3Observations
32.We took evidence on the basis of a draft Bill as at 6 September 2016. Its sponsor, Gareth Johnson MP, explained that this was not the final version of the Bill but that he would appreciate the Committee’s thoughts on the draft as a basis for discussion. The observations which follow are designed to inform the debate at the Bill’s Second Reading and in its later stages.
Scope
33.The military honours system is complex, and care has to be taken to ensure that the Bill can successfully identify the categories of awards which it is seeking to protect. In oral evidence Mr Johnson stated that:
I have tried to narrow [the scope] down to military medals, plus the George Cross, the George Medal and the Queen’s Gallantry Medal. That is it. It wouldn’t include, for example, a long service medal awarded by the police service.32
34.In seeking to define the category of ‘military medal’ in more detail, he further explained:
‘Military medal or insignia’ means a medal, insignia clasp, ribbon, bar or equivalent, authorised by the monarch in connection with acts or acts of particular service undertaken as a member of the United Kingdom’s armed forces.33
In this construction, the Bill would intend to have within its scope awards identified by the Ministry of Defence in its official guidance34 in the category of ‘Armed Forces Operational Gallantry’ awards. It would also bring into scope three specific decorations which were identified in oral evidence as ‘civilian’ awards; the George Cross (GC), George Medal (GM) and Queen’s Gallantry Medal (QGM). These are the three highest awards in the official category of ‘Non-Operational Gallantry’ awards.
35.Relying on a sharp distinction between ‘military’ and ‘civilian’ medals could still be potentially problematic. Awards that are characterised in this sense as ‘civilian’, such as the GC, are also often awarded to members of the Armed Forces, and occasionally in operational circumstances for action not in the face of the enemy. Furthermore, there is also nothing in the statutes of the Victoria Cross, which prevents it being awarded to a civilian, and such awards have occurred in the past, albeit not since the late 19th century.35 The formulation suggested in oral evidence also creates difficulties in relation to awards such as the Air Force Cross, a Non-Operational Gallantry award that would seemingly not be included alongside the GC, GM and QGM.
36.This distinction becomes even more difficult when campaign medals are considered. Mr Johnson indicated that he intended that they would be brought into scope.36 Campaign medals can also be awarded to civilians and medals such as the Civilian Service Medal (Afghanistan) are mainly aimed at civilian recipients, although certain members of the Armed Forces are also eligible awardees.
37.Rather than relying on a new definition, a solution could be to list individually all of the awards that were intended to be in scope, either in a Schedule to the Bill which could be amended by statutory instrument, or by reference to an external list. An example of the latter can be found in section 6 of the Inheritance Tax Act 1984 which refers to the Order of Wear in the London Gazette.37
38.Criminal offences need to be properly defined in order to provide certainty about what is being placed on the statute book. Without that certainty, offences may be interpreted by the courts in a way that Parliament did not intend. The rules regarding eligibility within the military honours system are complex and categorising awards is not straightforward.
39.We conclude that those awards to be covered by the Bill should be listed in a Schedule, or by reference to an authoritative external list.
Defences
40.A number of our witnesses emphasised the importance of ensuring that relatives of deceased or incapacitated medal recipients can continue to wear their relations’ medals at commemoration events without risk of prosecution.38 Mr Johnson indicated that family members would be doubly protected as they would lack the necessary intention to deceive, as well as being able to avail themselves of a specific defence that will be placed in the Bill.39
41.The term ‘family member’ must however be defined in terms of the proximity of the relations that it is seeking to include in the defence. It is not a legal term of art with a single definition.40 Acts of Parliament which use the term commonly carry a definition of ‘family’ within them to be used for the purposes of that Act.41 Mr Johnson suggested in oral evidence that he was minded that this defence should be quite narrow, so that for example a nephew deceitfully wearing medals could not rely on the defence by claiming that they were his uncle’s awards.42
42.The inclusion of a defence to ensure that family members representing deceased or incapacitated relations who are recipients of medals is vital, but ‘family member’ must be properly defined to ensure that there is no room for uncertainty or abuse. We suggest that the Bill include a definition of ‘family member’ in order to provide certainty over who will be covered by this category.
Penalties
43.Mr Johnson indicated that he considered that the appropriate maximum penalty was six months imprisonment or a fine of up to £5,000 at level 5 on the standard scale.43 The rationale behind drafting the penalty in this way was to address three concerns:
- First, the potential for a custodial sentence would ensure that there is no need for a separate power of arrest in the Bill. We note here that, since the removal of the concept of an ‘arrestable offence’ by the Serious Organised Crime and Police Act 2005,44 the need for a separate power of arrest would be unnecessary in any event;
- Second, that a level 5 fine on the standard scale would be at a maximum of £5,000. We note here that this upper limit was removed in 2012. Magistrates now have power to issue a fine of any amount for offences where £5,000 was previously the maximum; and,45
- Third, that this formulation would ensure that it could be dealt with only in a Magistrates Court. A certain way of doing this would be to have this explicitly stated in the Bill—“This offence is triable only summarily”.
