly would not be looking to exclude reporting, where it was necessary, on the education of veterans, ex-Service personnel—the Government have made certain commitments on that—the children of widows or injured personnel. We can bring those definitions to bear on the Covenant problem as it presents itself through the feedback we get from stakeholders in the External Reference Group and elsewhere, and what Ministers want to cover.

  Q8 Mark Lancaster: Finally, given that the broad thrust of the Bill is trying to enshrine that and that there are these three categories, do you not feel that having the catch-all category of "as the Secretary of State deems fit" potentially gives a little too much wriggle room for the Secretary of State if, for example, there is a conflict when an external group wants to see something being reported and there is no obligation to report it?

  Mr Barlow: Well, no. The way in which we see the Report working can operate effectively only if we are properly and honestly representing the views of stakeholders in so far as we can. It's not going to be in any Government's interest to produce a report on the Covenant that clearly ignores matters of significant concern to, say, the RBL, SSAFA, the War Widows Association or the Families Federations, all of which have many mechanisms for making their voices heard but for which we have a specific mechanism in place in the External Reference Group. We've had discussions about this in the External Reference Group, and I think that it's fair to say that some members of the external bodies shared the sorts of concerns that you've expressed—that there would be a lack of sufficient ability to influence the Report. But I think we've been able to reassure them that in practice that's simply not going to be the case and no Government would want to put themselves in a position where they had simply taken something off the agenda. It wouldn't be possible so to do.

  Q9 Mr Jones: Can you clarify this? You're saying the Strachan report was one line of work and then you add this. Can you explain what the process was, for example, post May and the change of Government? What actually happened? Was this you trying to interpret what had been said by the Conservatives or the Coalition in opposition? Who actually initiated this piece of work and said, "Right. Health care etc. should be in here"? What was the process?

  Mr Barlow: In general terms, civil servants are here to do what the Government of the day want. We operate only under ministerial direction, and that's exactly what happened in this case. The Strachan report—the Strachan Task Force itself—was the response to a specific early request from Ministers to look at what we could do to build on the commitments that Ministers had made at the start of the Coalition Government and that are framed in the Coalition Agreement, where there is a set of specific Covenant-related—

  Q10 Mr Jones: Was any of the work that was carried out prior to May by the previous Government taken into consideration in that work? An example would be the Green Paper response.

  Mr Barlow: The work of the previous Government in the form of the Command Paper and the subsequent Green Paper, which was published in 2009, I think, is a matter of record. Before the Election, we published a summary of the responses that we had received in the Green Paper consultation exercise, and all of that was available to Ministers as well as to others.

  Q11 Mr Jones: Sorry; that wasn't the question. Was the work taken into consideration when you were doing this process?

  Mr Barlow: Yes, we've taken account, as we've gone through, of the extensive knowledge that we've built up over the years through those processes of what the stakeholders in the Covenant want and how they want to bring it to bear.

  Q12 Mr Jones: So Ministers took a decision to reject some of the proposals that were put forward in the Green Paper and the response.

  Mr Barlow: Well, the Green Paper put forward a number of options. If you'll recall, Mr Jones, the responses that we set out to the Green Paper made it clear that there was a wide range of views on what the appropriate responses would be. For example and perhaps not surprisingly, local authorities in general were very much opposed to central Government imposing additional statutory responsibilities on them, but a wide range of other views was expressed.

  Q13 Mr Robathan: Mr Barlow, just for clarification could I ask you to be quite clear about these three fields of housing, health care and education—first, that they are the fields in which the greatest concerns of serving personnel and their families are expressed in correspondence to us and, indeed, to the chains of command; secondly, that they are not in any way exclusive, and that other matters can arise; and, thirdly, that part of the Bill's contention was not to be too prescriptive, because in that way you get into ticking boxes rather than dealing with issues?

  Mr Barlow: Yes, absolutely right. As you say, the Armed Forces community regularly raises matters under all of those headings. They represent a significant proportion of our general Covenant business, but other matters can be covered as well.

  Q14 Bob Russell: Did the Bill Team at any stage consider the appalling consequences of the privatisation of the housing stock and the purchase by Annington Homes in 1995, and the ongoing issues surrounding married housing?

  Mr Barlow: I think that that is an assessment of the MoD's current housing position, which I don't think we necessarily share; I don't think we specifically addressed that in the way in which we framed the legislation.

