4. Letter to the Committee Chair, from
Rt Hon Andrew Robathan MP, Minister of State for Defence Personnel,
Welfare and Veterans, Ministry of Defence, 28 February 2011
Thank you for your letter of 8 February to Liam Fox
seeking further information on specific issues arising in connection
with the Armed Forces Bill. I am replying as the Minister responsible
for the legislation.
The answers set out below follow the sequence of
questions in your letter and are numbered accordingly. I have
included the text of your original questions for ease of reference.
INDEPENDENCE OF SERVICE POLICE INVESTIGATIONS
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.
1.1 The starting point of the Department's consideration
of the issue raised in question 1 is that it is legally appropriate,
and essential to the practical, day-to-day maintenance of discipline
and so for the maintenance of operational effectiveness, for commanding
officers to have a disciplinary role. The CO's summary jurisdiction
was held in the case of Baines (2005) to be compliant for the
purposes of Article 6.[89]
Under the Armed Forces Act 2006 the criminal offences that a CO
may charge and try are very limited. They are listed in Parts
1 and 2 of Schedule 1 to the 2006 Act. Of these, any offence
listed in Part 2 may only be tried by a CO, if either the CO is
of at least the high rank of major general (or the equivalent
in the other two Services), or he has the permission of higher
authority in his chain of command.
1.2 This role of the CO reflects the fact that there
are simpler and less serious examples of some offences, such as
lesser disciplinary offences and even minor assaults occasioning
actual bodily harm or minor offences of dishonesty, such as sometimes
occur between members of the Armed Forces and even between Service
personnel and members of the public, which may properly be dealt
with by a CO, and perhaps without the bringing of a criminal charge.
So it is the Ministry's view that there is a range of minor cases
in which the CO has a legitimate discretion. In a range of these
cases, it will still be necessary for him to take legal advice
(most obviously as to any criminal charge). Then there are those
cases, referred to by the Court (especially in paragraph 65 of
its judgment), in which it will be exceptional for the CO (and
only with appropriate advice) to decide not to charge. Within
that group the Court referred to cases of violence or abuse against
persons in service custody, in relation to which the guidance
to the CO is even tighter.
1.3 The Court in its judgment in Ali Zaki Mousa
considered whether the safeguards in place were adequate to ensure
that those cases which should be referred to the Director of Service
Prosecutions would indeed be referred. Without attempting to
set out the whole system of safeguards referred to in the Court's
judgment, it may be helpful to mention here:
a) the CO's duty (under section 115(4) of the
2006 Act) to ensure that any allegation which would indicate to
a reasonable person that any service offence (disciplinary or
criminal) may have been committed is investigated appropriately
or known to the Service police (so that they may take the initiative
as to investigation); and
b) the CO's duty to ensure that the Service police
are aware of any evidence of a possible Schedule 2 offences or
of any "prescribed circumstance".[90]
The Court recognised that there were some lower level
cases which could still raise Article 3 issues. As to these,
the Court considered[91]
that the guidance given as to taking legal advice, and the further
guidance given about cases of violence or abuse against persons
who are not members of the United Kingdom's Armed Forces or against
a person held in any form of service custody, was sufficient.
1.4 Given the issues considered at First Instance
in Ali Zaki Mousa, it seems to the Department very likely
that the appropriateness of our provisions will be considered
by the Court of Appeal, on appeal in that case.
2. Can serving Armed Forces personnel investigate
cases where systemic failings are alleged, without endangering
the perceived independence of those inquiries?
