4 Our recommendation
22. The evidence which we have received confirms
us in our initial view that the remedial order was properly made,
satisfies the requirements of section 10 of and Schedule 2 to
the Human Rights Act 1998, and does not give rise to any concern
of the kind which would lead the Joint Committee on Statutory
Instruments to draw a statutory instrument to the attention of
either House. In the light of this, we are also satisfied that
appropriate steps, both legislative and non-legislative, have
been taken to bring the system of naval discipline into line with
the requirements of the Judgment of the European Court of Human
Rights in Grieves.
23. We do, however, have one general point to make
about the context in which the need for this remedial order arises.
It seems to us unfortunate that the Ministry of Defence waited
for the adverse finding in Grieves before making the changes
necessary to bring the Royal Navy's court martial system into
line with those of the other two armed services in respect of
this particular issue of compliance. In our view a more dynamic
approach to giving effect to previous adverse decisions of the
ECtHR[18] would have
led it to the conclusion that this latest finding of incompatibility
was very likely, and that further recourse to Strasbourg probably
could have been avoided had the opportunity been taken in the
Armed Forces (Discipline) Act 2000 or the Armed Forces Act 2001
to apply to the Royal Navy the prophylactic measures introduced
for the Army and the Royal Air Force which were held in Cooper
v. United Kingdom[19]
to satisfy the requirements of ECHR Article 6.1.
24. We therefore report to each House our recommendation
that the Naval Discipline Act 1957 (Remedial) Order 2004, S.I.
2004, No. 66, should be approved in the form in which it was originally
made and laid before each House on 15 January 2004.
18 See, for example, Findlay v. United Kingdom
(1997) 24 EHRR 221, Eur. Ct. HR; Incal v. Turkey judgment
of 9 June 1998, Reports 1998-IV; Hood v. United Kingdom
(1999) 29 EHRR365, Eur. Ct. HR; Smith and Ford v. the United
Kingdom, App. Nos. 37475/97 and 39036/97, judgment of 29 September
1999, Eur. Ct. HR; Moore and Gordon v. the United Kingdom,
Apps. Nos. 36529/97 and 37393/97, judgment of 29 September 1999,
Eur. Ct. HR; Morris v. United Kingdom (2002) 34 EHRR 1253,
Eur. Ct. HR. Back
19
App. No. 48843/99, judgment of 16 December 2003, Eur. Ct. HR. Back
|
