Legislative Scrutiny: Armed Forces Bill - Joint Committee on Human Rights

Legislative Scrutiny: Armed Forces Bill - Joint Committee on Human Rights Contents

3. Letter from the Committee Chair, to Rt Hon Liam Fox MP, Secretary of State for Defence, 8 February 2011

The Joint Committee on Human Rights is considering the compatibility of the Armed Forces Bill with the human rights obligations of the UK. We are grateful for the human rights memorandum prepared by the Ministry of Defence, which we received on 11 January 2011, shortly after the Bill was published. It has assisted us greatly in our scrutiny of the human rights implications of this Bill. We are also grateful to your officials who have made themselves available to meet with our staff and have constructively and helpfully responded to queries about the Bill. We would be grateful if you could provide some further information on specific issues arising in connection with the Bill, outlined below.

(a) Independence of service police investigations

We are currently considering whether the provisions in the Bill which are designed to strengthen the independence of service police investigations satisfy the requirements of the positive obligations in Articles 2 and 3 ECHR. As you point out in your human rights memorandum, the High Court in the recent case of Ali Zaki Mousa rejected arguments that investigations by the Royal Military Police under the provisions in the Armed Forces Act 2006 are not sufficiently independent and effective to meet the requirements of Article 3.[76] We note your view that amendments to the 2006 Act in the Bill, bolstering the independence of service police investigations, are not required by the positive obligations in Articles 2 and 3 ECHR in light of the Mousa judgment. However, we understand that there is the possibility of an appeal against the High Court's judgment in Mousa and in any event we would be grateful for your views on the following questions.

1. Bearing in mind the High Court's view that it is difficult to conceive of the Commanding Officer not referring the case in practice to the Director of Service Prosecutions, please explain why the Government considers that it is appropriate for the Commanding Officer (as opposed to an independent prosecuting authority) to continue to have any discretion in relation to charging decisions.

2. Can serving Armed Forces personnel investigate cases where systemic failings are alleged, without endangering the perceived independence of those inquiries?

3. In the interests of promoting compliance with the procedural requirements of Articles 2 and 3 ECHR, should Her Majesty's Inspectorate of Constabulary be specifically required to report on the promptness of any investigation, as well as its independence and effectiveness?

(b) Powers of entry and search

The Bill amends the power of a judge advocate to authorise a service policeman to enter and search residential premises.[77] The amended power will allow the issue of an "all premises warrant", which authorises entry to all residential premises occupied or controlled by the person specified, whether or not the premises are specifically identified by the application.[78] It will also allow the issue of a "multiple entry warrant", which authorises entry to and search of premises on more than one occasion.[79]

The Explanatory Notes to the Bill acknowledge that this provision engages the right to respect for private and family life and home, under Article 8 of the ECHR, and the right to peaceful enjoyment of possessions under Article 1 Protocol 1 ECHR.[80] However, the Government considers it to be both necessary for the purposes of the detection and prevention of crime and proportionate to that aim, for two reasons. First, the power is limited to residential premises of persons who are subject to service jurisdiction and, second, "the clause mirrors section 8 of the Police and Criminal Evidence Act 1984."

When s. 8 of the Police and Criminal Evidence Act 1984 was amended by the Serious Organised Crime and Police Act 2005, the JCHR reported that the extended powers to issue all premises warrants and multiple entry warrants raised significant human rights concerns, both under the common law and Article 8 ECHR.[81] It said the provisions "give justices of the peace authority to issue a general warrant of a kind that has been anathema to the common law for centuries on account of the very wide discretion it confers on public officials, and the lack of effective prior judicial control over the decision to enter (if need be, by force) private premises including dwellings."[82] It also concluded that the extended powers gave rise to a significant risk of incompatibility with the right to respect for private life and home in Article 8 ECHR, because there was no means for ensuring judicial control over subsequent exercises of the authorisation to enter and search, even though the circumstances affecting the continued necessity and proportionality of the entry and search might have changed considerably.[83]

4. On what evidence does the Government rely to demonstrate that the extension of the power to authorise entry and search is necessary? In particular (a) please provide statistics on the use of existing powers and (b) any circumstances in which the existing powers have proved adequate.