2.1 In the view of the Ministry of Defence, and subject
of course to the results of the forthcoming appeal, there is nothing
in the Court's judgment in Ali Zaki Mousa to suggest that
service personnel cannot investigate evidence of criminal or disciplinary
offences without prejudicing consideration of whether the evidence
indicates that there may be wider, systemic issues which need
consideration. The Court made it clear that "article 3 imposes
requirements of promptness and reasonable expedition in the discharge
of the state's investigative obligation".[92]
The Court also stated that "If delay were liable to jeopardise
the effectiveness of any investigation of systemic issues that
might ultimately be called for, then that would be a powerful
factor against deferral" [of a decision whether to hold an
immediate public inquiry]. But the Court then considered whether,
in the circumstances of the case, delay might frustrate a wider
inquiry; the Court was "not persuaded […] that that
is a real risk in this case".[93]
Further, the Court consider that there were "a number of
good reasons for waiting" [before deciding whether to hold
an inquiry into systemic issues]. These good reasons included:
a) that "individual allegations may be
found to lack all credibility or substance, with the result that
any systemic issues depending upon them will fall away";
and
b) some systemic issues may themselves be investigated
in practice as part and parcel of the circumstances of the individual
allegations".[94]
2.2 These statements suggest to the Ministry that
the Court concluded that investigations by Armed Forces personnel
would not prejudice the independence of any subsequent wider investigation
of systemic issues, and that such investigations could appropriately
cover systemic issues.
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?
3.1 The approach adopted in the Bill, of focussing
specifically on the "independence and effectiveness"
of Service police investigations does derive in part from the
requirements of Articles 2 and 3. In particular, the MOD had
in mind that:
a) the duty to investigate allegations is implied
in relation to those Articles to ensure the effective protection
of the rights specified in the Articles; it is therefore linked
to the requirement in Article 13 that there be an "effective"
remedy for breach;
b) while promptness is often specifically referred
to by the Courts, it also derives from the requirement for an
"effective" remedy, and the MOD considers that reference
to the effectiveness of Service police investigations will include
the promptness with which the Service police carry them out; as
quoted above in paragraph 2.1 of this memorandum, the Court in
Ali Zaki Mousa linked promptness directly to effectiveness;
as in the statements "If delay were liable to jeopardise
the effectiveness of any investigation [...] that would be a powerful
factor against deferral" and again "There is still a
question, of course, whether [...] delay might in practice frustrate
an inquiry and thereby give rise to a breach of the duty to carry
out an effective investigation";
c) as a matter of common usage the MOD considers
that the "effectiveness" of investigations would clearly
include promptness.
POWERS OF ENTRY AND SEARCH
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 inadequate.
4.1 Statistics on the use of existing powers of entry
are not readily available. There is no central database recording
the application for, issue or use of search warrants. In the
absence of such statistics, the requirement for the extension
of the power is perhaps best illustrated by example.
4.2 The current law requires the Service police to
apply for separate warrants in relation to separate sets of premises.
In a recent case, seven soldiers were allegedly involved in the
theft and supply of a substantial quantity of military firearms
and explosives. It was possible that the items were being moved
from one location to another, possibly between the residences
of the suspects, and several of the suspects had more than one
place of residence. When the senior investigating officer planned
the searches he had to make applications for separate search warrants
in relation to each individual set of premises. Had a search
indicated that the stolen items might be at other premises, he
would have been required to apply for a new warrant. The purpose
of the search might have been frustrated or seriously prejudiced
had such a situation occurred. Under the provisions requested
a search warrant could apply to more than one set of premises
and to unspecified premises, and allow entry on more than one
occasion.
4.3 It is now not uncommon for Service personnel
to have more than one residence, and for these residences to be
in different countries.[95]
Moreover, the Service police consider that there is evidence that
some Service personnel are now committing more crimes involving
difficult questions of evidence. These have included cases of
making indecent images of children and child grooming offences.
Investigations of this nature tend to be fast-moving and, while
there is no known case to date which has been lost because of
a lack of the type of warrants provided for in clause 7, this
risk must be greater because of a lack of powers which are available
to the Home Office police. Meanwhile, if Service police are aware
that Armed Forces Act 2006 search warrants are inadequate to the
purpose of search, Service police investigators do enlist the
support of civil police, who already have access to these types
of warrant; but this requires close liaison and is only possible
in the UK.