  Q15 Bob Russell: Secondly, on education, did the Bill Team take account of the recommendations made by the Defence Committee's specific inquiry into education during the last Parliament?

  Mr Lewitt: The driving principle behind the Covenant is about ensuring that Service personnel and their families do not suffer disadvantage as a consequence of their Service; and those who have made sacrifices are treated specially in return for that sacrifice. The answer to your first question is very much as Mr Barlow said.

  The answer to your second question is that the issues were raised in the 2005-06 Report; there is a long section towards the end of that report after the SCE discussion on educating Service children in UK maintained schools. Yes, those issues were taken into account. We have been engaged with the Department for Education on the pupil premium, as we discussed in the informal session. In the Government's programme, there is a commitment to scholarships for children of those who have died on Service. We are taking that work forward as well, and announcements have been made. The answer to your second question is yes.

  Q16 Jack Lopresti: A simple question: should the Bill specify the absolute minimum standards that must be provided in relation to health care, housing and education? Otherwise, aren't things too vague and unaccountable?

  Mr Barlow: I think this takes us into the area where one can debate the value of targets or specific performance measures. We clearly haven't set that approach out in the Bill. It will be a matter of choice for Ministers when reports are made whether they wish to back up approaches in particular policy areas with specific targets and commitments. There are extant departmental targets in some of the areas that are of concern, and where those are appropriate they will be referred to in the Report. They could be, in future, but they won't necessarily be.

  Q17 Jack Lopresti: Will any of the rights under a new Tri-Service Covenant be enforceable?

  Mr Barlow: Enforceable in law? Humphrey, do you want to say something about this?

  Mr Morrison: The aim of the clause is to provide a mechanism by which we identify things that ought to be done. Where the best way of achieving that is legislation, it will have legal effect and be enforceable; that will be the approach taken on a case-by-case basis. But the clause itself does no more than provide the mechanism of identifying those matters, so that the right decision can be made as how best to deal with it; and that may not be legislation. There are many areas in which it is likely that improvements can be made without legislation.

  Mr Lewitt: There are, of course, other means than legal enforceability. For example, on the Department for Education's guidance on Admissions for schools, there is an appeals process. Service personnel use that when they find themselves, in their view, having been discriminated against. We have a success rate that tends to be above the average. What we are looking for is not necessarily always a mechanism enshrined in statute; other mechanisms can be used.

  Q18 Gemma Doyle: Given the large amount of interest there has been in previous years in respect of benefits paid to former serving personnel, for example, under the Armed Forces Compensation Scheme—there has also been a huge amount of interest in Armed Forces pensions—would you agree that pensions and benefits should be looked at again in terms of their being specified as something that the Secretary of State should include in his Report to Parliament? I cannot envisage a time when that will not be an issue of great interest.

  Mr Barlow: Certainly, the Armed Forces Compensation Scheme has been an issue of significant interest recently. That has led to a substantial body of work in itself in the form of the Boyce Review of the Scheme and subsequent Government commitments to deal with that. That will be followed up by changes to legislation and implementation of a revised scheme. Similarly, from time to time, pensions arrangements for the Armed Forces may need to be reviewed and almost certainly will be after the Hutton Review Reports. I do not think they are in the same category of continuous regular annual challenge or concern. They have been and, to some extent, still are at the moment, but that is not necessarily an enduring matter.

  Q19 Gemma Doyle: What is the reason they were not included in the Bill? What is the thinking behind that? I think it has been an issue of concern over the past few years and it is an issue of concern at the moment, certainly in terms of the changes that have been made to pensions. I see that as an ongoing area of concern, even if people felt that the direction was satisfactory.

  Mr Barlow: If there are specific areas of concern around pensions—clearly, the Forces Pension Society among other organisations does have issues that it wishes to raise—it may well be appropriate to reflect on some of that in the Annual Report. But, it is not the only outlet. Generally, we pursue our responses to policy questions on the Compensation Scheme and on forces pensions through the other measures. It didn't feel to us that this was a new area that it was necessary to highlight in the Report format itself.

