3 Our consideration of the order
14. When we conducted our preliminary examination
of the order, we formed the following provisional views as to
the matters listed in paragraphs 12 and 13 above.
a) The order imposes no charge on the public
revenues, and does not require payment to a public authority.
b) There was no doubt in our minds that the order
is within the power conferred by section 10 of the Human Rights
Act 1998, and that the procedural requirements of section 10 and
of Schedule 2 to that Act have been complied with.
c) The purpose for which it is made is precisely
that for which the power was intended.
d) No aspect of it appeared to us to call for
elucidation.
e) The drafting appeared to us to be clear and
accurate.
f) The order had been laid before Parliament
on 15 January, the day before it came into force, and there had
been no undue delay between the making of the order on 14 January
and its laying on 15 January.
g) The Order seemed to us to be justified, and
the use of the urgent procedure also seemed to us to be justified.
There was in effect a freeze on naval disciplinary hearings as
a result of the judgment of the European Court of Human Rights,
and there was an urgent need to amend the Naval Discipline Act
1957 so far as necessary to allow disciplinary hearings to resume
in a manner which complies with the judgment. The amendments made
to the Act by the Order went no further than is necessary to remedy
the incompatibility between the legislation and Article 6 of the
ECHR identified in the judgment of the Court. It would have been
impracticable to wait until a Bill could be introduced to deal
with the matter.[9]
15. At the same time, we wanted to satisfy ourselves
that appropriate non-legislative steps were being taken to ensure
that the operation of naval courts martial would not continue
to be incompatible with Article 6 of the ECHR on account of arrangements
which were not required by legislation and so had not been amended
by the remedial order. We noted that the European Court of Human
Rights in Grieves v. United Kingdom had attached significance
to three factors which were not the result of the legislation
(see paragraphs 80-90 of the Judgment). These were:
a) the use of serving naval officers as judge
advocates with a pivotal role in the court martial (paragraphs
85 and 87 to 89 of the Judgment);
b) reporting practices in relation to the performance
of naval judge advocates before Queen's Regulation RN 3630 came
into force (paragraph 86 of the Judgment); and
c) the level of detail in briefing notes sent
to members of naval courts martial (paragraph 90 of the Judgment).
16. Our Chair therefore wrote on 4 February 2004
to the Parliamentary Under-Secretary of State for Defence, Mr
Ivor Caplin MP, asking what steps were being taken to ensure that
the factors would not in future compromise the capacity of the
naval discipline system to operate in a manner compatible with
Article 6.1 of the ECHR, and whether reasonable steps had been
taken to publicise the making of the remedial order to all ranks
of the Royal Navy and other interested parties to enable representations
to be made within 60 days.[10]
17. We also thought it appropriate to invite anyone
with an interest in the matter to submit evidence to us to inform
our deliberations. Our Chair wrote on 4 February 2004 to the Chairman
of the House of Commons Select Committee on Defence, the Rt Hon
Bruce George MP, and to Admiral the Lord Boyce GCB, OBE, who had
spoken on the subject on the floor of the House of Lords, asking
whether the Select Committee and Lord Boyce wished to contribute
to comment on the remedial order.[11]
In addition, we issued a press notice inviting anyone with an
interest to submit evidence.[12]
18. Admiral the Lord Boyce replied to our Chair's
letter on 16 February 2004.[13]
He made no substantive comment on the remedial order itself, but
drew attention to the fact that the naval discipline system, despite
having been held to be incompatible with Article 6.1 of the ECHR,
had in fact worked well and fairly for many years, and that the
acquittal rate at naval courts martial had been at least as high
as in criminal trials in ordinary courts. He pointed out that
operating the new arrangements and compensating anyone held to
have been unfairly and unsafely convicted would impose costs which
would be likely to be at the expense of the front line without
any improvement in the quality of justice delivered by courts
martial. If future judgments of the European Court of Human Rights
threatened operational effectiveness, he suggested that it might
be necessary to seek exemptions for the Armed Forces. Nevertheless,
he understood the reasons for making the remedial order and had
no doubt that the Royal Navy was taking the necessary action to
comply with the Court's judgment.
19. The Clerk of the Defence Committee responded
to our letter on 17 March[14]
reporting his Committee's concerns that delays in courts martial
arising from the ECtHR's judgement could have adverse effects
on discipline and morale in the Royal Navy, and that the decision
could call into question the proceedings of previous courts martial.
The Defence Committee is pursuing these issues separately with
the MoD. As regards the first point, we note that the use of the
urgent procedure for remedial orders allowed the incompatibility
to be resolved very quickly after the decision in Grieves—in
fact within one month of the court's finding, including the Christmas
break. We make no direct comment on the Defence Committee's second
concern, but we do not consider that it is a ground for delaying
approval of the remedial order. We note, however, that the Select
Committee on the last quinquennial Armed Forces Bill reported,
in relation to legislative changes made in 2000 arising from decisions
of the Strasbourg Court, that—
The general view [within the armed forces] was that,
with only a few months' experience of the new procedures, it was
too early to make a full assessment but that the impact had been
much less dramatic than had been anticipated and that the effects
had been mainly positive.[15]
20. The Minister's reply, sent on 18 February 2004,[16]
informed us that the use of naval officers as Judge Advocates
and judicial officers had ceased with effect from the date of
the Judgment of the European Court of Human Rights, and had been
replaced with civilian judge advocates appointed by the civilian
Judge Advocate of the Fleet. The post of Chief Naval Judge Advocate
had lapsed. As no serving officers were acting as Judge Advocates,
Article 3630 of the Queen's Regulations for the Royal Navy (which
set out the reporting arrangements for naval judge advocates)
was no longer applicable and had been removed from the publication.
The briefing notes for members of naval courts martial had already
been reviewed and reissued in late 2002. They are no longer deficient
and are kept under regular review. Finally, steps which seem to
us to be appropriate had been taken to bring the remedial order
to the attention of all personnel (both service and civilian)
in the Royal Navy.
21. We received no other evidence or representations
in connection with our examination of the remedial order. The
Minister wrote to the Chair of this Committee on 17 March indicating
that he too had received no representations within the 60 day
period.[17]
9 The Ministry of Defence are currently preparing a
"Tri-Service" Discipline Bill to replace and update
the existing separate Acts for each Service. This is unlikely
to be introduced much before the expiry of the current Acts in
2006. Back
10
See Appendix 1. Back
11
See Appendices 3 and 5. Back
12
Press notice dated 12 February 2004 available on the Committee's
website at www.parliament.uk Back
13
See Appendix 6. Back
14
See Appendix 4. Back
15
Select Committee on the Armed Forces Bill, First Special Report,
Session 2000-01, HC 154-I, para.22. Back
16
See Appendix 2. Back
17
See Appendix 7. Back
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