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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