5. Why were these powers not extended in the Armed
Forces Act 2006, which post-dated the 2005 extension of the general
entry and search power in section 8 PACE?
5.1 The relevant amendments to the Police and Criminal
Evidence Act 1984 were made by the Serious Organised Crime and
Police Act 2005. They came into effect on the very end of 2005,
and represented a significant change in Home Office police force
powers. The MOD decided to wait to see:
a) whether they gave rise to difficulties; and
b) whether a case for an extension to the Service
police was justified.
5.2 This decision was taken in the light of the fact
that the equivalent Service police powers to obtain search warrants
were limited to "relevant residential premises" (broadly
speaking the accommodation and homes of those subject to military
jurisdiction). There was no intention to widen the scope of premises
searchable.[96] During
2005 it was still the case that the accommodation and homes of
service personnel could usually be easily identified, and the
type of offence generally being investigated did not require the
search of a number of premises. Since then the pattern of the
accommodation of Service personnel has changed, as has the range
of offences. Service accommodation is more frequently "off
base" and more Service personnel have their own homes; and
the Service police are aware of most offences, such as weapon
and drugs smuggling, which may require use of the wider powers
provided for in the Bill.
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?
6.1 A PACE Review was commenced in March 2007, and
a report was published in March 2010. The Memorandum to the Home
Affairs Committee Post-Legislative Assessment Organised Crime
and Police Act 2005 Cm 7974 http://www.official-documents.gov.uk/document/cm79/7974/7974.pdf
includes detailed references to the PACE review. Paragraphs 32
and 36, and Annex B to that Memorandum refer. Access to the PACE
Review (Commenced March 2007), the Government's Response and the
Final Published Outcomes (4 March 2010) are available at http://webarchive.nationalarchives.gov.uk/20100413151426/http://police.homeoffice.gov.uk/operational-policing/powers-pace-codes/PACE-Review/index.html
6.2 Chapter 5 of the Final Published Outcomes highlighted
the requirement to consider ways to raise police accountability
in relation to search warrants generally. In addition, it was
recommended that procedures be put in place to enable endorsed
redacted copies of all premises and multiple premises warrants
to be given to the owner or occupier. These matters will be taken
into consideration when detailed procedures for the application
for and execution of these warrants, including safeguards, are
made by amendment to or reissue of the Armed Forces (Powers of
Stop and Search, Search, Seizure and Retention) Order 2009, SI
2009/2056.
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.
7.1 Part 3 of the Protection of Freedoms Bill deals
with the protection of property from disproportionate enforcement
action. Chapter 1 of that Part deals with repealing, adding safeguards
for, and rewriting powers of entry. It includes a requirement
to review all existing powers of entry. The Government is committed
to limiting rights of entry, and the Ministry of Defence has already
conducted an initial review of all existing rights of entry with
a view to identifying any that might be repealed. The existing
Service police powers of entry are all considered essential, but
there may be room for increasing the safeguards when those powers
are reviewed under the Freedom Bill. Meanwhile, the Ministry
of Defence is very conscious of the requirement not to create
unnecessary new powers of entry.
7.2 The Government's policy recognises the requirement
to ensure that those charged with the investigation of crime should
have sufficient powers to do so effectively, subject to appropriate
safeguards. Clause 7 of the Bill substitutes a new section 83
governing the power of Service police to apply to a judge advocate
for a warrant to enter and search. The new provisions will not
create new grounds of entry. As explained in the answer to question
5 above, the new provisions only extend the existing provisions
in line with the wider powers of the Home Office police forces,
so as to allow the judge advocate to grant entry on more than
one occasion and to grant entry to unspecified premises of a person.
But the power of the Service police will remain much narrower
than that of the Home Offices forces, because the Service police
power will only be available in relation to "relevant residential
premises", broadly speaking residential premises of persons
subject to the Armed Forces Act 2006. Limiting the availability
of the warrants in this way ensures compatibility with the Government's
policy that only such powers as are absolutely necessary should
be retained. The circumstances which have led to a decision to
seek this power for the Service police are set out in paragraph
5.2 above.