  Mr Lewitt: I think we are back with the guiding principle again. The guiding principle of the Covenant is about ensuring that there are no disadvantages as a result of the mobility that Service life requires of you. The Pension Scheme is already unique to the Armed Forces anyway. Comparator issues tend to be around access to housing, education, welfare services and health services. As Gavin says, the Armed Forces Pension Scheme is unique to the Armed Services and has other ways of being addressed, improved, amended or whatever. The same goes for the Compensation Scheme. It is not about no disadvantage compared with a civilian population.

  Q20 Gemma Doyle: It seems strange to me that the Secretary of State would be required to report to and update the House on issues like education, for which he or she would not be directly responsible. But, on an issue like pensions and benefits, where the direct responsibility is with the Government, he or she would not be required to provide an update to the House on that matter.

  Mr Barlow: There is a requirement on the Secretary of State to report on behalf of the Government as a whole. That is normal. We would simply take a different view. In a sense, precisely because the Secretary of State is not normally directly responsible for those matters, it is important to have a report every year that provides an opportunity to draw them together, and enables the Government to say what they have been doing and gives Parliament an opportunity to scrutinise that and debate it.

  Q21 Gemma Doyle: How do you envisage the process of drawing up the Report taking shape, and who do you think would be consulted on that?

  Mr Barlow: We haven't come to a final view on how we're going to do that. We will do that when the legislation is passed. We've had some discussions in the External Reference Group about how we might take the Report forward, and we've agreed that consultation is important. We already do that. In the past we have consulted the External Reference Group when producing reports on the Service Personnel Command Paper, and we see that continuing. We also need to draw in the Devolved Administrations and discuss further with them how we are going to fairly and properly represent devolved issues. A lot of that is about being sure about the administrative process, rather than the principle, which is that we all try and consult widely. We will consult widely.

  Q22 Gemma Doyle: At the moment, the main group of stakeholders you would be consulting is the External Reference Group. No one else has really been thought of.

  Mr Barlow: It is largely represented through the External Reference Group, but I don't think that would be exclusive.

  Q23 Gemma Doyle: In that case, do you have any concerns about the make-up of the External Reference Group or the independence of that Group?

  Mr Barlow: Well, the External Reference Group itself is not independent. It is a committee—if you like—chaired by a Cabinet Office official, which includes independent members as well as representatives of the Devolved Administrations and the main Departments that are involved in delivering on Covenant-related issues. The independence comes from the fact that those bodies that are independent and on the External Reference Group get to hear what is being debated by officials, and understand what is going on in terms of policy development within Government. They still have the opportunity to comment on that externally if they wish to do so, and to influence what is going on directly in the work of the Committee itself.

  Q24 Gemma Doyle: A final point, Chair. Concerns have been raised with me that the majority of Members of the Group are in fact civil service officials. They are not actually from charities or forces organisations. Is that understanding correct?

  Mr Barlow: I suppose if you were going to count numbers sat round the table, that would be true. But it is not a committee that forms policy by vote, so I don't think that is significant. In practice, the weight of discussion in the committee fairly represents the important interests that the Families Federations and the charities bring to bear. They get plenty of air time.

  Chair: I'm just about to call Christopher Pincher to ask more about this issue, but before I do, Commodore Jameson, Brigadier Griffiths and Air Commodore Paterson, you are not part of the Military Covenant team that will be giving evidence from 11.30 am onwards. Therefore, when Christopher Pincher has finished asking further questions, I will ask for your military view on the Covenant issues, and whether there is anything you wish to add to what has already been said about those.

Q25 Christopher Pincher: Beyond the External Relations Group and the Devolved Assemblies, do you envisage any limitless number of formal stakeholders to the Report?

  Mr Barlow: Well, in a sense, the overall stakeholder community could be described as the Armed Forces community as a whole.

  Q26 Christopher Pincher: But will they be formal stakeholders, with a mechanism to formalise their input?

  Mr Barlow: It's a question of how we represent their views, I think. We do that partly through the External Reference Group, partly through the chain of command and its mechanisms for managing consultation with and gaining the views of Service personnel, and partly through more formal mechanisms such as Continuous Attitude Surveys, in which we deal with both families and Service personnel. If there are other major specific issues that Ministers wish to include in the Report, that may draw in other bodies as well.

  Q27 Christopher Pincher: One last question, Chair. In the production of the Report, do you envisage that those formal stakeholders will simply provide written evidence, which the Secretary of State will take on board, or will there be a more formalised report committee?

