Conclusions and recommendations
Explanatory Notes/Human Rights Memorandum
1. We
welcome the proactive and facilitative approach taken by the MoD
to our scrutiny of the Bill's human rights compatibility, including
the provision of a detailed and helpful human rights memorandum,
and we commend that approach to other Departments as an example
of good practice. (Paragraph 1.3)
Significant human rights issues
(1) Treatment of detainees by members of the Armed
Forces
2. We
decided not to return to the substantive question of the alleged
ill-treatment of detainees by members of the armed forces in the
context of this Bill, but to keep open the possibility of doing
so in a future Report. We made this decision in light of the fact
that the allegations are currently the subject of a number of
different public inquiries and ongoing investigation by the Ministry
of Defence. If it is established by any of these inquiries or
investigations that the allegations disclose the existence of
systemic abuse of detainees by members of the armed forces, it
might be appropriate to consider whether any legislative responses
are required to prevent such abuse from happening again. We may
therefore return to the issue in a future Report in the light
of any relevant findings and recommendations. (Paragraph 1.8)
(2) Independence of service police investigations
3. We
have considered whether the statutory scheme, as amended by the
Bill, provides sufficient guarantees of independence of the investigators
from the chain of command, but have concluded that it would be
premature to express a view on this question pending the decision
of the Court of Appeal in the Ali Zaka Mousa case. (Paragraph
1.17)
4. The promptness
of an investigation is an important aspect of its compliance with
the positive obligations under Articles 2 and 3 ECHR. We recommend
that, to give better effect to the Government's intention that
HMIC can be required to report on the promptness of service investigations,
it be spelled out on the face of the Bill by including an explicit
reference to "promptness" in new section 321A(4) of
the Armed Forces Act 2006 (inserted by clause 4 of the Bill).
The following amendment to the Bill is designed to give effect
to this recommendation: (Paragraph 1.19)
(3) Powers of entry and serach
5. We
have considered carefully the justification provided by the Government
for extending the Service police's power to enter and search residential
premises but we are not persuaded that the Government's case is
borne out by the evidence or that the justification relied on
is sufficiently weighty to justify such a drastic departure from
the procedures which protect against the arbitrary interference
with the right to respect for people's homes. (Paragraph 1.26)
6. In our view, the
strength of the concerns about the human rights compatibility
of all premises warrants and multiple entry warrants makes their
repeal a candidate for inclusion in the Government's Protection
of Freedoms Bill which contains some provisions limiting powers
of entry. Instead, they are being extended by the provisions
in this Bill. We recommend that the power to authorise all premises
and multiple entry warrants to enter and search residential premises
be deleted from the Bill. The following amendment is designed
to give effect to this recommendation: (Paragraph 1.29)
(4) Service Sexual Offences Prevention Orders
7. We
welcome the Minister's reassurance that it is the Government's
intention that the criminal standard should be applied. We recommend
that, for the avoidance of doubt, the Bill should be amended to
make clear that the criminal standard should apply to any factual
determinations necessary for the making or variation of any service
sexual offences prevention order. (Paragraph 1.33)
(5) Service Complaints Panels
8. We
welcome the decision of the Government to proactively respond
to the decision of the European Court of Human Rights in Crompton
v UK to attempt to increase the flexibility with which an independent
Service Complaints Panel might be convened. There is a risk that
the ad hoc decision making power of the Defence Council and the
Secretary of State under the provisions in the Bill may be exercised
in a way which creates a panel which is still inconsistent with
the right to a fair hearing by an independent and impartial tribunal,
as guaranteed by Article 6 ECHR. However, we welcome the recognition
in the Minister's response that the decisions of the Defence Council
will be subject to judicial review, including consideration of
compatibility with Article 6 ECHR under the Human Rights Act 1998.
This will allow individuals to challenge the composition of any
panel at an early stage. We appreciate that this area of law is
currently evolving and there is some need for flexibility. We
will continue to monitor developments, including any secondary
legislation produced under these proposals. (Paragraph 1.42)
(6) Civilians subject to service displine
9. We
reiterate the view of our predecessor Committee that the compatibility
of the trial of civilians in a military context, including in
the service civilian court, with the right to a fair hearing (as
guaranteed by Article 6 ECHR) is far from clear. We accept that
this area of law is uncertain. We do not share the confidence
of the Government that the changes made by the Armed Forces Act
2006 ensure that civilians are only tried in military courts in
"exceptional circumstances" as defined by the European
Court of Human Rights. We will continue to monitor the case-law
of our domestic courts and the European Court of Human Rights
on this issue. (Paragraph 1.46)
(7) Armed forces covenant reports
10. We
welcome the armed forces covenant report as a measure which enhances
the Government's accountability to Parliament for the protection
of the rights of members of the armed forces. (Paragraph 1.49)
(8) Under-18s serving in the Armed Forces
11. We
share the view of our predecessor Committee that the Government
should adopt published action plan for responding to the recommendations
of the UN Committee on the Rights of the Child on UK compliance
with the UN Optional Protocol on Children in Armed Conflict.
(Paragraph 1.56)
12. We consider that
this Bill provides a good opportunity for Parliament to debate
the recommendations of the UN Committee and the service of under-18s
in the Armed Forces. We are particularly concerned that the Government
has not taken this opportunity to clarify (a) the arrangements
for the discharge of under-18s from the Armed Forces if they decide
that they no longer wish to serve; and (b) the equalisation of
the duration of the service commitment made by under-18s to four
years' service. (Paragraph 1.57)
13. We welcome the
Minister's commitment to reconsider the treatment of unhappy recruits.
While we welcome the Minister's assurance that unhappy recruits
are liable to discharge at the discretion of their commanding
officers, the lack of statistics on under-18s who request a discharge
but are refused makes scrutiny of the current arrangements difficult.
We are concerned that, without special provision for discharge
(other than at the discretion of the commanding officer), there
is a risk that continued service may not be considered voluntary
in the sense required by the Optional Protocol. We recommend that
a right to discharge for under-18s be established, and that all
those recruited under the age of 18 be told of this right. (Paragraph
1.58)
14. We do not consider
that the Minister has provided a clear explanation of the Government's
justification for maintaining a differential period of commitment
for under-18s joining the Armed Forces. We recommend that this
Bill be amended to equalise the initial period of service for
people joining the Armed Forces. (Paragraph 1.59)
(9) UN Convention on the Rights of Persons with
Disabilities: Service in the Armed Forces
15. We
welcome the Minister's commitment to keep under periodic review
the existing reservation to the UN Convention on the Rights of
Persons with Disabilities for service in the Armed Forces. (Paragraph
1.65)
16. We reiterate the
view of our predecessor Committee that the broad exemption for
service in the Armed Forces from the protection of the Equality
Act 2010 is disproportionate and unnecessary. We are concerned
that the reservation to the UN Convention is likely to be incompatible
with the object and purpose of the treaty. (Paragraph 1.66)
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