44.The appropriate level of penalty has clearly been considered in some detail by the Bill sponsor. We are broadly satisfied that the boundaries of penalties proposed—a period of imprisonment not exceeding six months or a fine—are appropriate.
Considerations on devolution
45.If the territorial extent of the Bill is to extend beyond England, consideration should be given to whether the Bill might encroach on areas of policy that are devolved to the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly.
46.Under the Scotland Act, matters relating to “the naval, military or air forces of the Crown, including reserve forces” are reserved matters that are outside of the legislative competence of the Scottish Parliament, as indeed are matters relating to “honours and dignities”.46 Moreover, the Explanatory Notes to the Scotland Act state that the reservation relating to defence includes “the creation of offences relating particularly to the armed forces (for example, the unauthorised wearing of military uniforms)”.47 We would anticipate that this would also cover the unauthorised wearing of decorations. The National Assembly for Wales currently operates under a conferred powers model, and there are no relevant powers relating to the Armed Forces which have been conferred by Westminster. If the relevant parts of the Wales Bill, which at the time of writing is progressing through its legislative stages in the House of Lords, are not amended, then matters relating to the Armed Forces will be reserved in the same manner as they are in Scotland.48 The Northern Ireland Act 1998 makes the “armed forces of the Crown” an excepted matter and beyond the legislative competence of the Northern Ireland Assembly.49
47.We are satisfied that the creation of new offences relating to decorations and medals would not encroach upon the legislative competences of the devolved institutions.
European Convention on Human Rights
48.Given the issues that have arisen in the United States in relation to the compatibility of new legislation in this area with rights of freedom of expression, the possibility of a UK statute engaging Article 10 of the European Convention on Human Rights (ECHR) should be briefly considered.50
49.The ECHR case of Donaldson v. United Kingdom51 demonstrated that it is possible for the outward wearing of badges or devices to be considered as ‘expression’ for the purposes of Article 10, although emphasis in this case was placed on the device in question being worn as an expression of the applicant’s political views, which may not be so straightforward where medals are concerned. Even where the rights in Article 10(1) are engaged, Article 10(2) sets out the conditions in which it is legitimate for these rights to be restricted, including for the purposes of preventing disorder or crime (such as fraud) or to protect the reputation or rights of others (which could include the legitimate recipients of awards). The inclusion of an intent to deceive as an element of the offence, and the defences relating to family members would also be likely to assist in the legislation passing the Court’s test of proportionality.
50.The case law of the European Court of Human Rights suggests that a successful challenge would be unlikely. This possibility will be reduced further if the Bill is clearly scoped and contains offences which are unambiguous in their application and extent.
32 Q3
33 Q13
34 Ministry of Defence Joint Service Publication 761, Honours and Awards in the Armed Forces, October 2016
35 There have been five civilian recipients of the Victoria Cross. The most rececnt was the Reverend James Adams VC, for actions during the Second Anglo-Afghan War in 1879. While Reverend Adams was attached as a chaplain to the Kabul Field Force, he was not a member of the Armed Forces. See The London Gazette, August 26 1881, Numb. 25008. p. 4393
36 Qq11, 31
37 Inheritance Tax Act 1984 (c. 51), section 6(1)(1BA)
38 Qq1, 2, 22; Royal British Legion (AVP0001); Royal Air Force Families Federation (AVP0004); Naval Families Federation (AVP0005)
39 Q23
40 Edmund Davies LJ in Holm v RB Kensington & Chelsea [1968] 1 QB 646, 655, citing Burt v Hellyer (1872) LR 14 Eq 160,164: “[family] is a popular and not a technical expression, and may mean several different things”.
41 See for example, Immigration Act 1971 (c. 77), section 5(4) or Companies Act 2006 (c. 46), section 253. Contrast these narrower definitions with the more expansive definition that applies to Part IV of the Housing Act 1985 (c. 68) by way of section 113 of that Act.
42 Q23
43 Qq15–17
44 C. 15 (2005), section 110. As long as the general requirements in section 24 of the Police and Criminal Evidence Act 1984 (ch. 60) are met, a police officer would have power of arrest without a warrant for these offences.
45 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), section 85
46 Scotland Act 1998 (c. 46), Schedule 5, para 9(1)(b); para 1(2)(2)
47 Explanatory Notes to the Scotland Bill, relating to Schedule 5, Part I, Paragraph 9: Defence
48 Wales Bill [HL Bill 63 (2016-17)-EN], Schedule 1, para 9(1)(b); Explanatory Notes to the Wales Bill, para 69
49 Northern Ireland Act 1998 (c. 47), Schedule 2, para 4.
50 European Convention on Human Rights, Article 10. See also Q38.
51 (2011) 53 E.H.R.R. 14
16 November 2016