  Mr Barlow: I would expect the final stages of drafting the Report to involve the External Reference Group. I wouldn't envisage wider public consultation on the development of the Report itself, but that will be a matter for Ministers in the end.

  Q28 Chair: Right. Before we end the questions on the Military Covenant, Commodore Jameson, is there anything about it you would like to add from a naval or military point of view?

  Commodore Jameson: Thank you, Chair. Or an Armed Forces perspective. I think my Service's understanding of the Covenant is that not only does it cover all the issues that your questions have hinted at—the relationship with other Government Departments and so on—but it is also concerned with the way that the senior leadership of the Forces interact with their people as well, in terms of ensuring that internal matters such as promotion prospects and fair treatment are equally respected and so on. Our perspective is that the Covenant is an extremely broad, intangible thing and covers a huge range of rights and responsibilities that are not always capable of being reduced to language, but that, instinctively, we feel we understand.

  Q29 Chair: Thank you. Brigadier Griffiths?

  Brigadier Griffiths: The Army is very comfortable with the aspect of a Covenant rather than a contract. After all, we have had the Military Covenant for about 20 years now, so we are comfortable with the concept, rather than it being a laid-down legal contract. We also feel we have a very clear mandate to report to the Centre, as we would describe it—the Ministry of Defence—the concerns of the Army. We do that through our various methods of providing that information, and CGS represents those on our behalf. That will be part of the process of putting together the Annual Report.

  Again, we're comfortable with the Annual Report, and we will do all we can to influence what is in there, and, if necessary, outwith the three measures that have been talked about today. We feel there is a process to allow us to do that. Underlying the Covenant is a programme of measures, which is routine work that, again, we feel is important. It's the work the Ministry of Defence does normally to improve the Covenant. I think that will be discussed later. I think that that together allows us to be very comfortable with the concept of the Annual Report.

  Q30 Chair: Thank you. Air Commodore Paterson.

  Air Commodore Paterson: Chair, thank you. The joy of going last is that everybody steals your lines, of course. I'd echo everything that's been said, but I want to reinforce the point I made on Tuesday on the onus we place on the chain of command to feed that up. It is not as easy to track them down as it might seem sometimes, because of the volume of these issues. Some of them, such as housing, accommodation, child care, education and so on, will be standing, but we see that as a key effort by our chain of command. As Mike has said, we put every effort into pushing them up to ensure that they are given every visibility.

  Q31 Alex Cunningham: I have a specific question for the Armed Services people on the minimum standards for health care, housing and education. There seems to be some fear about laying down standards across those three areas. Shouldn't there be a minimum standard for our people?

  Commodore Jameson: I entirely understand the question. The concern is that, by imposing minimum standards in some identifiable areas, there is an implication that no minimum standard applies to the areas not so covered. For the reasons I gave earlier, which were about the broad interpretation of what this is concerned with, that would be unwelcome.

  Q32 Mr Jones: The Bill is being spun, certainly by the Prime Minister, as putting the Covenant on a legal footing, which is exactly what it is not doing. Like many things that the Government do, when you open the tin there is very little in it. On the minimum standards, don't you think—I know this was the view of the civil servants when I was in the Ministry—that they will do as little as possible, so that a report may be produced that, frankly, will just gather dust on people's shelves? There won't be any way of improving lives or holding to account other Government Departments, as well as parts of the MoD, when they are not providing the Services that we should expect for our Service men and Service women, for their families and for veterans.

  Mr Barlow: If the production of a report was all that was happening, it is possible that you would have a point, Mr Jones, but that doesn't encompass the Government's commitment under the work set in hand on the Covenant.

  Q33 Mr Jones: But you've got what you wanted.

  Mr Barlow: I won't quote from "Yes, Minister", as Mr Lewitt did in the informal sessions, because I am not such an avid watcher.

  We have a significant programme of work already under way on the Covenant in response to the Coalition Programme. The Government are going to bring forward a response to the Strachan report in the spring, which will set out how they wish to take forward responses to all the Strachan recommendations, of which there is a significant number, and how they wish to do that alongside other work to meet the Coalition commitments and to take forward the commitments made by the previous Government under the Command Paper that hadn't yet been delivered.