5. Why were these powers not extended in the Armed Forces Act 2006, which postdated the 2005 extension of the general entry and search power in Section 8 PACE?

6. What post-legislative scrutiny has the Government carried out of the operation of the power in Section 8 PACE since its extension in 2005?

7. Please explain how the proposed extension of entry and search powers in the Bill is compatible with the Government's commitment to bring forward measures in the Freedom Bill limiting powers of entry.

(c) Service Sexual Offences Prevention Orders.

Clause 17 of the Bill extends the power of Courts Martial to make Sexual Offences Prevention Orders (SOPO) in relation to persons who pose a risk of sexual harm while part of the armed forces community overseas. SOPO are Orders created under the Sexual Offences Act 2003. They are civil orders, similar to ASBOS or Violent Offender Orders, which may be sought in connection with certain sexual offenders. Clause 17 of the Bill limits the power of the Courts Martial or civilian court to make an order in relation to risks overseas to circumstances either when the Court has convicted the relevant person or made a finding that the defendant is either not fit to stand trial or he or she is guilty by reason of insanity. Courts Martial will also have the power to make an Extension Order in circumstances where an order has already been made under the SOA 2003.

Orders of this type engage both the right to respect for private life (Article 8 ECHR) and may also engage the right to a fair hearing (Article 6 ECHR). In order to ensure compatibility with the right to a fair hearing, the standard of proof applied to facts relevant on application for these type of orders is generally the enhanced civil standard, which is virtually indistinguishable from the criminal standard (proof beyond reasonable doubt) (Mccann v Crown Court at Manchester [2002] UKHL 39; see also Cleveland Police v H [2009] EWHC 3231, para 32).

After a conviction or a relevant finding, the relevant facts will have been ascertained by the civilian court or the Court Martial to a criminal standard of proof. However, SOPO are renewable up to 5 years after an Order has been made. In these circumstances, the trigger offence or relevant finding will be over 5 years old. Equally, Orders may be varied at any time, including those Orders which have been subject to renewal. Extension orders are not time-limited and can be made at any time when an original Order is in operation. This means that the terms of an order could be considered some time significantly later than the original conviction or relevant finding of the Court. The facts relevant to the assessment of the necessity for the Order may necessarily be broader than the facts ascertained in connection with the Conviction and the relevant finding.

8. Can you confirm that the criminal standard of proof (beyond reasonable doubt) will apply in relation to the determination of any relevant facts relevant to the variation or renewal of an Order or the making, variation or renewal of an Extended Order under Clause 17?

9. If so, please explain why the Government considers that it is not necessary to make this clear on the face of the Bill.

(d) Service Complaint Panels

Clause 20 of the Bill proposes two measures designed to respond to the judgment in Crompton v UK. Clause 20(5) empowers the Defence Council (the highest level of the Ministry of Defence as regards command and administration of the armed forces) to appoint a panel (to deal with complaints) composed of independent members, or in part made up by independent members. Clause 20(7) empowers the Secretary of State to make regulations requiring in prescribed descriptions of complaint delegation of a case to a panel composed of independent members, or in part made up by independent members. The Human Rights Memorandum explains:

[This] approach reflects the view that it is not yet easy to be sure how the European Court's approach would apply to different cases, or to formulate confidently rules as to when an independent fact-finding tribunal will be required. It is considered that further development of the court's jurisprudence is likely. The purpose of the clause is accordingly to allow general rules to be laid down as the application of Article 6 to complaints by service personnel becomes clearer.