7.3 The Joint Committee may also be interested
in clause 8 of the Bill. This clause makes provision extending
the powers of the Service police to seek though a judge advocate
access to "excluded material" and "special procedure
material" (such as bank records or social workers' files).
The provision it replaces is limited to material on relevant
residential premises; the new provision is not. Its extent and
purpose are very closely based on powers of the Home Office forces;
but it is subject to a major restriction. The Home Office forces
are able to enforce an order to produce material by a warrant
to enter and search. The Service police will not have such a
power. Failure to comply with a production order will be dealt
with as a contempt of court.
SERVICE SEXUAL OFFENCES PREVENTION ORDERS ("SOPOS")
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?
8.1 The criminal standard of proof will apply where
the Court Martial has to decide facts which engage a standard.
This will be the case where the Court Martial considers an application
for the renewal or variation of a Service SOPO,[97]
because the court will be required to be satisfied that the power
needs to be exercised to protect persons from serious sexual harm.
This will involve assessing such matters as the defendant's conduct
since the original order was made. This follows from the decisions
in McCann v Crown Court at Manchester [2002] UKHL and more
recently in R (on the application of Cleveland Police) v Haggas
[2009] EWHC 323 that, because of the seriousness of the matters
to be decided and the serious consequences for the defendant,
the higher criminal standard must apply to the determination of
facts when the courts make civil orders of this type.
8.2 The criminal standard of proof will not apply
to the making of extended prohibitions orders.[98]
Such orders are essentially only extensions of existing SOPOs.
The relevant questions as to the defendant's contact and the
danger to members of the public in the UK will have been dealt
with (to the criminal standard) when the SOPOs was made. For
the extended prohibitions order the Court Martial will only have
to be satisfied as to the existence of the SOPO and that there
are members of the Service community outside the UK who would
be protected by the SOPO if they were in the UK.
8.3 As extended prohibitions orders are effectively
mirror orders, they stand and fall with the SOPOs they extend,
and cannot be varied or revoked. New section 232E(5)(b) provides
that if a SOPO is varied, renewed or discharged, a related extended
prohibitions order no longer has effect.
9. If so, please explain why the Government considers
it not necessary to make this clear on the face of the Bill?
9.1 The standard of proof is not set out in the legislation
relating to similar civil orders such as Anti-Social Behaviour
Orders under the Crime and Disorder Act 1998; nor is it mentioned
in section 108 of the Sexual Offences Act 2003, on which our provisions
for variation and revocation of Service SOPOs are based. As stated
above, the courts have addressed the issue of the standard of
proof and it is now clear that the criminal standard applies to
the determination of relevant facts in all civil orders of this
type. The MOD does not therefore consider that it would be helpful
to mention the standard of proof on the face of the Bill.
SERVICE COMPLAINTS PANELS
10. The Defence Council is not an independent
body for the purposes 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.
(a) Determination by the Defence Council of the
cases where a more independent process is necessary
10.1 The MOD considers that it is important to bear
in mind that the powers of the Defence Council to provide for
an independent element in a panel are not limited in the Bill
to where a decision must be taken by an independent tribunal in
accordance with Article 6. The Armed Forces Act 2006 already
includes provision allowing the Secretary of State to require
an independent element in a complaint panel. This was not included
to meet the requirements of Article 6 but because of a recognition
that a number of factors may suggest the inclusion of an independent
element in the complaint process. Clause 20(5) of the Bill gives
the Defence Council power to include an independent element in
any Service complaint panel.
10.2 It is true that a very important purpose of
the new provision is to allow the Defence Council to respond to
developing case-law as to when a panel must be independent and
when particular decisions must be made independently. Where the
Defence Council is considering whether, in accordance with Article
6, a decision by an independent panel or by independent members
is required, the Defence Council's discretion itself will not
be a broad one. This is because a failure to appoint, where required,
an independent panel or independent members to decide a complaint
or a particular issue relating to a complaint will mean that the
decision may be successfully challenged. A failure to take the
appropriate approach to deciding the question may also lead to
judicial review. Until the case-law on Crompton is sufficiently
developed to allow the legal requirements to be set out in subordinate
legislation, the Defence Council will have to consider complaints
on a case by case basis (or perhaps by reference to categories
of case) as to whether to appoint a panel of independent members.