  Q34 Mr Jones: Why weren't the Strachan recommendations implemented in the Bill? Isn't this a bit of a cack-handed way of doing things? You're taking certain things and putting them in the Bill, and somehow in a few months' time you're going to come back with something else to implement some of the things that have not been included in the Bill. That comes back to my point, and I would be interested to hear your response, because I already know the answer: what was the policy process by which you arrived at was going into the Bill?

  Chair: I suggest that we take that in the second session, which is specifically dealing with the Military Covenant, because we need to move on to other issues. Independence and powers of Service police—clauses 3 and 5—is the next issue that we want to deal with.

  Q35 Mr Ellwood: Clause 3 talks about the Provost Marshal's duty in relation to the independence of investigations. The clause introduces that all investigations carried out are free from improper interference. Why do you feel it necessary to introduce that? What has happened in the past number of years that has meant that you need it? Has there been any improper interference in investigations, and what would be classified as improper interference?

  Mr Barlow: We would see this as appropriate strengthening of the current provisions for independence. Humphrey, can you say a bit more?

  Mr Morrison: I think that the main fact in the background to this is that everyone recognises that the effective and independent nature of Service police investigations is under far greater scrutiny than ever before, and indeed, it is under scrutiny in the courts at the moment. This is partly because of the development of human rights, but it's also because of broader expectations, and because of the increased recognition of the problems of policing in an operational environment.

  Experience has taught the Armed Forces and the Centre—the MoD itself—that where fighting is going on particularly close to a civilian population, all sorts of problems can arise. When you are policing in a chaotic environment, all sorts of problems can arise. Allegations can be made about the conduct of Forces, and there is this growing need to ensure that we can point to an extremely robust and independent system, but which still necessarily depends on the investigations being conducted by Members of the Armed Forces. So, despite the fact that the courts, just before Christmas, delivered a judgment in one of the main cases, saying that the provisions we already have in place are sufficient to give the necessary degree of independence for investigating allegations against the Armed Forces abroad, we thought that both highlighting this and, as Mr Barlow has said, giving an extra buttress or strengthening to it is a good thing. It will absolutely flag up the particular authority of the Provost Marshals in maintaining their independence.

  Q36 Mr Ellwood: Thanks for that reply, but I'm still trying to understand what an example of improper interference might be.

  Mr Morrison: Oh yes. In broad terms, there are two types. One would be plain—malicious, if you like—wrongdoing: obstructing a Provost Officer or something that would amount to the offence of perverting the course of justice. Those offences are already covered by Armed Forces legislation. One type of extreme interference could be of that sort. But there can be other forms of interference, and we want to make it clear that the Provost Marshal has a duty to resist them. They are the well-meaning attempts that might be made by someone in the chain of command, particularly when they're under pressure for operational or other reasons, to try to tell the Service Police how to carry out an investigation—what to do and when. I think that it is that sort of situation that is much more likely to arise. We've had the offences of obstructing Provost Officers and perverting the course of justice in place for many years in Armed Forces legislation.

  Q37 Mr Ellwood: But that, if I may say so, is the point. If that's been in place, can you cite an example whereby, had this clause been in existence beforehand, it would have helped the Provost Marshal?

  Mr Morrison: I think that Provost Marshals certainly support this on the basis that, particularly in relation to what I would call the second head, this will help with the difficulty that the main chain of command sometimes has in reconciling the Service police needs with its own. I hope that they will support that when you see them.

  Q38 Bob Russell: Can I ask for clarification? What is the definition of "Service police"? Does it include the Ministry of Defence Police?

  Mr Morrison: No, it doesn't include the Ministry of Defence Police. The Service Police Forces are those Forces that are part of the Armed Forces. The RAF, the Royal Navy and the Army each have a force of Service police who are Members of the Armed Forces. The Ministry of Defence Police is a civilian police force.

  Q39 Bob Russell: Thank you. Although it has strong connections with the Military installations?

  Mr Morrison: Yes, its function under statute—the Ministry of Defence Police Act 1987—is related to defence, and it forms part of the Ministry of Defence, but its Members are ordinary civilian police officers with constabulary powers.

  Q40 Bob Russell: I wonder if I could ask a supplementary question. At any stage, has the Bill Team had any briefings relating to the future of the Ministry of Defence Police?

  Mr Lewitt: We have not been asked to consider there being either no Ministry of Defence Police or a different sized Ministry of Defence Police. The provision in the Bill relates to one specific issue, and of course the Bill is principally about the Armed Forces and the three Service police forces.