The provisions in the Bill provide very broad discretions for the Defence Council and the Secretary of State. They may determine the size and nature of the panels they consider necessary to meet the requirement for independence, including providing for panels which are only in part constituted of independent members and may split the functions of the panel, to provide that certain functions are provided by service members and others by independents. The Human Rights memorandum explains that the Government has taken an interim approach, subject to more permanent rules being established in light of more definitive case law.

10. The Defence Council is not an independent body for the purpose of Article 6 ECHR. Please explain why the Government considers that it will be appropriate for this body to exercise a very broad discretion to determine (a) the cases where a more independent process is necessary; and (b) what any more independent process should look like.

11. Has the Government considered whether such determinations might be likely to lead to further challenges to this discretionary mechanism under Article 6 ECHR?

12. Has the Government considered whether further guidance can be given to the Secretary of State in Clause 20(7) to better define the circumstances when an independent and impartial tribunal will be necessary, including by reference to the existing Strasbourg case-law? If so, we would be grateful if the Government could explain why the power of the Secretary of State could not be better defined and/or the discretion of the Defence Council removed. In particular:

a) In any case where an independent hearing is required, does the Government consider that a tribunal comprising a minority of independent members could satisfy the requirements of Article 6 ECHR?

b) Please provide examples of cases where the functions of a complaints panel could be split and satisfy the requirements of Article 6 ECHR.

13. In light of the ability of the Government to propose amendments to primary legislation using the remedial order procedure in the HRA 1998, I would be grateful if you could explain the Government's decision to create broad discretionary powers for both the Defence Council and the Secretary of State in relation to the need for an independent inquiry in relation to certain service complaints.

(e) Civilians subject to service discipline

The Armed Forces Act 2006 makes detailed provision for the treatment of civilians subject to service discipline. In some circumstances, individuals may be tried before the Service Civilian Court and in others by a Court Martial. Clause 22 makes a number of minor amendments to the scope of their application. Our predecessor Committee raised a number of questions about the propriety of the application of service discipline to civilians. The European Court of Human Rights in Martin v UK held that determination of criminal charges against civilians by military courts would only be compatible with the right to a fair hearing by an independent and impartial tribunal (Article 6 ECHR) in "very exceptional circumstances". The Human Rights Memorandum reiterates that:

The Ministry of Defence's view is that the European Court was not saying that the United Kingdom needs to put in place a UK civilian court jurisdiction such as the Crown Court, but a court jurisdiction which satisfies the requirements of a civilian court even if established under legislation dealing with the armed forces. The Ministry of Defence also considers that this meant that, if a trial of a civilian is to be heard before a Court Martial, all the lay members of the court must be civilians.

14. Please provide a fuller explanation of the Government's analysis of the decision in Martin v UK. In particular, please elaborate on the Government's view that special civilian courts designed to deal with civilians in a military context are not "military courts" for the purposes of the Court's guidance that civilians should only be tried by military courts in "very exceptional circumstances".

(f) Service in the Armed Forces under 18 years

The Committee's predecessor, in its Report on Children's Rights, recommended that the UK adopt a plan of action for implementing the recommendations of the UN Committee on the Rights of the Child in its 2008 Report on the UK's compliance with the Optional Protocol on Children in Armed Conflict.[84] Those recommendations include raising the minimum age for recruitment to the armed forces from 16 to 18 and reviewing the requirements for permitting the discharge of child recruits.

15. What steps have been taken by the Government to implement the recommendations of the UN Committee on the Rights of the Child in 2008 on service in the Armed Forces of personnel aged under 18?

16. I would be grateful if you could confirm: (a) the number of 16 and 17-year-olds currently serving in the Armed Forces; (b) the number of 16 and 17-year-olds recruited in the past 3 years (2008-10).

17. Please confirm the current arrangements for personnel recruited as 16 and 17-year-olds who wish to be discharged before the age of 22. In particular, please explain any discretionary arrangements which apply to allow young people to leave the Armed Forces before they reach 22.