That question will have to be decided by the application to the
issues in the case of the principles stated in Crompton.
Without doubt this will involve taking legal advice. The decision
will be made by reference to the issues raised and the MOD does
not foresee that it will require any preliminary decision on the
facts; accordingly the availability of judicial review of the
decision should be sufficient to ensure that the decision-making
process itself is compliant.
10.3 The powers of the Defence Council to decide
on the membership of panels and whether to appoint panels are
of course subject to the power to lay down requirements as to
these matters in subordinate legislation.
(b) What any more independent process should look
like?
10.4 As explained at 10.1 above, the Bill will give
the Defence Council a wide power to include an independent element,
even where not required by Article 6. Where Article 6 requires
an independent and impartial tribunal, the MOD considers (on the
basis of Crompton) that a requirement for all the members
of a panel to be independent will be sufficient. It may well
be that the case-law will simply require a wholly-independent
panel, based on an overall characterisation of the case, where
independence is required. But the MOD bears in mind that:
a) the facts and issues in redress cases are
sometimes complex;
b) there is a possibility that the case-law will
recognise that certain matters within one redress case may appropriately
be decided by the Defence Council or by a panel including members
who are not independent, while others must be decided by an independent
panel or the independent members of a panel.
The powers provided in the Bill are intended to allow
an adequate response to the full range of approaches which case-law
may recognise as appropriate. They will also allow the Secretary
of State to take a cautious view, and to provide for an independent
decision on certain matters, even where the case-law does not
characterise (or does not clearly characterise) a category of
complaint as requiring independence.
11. Has the Government considered whether such
determinations might be likely to lead to further challenges to
this discretionary mechanism under Article 6 ECHR?
11.1 The possibility of challenge to the process
by which the Defence Council makes decisions on appointing a panel
has been considered by the MOD. As stated in the final sentence
of paragraph 10.2 above, the possibility of judicial review of
that process is seen as one of the safeguards justifying that
approach (while recognising the benefit of having clear, general
rules once the case-law on Crompton is developed). The
possibility of an ECHR challenge to (rather than a judicial review
of) that process before the complaint itself is decided is considered
less likely. It is thought more likely that a challenge on that
basis would be made after the final outcome of the complaint process.
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.
12.1 The MOD has considered the existing case-law
and considers that there are a number of aspects of the decisions
in Crompton and in Eskelinen[99]
which are so uncertain as to create, on the present development
of the case-law, a high risk of error by the MOD if it were to
attempt at this stage to give general guidance which is more than
provisional. Some of these issues are likely to be considered
in a Ministry of Defence case which is currently before the High
Court.[100] The areas
of uncertainty include:
a) what issues which may be the subject of a
complaint relate to "civil rights" within the meaning
of Article 6;
b) what sort of complaints call into question
the "special bond of trust and loyalty", so as to justify
an exclusion of access to an independent and impartial tribunal;[101]
c) in respect of what sort of disputes can there
be a "compelling reason" for the decision to be by the
Defence Council.[102]
Question 12 continues: 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?
The MOD considers that, for any matter requiring
an independent decision for the purposes of Article 6, it would
be insufficient for the decision-makers to include only a minority
of independent members.
b. Please provide examples of cases where the
functions of a complaints panel could be split and satisfy the
requirements of Article 6 ECHR.