  Q41 Bob Russell: So no communications relating to the future of the Ministry of Defence Police have been brought to the attention of the Bill Team?

  Mr Lewitt: We've not been given any specific direction to take any view.

  Mr Morrison: May I add one thing that might help? What we are certainly being asked to do, which may give you some indication of an answer to your question, is include a provision in the Bill. There is one about the Ministry of Defence Police, which is further developing its systems for dealing with inadequate conduct. That has been the discussion about the Ministry of Defence Police in relation to the Bill.

  Mr Lewitt: I would not expect, as the owner of the Bill Team, to have been consulted on whether there should or should not be a Ministry of Defence Police. That is a broader question for security policy leads, and for those who count the numbers and work out such things as the force structure and the number of establishments.

  Bob Russell: Thank you. I just wanted to flag that point up, Chairman.

  Q42 Mark Lancaster: There seems to be some ambiguity in the Bill as to whether Her Majesty's Inspectorate of Constabulary would be free to commission its own report on its findings, at its own instigation, or whether that could be done only at the request of the Secretary of State.

  Mr Morrison: HMIC, under the clause, will have the power to decide how many inspections it undertakes, when it undertakes them and what aspects of investigations it looks at. That is all specifically provided for in the Bill. The Secretary of State can ask HMIC to do more, and to look specifically at extra things or at things that it is not proposing to cover in the Report.

  Mr Lewitt: That, Mr Lancaster, is because previously the position with the Inspectorate of Constabulary and a number of the other inspectorates has been that we have asked them to look at various parts of the Service justice system. This creates a statutory duty—Humphrey will correct me when I go off-piste—on HMIC to inspect the Service police. It is already doing so and it has inspected the RMP and the SIB—I have lost the plot; twice now, Brigadier Mike? It has recently inspected the Royal Navy police under the current regime, which is a consensual one between the Department and the Inspectorate.

  Chair: Anything else that anybody wants to ask about the policing issue, or that anybody wants to answer, unasked, about the policing issue? Okay, moving on to drug testing schemes, I call Thomas Docherty.

  Q43 Thomas Docherty: Under clause 11, the issue about the power to test a person who is incapable of providing consent appears to be focused, in proposed new section 93G, on the word "accident". I don't know whether this is for the Air Commodore or for the MoD itself, but hypothetically it would be possible for a pilot of an aircraft to appear to be intoxicated under the influence of drugs or alcohol, and perhaps be incapable of giving consent, but to bring their aircraft down without causing an accident. So we wonder whether it would perhaps be better to replace "accident" with "a safety critical incident".

  Mr Morrison: The word "accident" is exactly the same as appears in the provisions that this legislation copies almost word for word, the Road Traffic Act 1988. It also applies in the Railways and Transport Safety Act 2003, which we have looked at in particular, because the 2003 Act covers aviation matters and navigational matters. It hasn't caused any problems of the sort you mention, so far as we are aware, probably because this is a limited provision. In practice, it has not proved the case under those Acts that people are so intoxicated that, legally, they are simply incapable of giving their consent.

  This is really about looking at people whose mental or physical state is of such an extreme kind that they cannot consent at all—they are unable to communicate and so on. Theoretically, it is a point that could be taken on the wording, but we were informed by the relevant Departments that those other pieces of legislation haven't caused a problem over the past 20-odd years, so we have adopted their language.

  Air Commodore Paterson: Chair, if I could just add to that, I am certainly not in a position to talk about any of the legal points, but a huge benefit is coming in for us with the new Bill. Under the Railways and Transport Safety Act and the old Bill, we have not been able to do any compulsory testing before an incident or an accident happens. The key benefit that is coming in now is the ability to do just that. God forbid we find any such pilots, or anyone in air traffic or the engineers, but now if there is a justifiable reason to test, we will be able to do just that, to prevent an incident from happening.

  Q44 Thomas Docherty: On the issue of tariffs in clause 10(5), the maximum term of imprisonment is two years, but it is six months under the Road Traffic Act. Is there a particular reason why there is such a discrepancy?