18. Please provide the figures for (a) personnel recruited as 16 and 17-year-olds leaving the Armed Forces before age 22 between 2006-2011; and (b) personnel recruited as 16 and 17-year-olds requesting discharge before age 22 between 2006-11. If possible, provide reasons for refusal in cases where discharge was requested and refused.

19. Please provide the number of servicemen and women under the age of 22 who have been (a) killed and (b) injured in Afghanistan and Iraq since 2002. If possible, please indicate the approximate proportion of the total of those killed and injured.

The UK has entered an interpretative declaration to the Optional Protocol, reserving the right to deploy people aged 16 and 17 in hostilities where removing them from their units would be impractical or could compromise operational effectiveness. The UN Committee on the Rights of the Child has called for the declaration to be amended. In 2007, then Minister for the Armed Forces, Adam Ingram MP, explained that although measures were taken within the UK to ensure that 16 and 17-year-olds were not deployed to active hostilities, that 16-17-year-olds had been deployed in 15 cases between 2003-05.[85]

20. Please explain what mechanisms currently exist to track 16 and 17 year old Armed Forces personnel and to prevent their deployment to participate in hostilities.

21. Please provide details of any personnel aged 16 and 17 deployed into hostilities between 2005-11, including (a) the circumstances in which they were deployed; (b) the duration of their deployment and (c) the reasons for their deployment, including any justification and supporting evidence related to operational effectiveness.

(g) UN Convention on the Rights of Persons with Disabilities: Reservation and Service in the Armed Forces

All service in the Armed Forces is exempt from the application of the Equality Act 2010, in so far as that Act protects against discrimination on the grounds of disability in relation to work.[86] The UK has also entered a reservation to the UN Convention on the Rights of Persons with Disabilities in order to preserve this exemption. Our predecessor Committee concluded that neither the exemption nor the reservation was necessary and both undermined the protection of people with disabilities from unjustified discrimination. In its Report on the UNCRPD, our predecessor Committee concluded that neither the exemption nor the reservation was necessary and both undermined the protection of people with disabilities from unjustified discrimination. In its Report on the UNCRPD, our predecessor Committee concluded that the exemption was unnecessary and the reservation was likely to be incompatible with the object and purpose of the Convention.[87] In its Report on the Equality Bill, our predecessor Committee confirmed its view that a blanket exemption was inappropriate and called for a review within 6 months of Royal Assent.[88]

22. I would be grateful if you could explain the Government's position on the continuing justification for the exemption for service in the armed forces from (a) the full application of the disability discrimination provisions in the Equality Act 2010 and (b) the UN Convention on the Rights of Persons with Disabilities.

23. Please also provide figures for the retention of officers and men who become disabled while in service during the last 3 years (2008-10), including as a percentage of the total number of persons who became disabled during that period while in service, including service in the reserved forces.

24. Please provide further information on Armed Forces' policies on the treatment of persons who become disabled while on service, including service in the reserved forces.

I would be grateful for a response by 23 February 2011. I would be grateful if you could provide a copy of your response in Word format, to assist with publication.

8 February 2011

76 [2010] EWHC 3304. Back

77 Clause 7, substituting a new s. 83 of the Armed Forces Act 2006. Back

78 New s. 83(1) Armed Forces Act 2006. Back

79 New s. 83(5) Armed Forces Act 2006. Under new s. 83(6), if the warrant authorises multiple entries, "the number of entries authorised may be unlimited". Back

80 EN para 180. Back

81 Fourth Report 2004-05, Scrutiny: First Report, HL Paper 26, HC 224. Back

82 Ibid at para 1.91. Back

83 Ibid at paras 1.95-1.96 and Eighth Report of 2004-05, Scrutiny : Fourth Progress Report, HL Paper 60, HC 388, paras 2.29-2.38. Back

84 Twenty-fifth Report of Session 2008-09, Children's Rights, HL Paper 157, HC 338, paras 139-143. Back

85 HC Deb, 1 Feb 2007, c 508W Back

86 Schedule 9(4) Back