The power has been put in place because of the possibility
of case-law developing on these lines. An example of the sort
of situation which might lead to such a development is given below
(but is necessarily based on speculation, given the current state
of the case-law):
A soldier, X, is discharged from the service on the
ground that he failed a drugs test. X seeks redress on the grounds
that: (a) he had not taken drugs and the test was improperly carried
out; there is a dispute of fact about what actually happened;
(b) even if he had taken drugs, there were mitigating circumstances
which as a matter of policy the Army had taken into account in
comparable cases; the Board should at least consider these circumstances.
In such a case (a) might be considered a key question of fact,
requiring an independent finding. But if the finding is against
X, there will still be the issue of policy, (b), as to what should
be done.[103]
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.
13.1The MOD considers that the approach taken in
the Bill allows it to develop practice and regulations with the
benefit of clarifying court decisions without having to rely on
emergency legislation. The Secretary of State's power will allow
him to lay down rules (and revise them as the law develops) so
that the redress system is operated compatibly. Having legislation
which can be applied compatibly is considered by the MOD to be
preferable to waiting for a decision that the legislation is incompatible
and then amending it under emergency powers. This is particularly
important, given the possibility that:
a) no one case will necessarily give a comprehensive
answer allowing all issues to be resolved in a single piece of
remedial legislation; and
b) the law in this area is likely to develop,
as it has previously in the cases of Pellegrin (1999), Eskelinen
and Crompton.
CIVILIANS SUBJECT TO SERVICE DISCIPLINE
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"
14.1 The Court's judgment in Martin[104]
was based fundamentally on Article 6: the requirement of an independent
and impartial trial of criminal liability. The Court stated[105]
that the question to be answered was whether the applicant's "doubts
about the independence and impartiality of a particular court-martial
can be considered to be objectively justified and, in particular,
whether there were sufficient guarantees to exclude any such legitimate
doubts".
14.2 The Court went on to state that the trial of
civilians by military courts "should be subjected to particularly
careful scrutiny, since only in very exceptional circumstances
could the determination of criminal charges against civilians
in such courts be held to be compatible with Article 6".[106]
14.3 The approach of the Government in response has
been to remove from courts dealing with civilians subject to service
jurisdiction the characteristics which it is considered might
lead to those courts being characterised as "military courts"
and to ensure that there are in place adequate safeguards against
any legitimate doubt as the courts' independence and impartiality.
In particular:
a) the courts are composed solely of civilians:
a civilian judge advocate, appointed by the Lord Chancellor, and
in the Court Martial, civilian lay members appointed by a civilian
court administration officer;
b) appeal from the Court Martial is to the Court
Martial Appeal Court, which is composed entirely of civilian judges
of the Court of Appeal (Criminal);
c) legal aid is available and there is full
access to civilian defence lawyers;
d) there is no liability to the disciplinary
offences applicable to Service personnel, such as desertion, mutiny,
disobedience to lawful orders. A few special Service offences
apply, but these are closely akin to criminal offences, for example
looting, obstructing the Service police and breach of standing
orders (which cover traffic and other regulatory provisions for
bases).
14.4 The aim has been to make the courts which deal
with civilians subject to service jurisdiction essentially civilian,
except to the extent that some military connection is unavoidable,
given that the jurisdiction arises in relation to civilians forming
part of the Service community outside the United Kingdom.
SERVICE IN THE ARMED FORCES UNDER 18
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?
15.1 There are no plans to review the operation of
the interpretative declaration on article 1 of the Optional Protocol
to the UN Convention on the Rights of the Child on the Involvement
of Children in Armed Conflict. We recognise the importance of
providing special treatment for young people under the age of
18 serving in the Armed Forces and Defence policy is that no Service
personnel under the age of 18 is knowingly deployed on any operation,
outside of the UK, which would result in them becoming engaged
in, or exposed, to hostilities. Administrative guidelines and
procedures are in place to ensure that under-18s are withdrawn
from their units before they are deployed on operations.
15.2 We have no plans to amend or withdraw our interpretative
declaration with regard to article 3 to the Optional Protocol
on the Involvement of Children in Armed Conflict. The UK Armed
Forces will continue to recruit from age 16 and there are no plans
to change this policy.