  Mr Morrison: We looked quite carefully at functions and decided that the right comparators were the punishments available for navigation and aviation offences in the Railways and Transport Safety Act, which is two years in both the main offences sections. We have adopted the penalty from that. It also happens to fit in with our own existing two-year maximum penalty for drunkenness in the Armed Forces, so in the area that we are primarily looking at—safety-critical, difficult tasks done by pilots of planes and so on—we are following exactly the provisions of the civilian legislation.

  Q45 Mr Jones: Has there ever been a challenge because of the difference between sentences? If you committed the same offence in civilian life, you would get a maximum of only six months. Are they watertight?

  Chair: I'm not sure that that is what you were saying, Mr Morrison.

  Mr Morrison: I'm saying that the two-year penalty that we are imposing is the same as the two-year maximum under the Railways and Transport Safety Act 2003—there is no difference. There are different penalties under road traffic legislation.

  Chair: It is road traffic as opposed to aviation, which is the difference.

  Q46 Mr Jones: So what is the equivalent piece of civilian legislation?

  Mr Morrison: The Railways and Transport Safety Act 2003.

  Q47 Chair: The BMA has raised two issues with us. The first is the question whether a GP involved in the medical care of a patient should be the person who is asked to take a drug or alcohol sample. It asks whether a forensic physician could be asked to do that instead. Is that practical or not?

  Mr Barlow: There will be circumstances, particularly on operations, where it will not be practical, but that is a long-standing situation for the Military Medical Services. May I suggest, Chair, that you get more direct evidence on that from Air Commodore Wilcock, who will be joining us for the next session on the Covenant? He can give you a proper medical view on how that is dealt with.

  Q48 Thomas Docherty: In terms of sample taking, I suspect that we now know the answer, but proposed new sections 93E and 93G specify the quantity of blood to be taken. I understand that the Road Traffic Act does not do that. Proposed new section 93F on urine specimens specifies, for example, that the urine sample must be taken within an hour of the previous breath test. Again, that is not in the Road Traffic Act. Will you confirm why there are those rather discreet discrepancies?

  Mr Morrison: I think I would prefer to come back on those details. I cannot remember whether we decided to look into that further in subordinate legislation or whether there were practical issues about timing, which meant that it was better to take them out. I am happy to put in a note on that.

  Chair: Could you do that?

  Mr Morrison: Yes, happy to.

  Q49 Chair: Under clauses 13 and 19, Commanding Officers get increased discretion to reduce the rank of a person who receives a sentence of imprisonment or when imposing an administrative penalty. Is there any danger of inconsistency in that, or will guidance be issued to ensure consistency?

  Mr Barlow: We think that there is consistency, but certainly, further guidance will be issued in the "Manual of Service Law" and other administrative instructions.

  Q50 Chair: There will be guidance issued?

  Mr Barlow: There will be guidance. Perhaps I might ask Commodore Jameson to add some more detail.

  Commodore Jameson: In relation to the reduction in rank as a punishment, currently, when a warrant officer or NCO is sentenced by his Commanding Officer to military detention, he is automatically reduced in rank or rate. Interestingly, if he is sentenced by a court martial, there is a discretion, if sentencing him to detention, whether also to reduce him in rank or rate. The aim of the clause is to give the Commanding Officer the same discretion that the court martial has. In other words, the CO can decide, "Yes, I will send him to detention and I will reduce him in rank," or, "I will send him to detention, but he will retain his rank when he comes out." In most cases, the CO will conclude that if something is so serious that people are going to detention, they should be reduced in rank, but there will now be flexibility under this measure for the CO to decide otherwise.

  Q51 Chair: Thank you. There is also a potential discrepancy arising from clause 15, relating to the maximum period of detention for certain offences, depending on whether an offender is imprisoned or subject to Service detention. If imprisoned, the maximum period is 51 weeks; for Service detention, the maximum is two years. Does that create a risk of inconsistency?

  Mr Morrison: We do not consider that to be an inconsistency or to create a discrepancy, because it is important to bear it in mind that detention is not imprisonment. When we looked at this in 2006, the decision was made to set it at the same level, but, on further thought, it was recognised that in the context of this sort of offence, there was actually no reason to take away the power to rule up to two years of detention, which is available for every other offence under the Act. So, for this one offence—the failure to take a random drugs test—all we are doing is giving the same flexibility in applying the sentence of detention as would be available to the court martial in relation to any other military offence.