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).
16.1 The information is as follows:
a) The number of 16-year-olds currently serving
in the Armed Forces is 580; the number of 17-year-olds is 1,970.
b) The numbers of 16 and 17-year-olds recruited
in each Service are:
Royal Navy
Overall figures for under-18s recruited:
2008 805
2009 696
2010 360
Army (recruiting years
1 April-31 March)
2007-08 (age 16) 2191 (plus 3 TA); (age 17) 2319
(plus 360 TA)
2008-09 (age 16) 2157 (plus 2 TA); (age 17) 2127
(plus 518 TA)
2009-10 (age 16) 1864 (plus 3 TA); (age 17) 1678
(plus 398 TA)
2010-11 (age 16) 1342 (0 TA); (age 17) 962 (plus
191 TA)
RAF
Transfer of databases means that the statistics cannot
be provided immediately. If desired by the Committee they can
be made available next week.
17. Please also confirm the current arrangements
for personnel recruited as 16 and 17-year-olds who wish to be
discharged before age 22. In particular, please explain any discretionary
arrangements which apply to allow young people to leave the Armed
Forces before they reach 22.
17.1 Recruits who are under 18 years of age at the
time of enlistment and who wish to end their service have a right
to leave by giving at least 14 days' notice to their commanding
officer. Such notice can take effect when the recruit has completed
28 days' service and is within 6 months of enlistment. Additionally,
recruits who before their eighteenth birthday have made their
unhappiness with military life known to their CO can request permission
to leave up to three months after they reach age 18, and in those
cases the policy is to treat all these cases with great sympathy.
This does not give a right to discharge. It is considered that
extending a right to discharge would be likely to reduce the Services'
chance to solve the problems that the young recruit may be facing.
After the age of 18 years and 3 months, the usual procedures
for leaving the relevant Service apply.
18. Please provide the figures for (a) personnel
recruited as 16 and 17-year-olds leaving the Armed Forces before
age 22 between 2006-11; 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.
18.1The information is as follows:
a) Personnel recruited under age 18 and leaving
before 22 between 2006 and 2011 is 12,290.
b) On the number of person's requesting discharge,
figures are not held for discharges requested up to the age of
22.
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.
19.1The information is as follows:
a) Between 1 January 2002 and 21 February 2011
(the latest date for which death information is available) there
were 535 UK Service personnel who died in Afghanistan or Iraq.
Of these 125 (23%) were under the age of 22.
b) Between 1 January 2002 and 31 January 2011
(the latest date for which casualty information is available)
there were 3,217 UK Service personnel reported with an injury
in Afghanistan and Iraq by the initial Notification of Casualty
(NOTICAS) system. Of these 891 (28%) were under the age of 22.
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.
20.1 Service personnel under the age of 18 are not
to deploy to any operations outside of the United Kingdom, except
where the operation does not involve personnel becoming engaged
in, or exposed to, hostilities. Personnel under 18 are not to
be deployed on UN peacekeeping operations in line with UN policy.
No personnel under 18 are to carry out operational patrols in
Northern Ireland, although 17-year-olds can be based in the Province.
20.2 Orders and regulations explicitly state that
no one under the age of 18 years is to deploy. Local Commanders
will take appropriate precautions to ensure that this is the case.
In addition, passport checks are carried out by movements staff
at Brize Norton to minimise any potential for an under 18 deploying
to an operational theatre.
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.
21.1 There were no 16 year old Service personnel
deployed to Afghanistan or Iraq between April 2007 and April 2010.
Five 17-year-old Service personnel have been deployed between
April 2007 and April 2010; three to Afghanistan and two to Iraq.
Of these five Service personnel, two were within two days of
their 18th birthday, and two were identified on their arrival
in theatre and returned to UK; they redeployed after their 18th
birthday. The fifth individual was not identified until after
turning 18.
21.2 Data on personnel deployed to Afghanistan or
Iraq prior to April 2007 can only be derived from departmental
legacy systems. As such, determining the ages of personnel at
the time of deployment prior to April 2007 is not possible.