  The root of the answer is that there was a mistake, almost, in making that exact equation between detention, which might go on for longer but with the aim of retraining and bringing the person back in, and imprisonment, which is a fundamentally different notion.

  Chair: That is a very interesting and helpful answer.

  The last bit under this first part of the evidence session is on Service complaints procedures.

  Q52 Mr Jones: This seems like déjà vu, because when we considered the previous Bill we had long discussions on independent members for Service complaints.

  Under clause 20, there does not seem to be any requirement for independent members to be appointed. Under the previous Bill, on certain occasions we allowed for independent members on Service Complaints Panels. Are there any proposals under clause 20(7) for the Secretary of State to bring forward regulations to require independent members to be appointed in relation to certain types of offence?

  Mr Lewitt: Mr Jones, you're absolutely correct that the Armed Forces Act 2006 allowed for Service Complaints Panels that had an independent member on them. We've already had a large number of Service Complaints Panels meeting in all three Services. As the owner of Ministry of Defence policy formulation in this area, I have taken formal feedback from independent members.

  Q53 Mr Jones: How many panels have you actually sat on?

  Mr Lewitt: We have four independent members, and they've done 30 or 40 panels altogether now.

  Q54 Mr Jones: Out of how many panels?

  Mr Lewitt: I'd have to give you a note on how many times a board, rather than a panel, has met. However, the use of panels is increasing. The Air Force and the Navy are leading at the moment; the Army is catching up quickly, however. That is simply a question of the Army having had a larger number of cases.

  Q55 Mr Jones: They were against it last time.

  Mr Lewitt: In terms of what is happening this time, we have recognised, largely as a result of the European Court of Human Rights case concerning ex-Sergeant Crompton, which we won, that there might be circumstances—they are very small, because the Court held that the Service Complaints process did comply with Article 6 of the Convention—where the special bond of trust and loyalty between those in the chain of command and Service personnel might not be engaged and where the issue was around a finding of fact. In those circumstances, the Court said to us, "It would be better if you were able to have a panel all three members of which were independents." This provision allows for that.

  Q56 Mr Jones: Does this provision still give the Defence Council the responsibility for deciding those cases that need independent members?

  Mr Lewitt: My legal adviser would advise me in those circumstances anyway.

  Mr Morrison: The provision has two parts. First, there is provision for the Defence Council to decide of its own volition to have an independent panel—to decide whether there should be a panel and how it should be composed. There is also a power under which the Secretary of State can lay down regulations as to when there must be a panel and when it must have a particular composition, including all independent members. We've done it like that because the judgment of the European Court in Crompton was in very general terms. As Mr Lewitt said, it indicated that only in certain circumstances would the existing system—the provisions we already have—not meet the requirements of independence. The Court basically said—indeed, on the facts of the case, it held—that the system worked fine in terms of independence.

  Q57 Mr Jones: Would it be on a case-by-case basis or would you say, for example, that certain classes of subject would be discussed?

  Mr Morrison: What we're planning to do is to consider cases as they develop to work out, to be honest, what the Court meant in relation to such cases. It provided quite a complicated set of tests; they are set out in general terms, but when you read them, as Mr Lewitt indicated, they were quite complicated. You first have to establish whether the case engaged a right for the purpose of Article 6, which is, itself, quite a technical question. Secondly, there was the question of whether the issue does or does not go to what is called the fundamental relationship of trust and confidence. If it does, the existing system again works. Thirdly, even if the issue does not go to that relationship and therefore potentially needs an independent panel, the Court said that will only be the case if the key issue is one of fact—in other words, it is one where the system is having to choose between the evidence of two or more, probably, Members of the Armed Forces. It said that in the circumstances where all those requirements are met you will need full independence—an independent panel—and not the exact system we have at the moment. It sounds moderately simple to say that, but applying it to the complicated facts that arise in these cases is quite difficult. We will have to work on a case-by-case basis. We are allowing the Defence Council to decide on a purely case-by-case basis or to lay down more general rules. When the law really is clearer, those will then be subject to regulations—statutory regulations put before Parliament by the Secretary of State—which will lay down the circumstances in principle. At the moment, we have to admit that the case is not clear enough for us to give hard and fast answers.

  Chair: That is all for the first part of the evidence session. To those who are leaving us, thank you very much indeed. Could we now have a changeover as orderly and quickly as possible?

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