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.
22.1 The continuing need for the Armed Forces' exemption
from domestic disability legislation was reviewed during the development
of the Equality Act 2010 and it was concluded that the exemption
was still required. The rationale for the exemption and the reservation
to the UN Convention is based on the need to maintain the operational
effectiveness of the Armed Forces. This is particularly important
in the context of the Armed Forces' current operational commitments.
I do not expect that this will change, but we will keep the continuing
need for a reservation under periodic review.
22.2 However, not all forms of disability are incompatible
with service in the Armed Forces. The Armed Forces demonstrate
a willingness to follow the spirit of disability legislation by
recruiting people who have some degree of impairment where this
does not compromise operational effectiveness. Such impairments
include myopia, facial disfigurement, ligament repairs and mild
dyslexia.
23. Please also provide figures for the retention
of officers and men who become disabled while in service during
the past 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 reserve forces.
23.1 It is not possible to identify those Service
personnel who have been disabled whilst in Service, because disability
for the purposes of domestic legislation is very wide. However,
it is possible to identify those Service personnel who have:
a) been seriously injured or become ill on operations;
and
b) have been subsequently categorised by medical
staff as being Medically Non Deployable (MND) or Medically Limited
Deployable (MLD).
23.2 Between 1 January 2008 and 31 December 2010,
there were 407 UK Service personnel listed as seriously injured
or ill whilst deployed on operations in Iraq or Afghanistan.
23.3 Of the 407 personnel, 387 were still in service
as at 1 January 2011. Of these:
43 (11%) were categorised as permanently MND;
229 (59%) were categorised as temporarily MND;
2 (<1%) were categorised as MND (not defined as
temporary or permanent);
13 (3%) were categorised as permanently MLD;
23 (6%) were categorised as temporarily MLD;
41 (11%) were categorised as medically fully deployable;
and
36 (9%) are yet to have a medical board.
23.4 There were accordingly 20 UK Service personnel
seriously injured or ill whilst deployed on operations in Iraq
or Afghanistan between 2008 and 2010 who were no longer serving
in the Armed Forces as at 1 January 2011. Of these, four were
medically discharged.
23.5 The figures provided include regular and reserve
personnel.
24. Please provide further information on Armed
Forces' policies on the treatment of persons who become disabled
while on service, including service in the reserve forces.
24. There is a clear moral obligation for the Services
to look after personnel who have been injured in the course of
their duties and recovery and rehabilitation can often best be
facilitated within a military environment, particularly as the
individuals concerned often have very relevant experience which
can be applied to the benefit of all serving. However, it remains
the Armed Forces' overarching policy that they will discharge
all those medically unfit for military service.
24.2 In the case of members of the regular Armed
Forces, a number of personnel are retained who, having been trained
and having gained experience, fall below Service medical standards
but who are able to fulfil a limited range of military duties.
They are generally not referred to as disabled, but as "Medically
Downgraded". It is not possible to retain everyone who becomes
disabled. Cases are considered on an individual basis, taking
account of manpower requirements.
24.3 Wounded, injured and sick Service personnel
are provided with comprehensive support to maximise the chances
of a full recovery. All Armed Forces' personnel are supported
by dedicated and comprehensive medical services, including mental
health support. The Ministry has made changes to both the policy
and provision of medical and welfare support for injured Service
personnel due to operational circumstances and their changing
needs.
24.4 The Armed Forces Compensation Scheme (AFCS)
provides compensation for injuries, illness and death arising
from service since April 2005. (War pensions are paid to veterans
with injuries caused by their service to that date). The AFCS
covers all serving and ex-Service personnel and provides an immediately-available
tax-free lump sum for pain and suffering, the size of which reflects
the severity of the injury or illness sustained. There are 15
tariff levels with associated lump sum awards which currently
range from £1,155 to £575,000.
24.5 The AFCS also provides an income stream known
as the Guaranteed Income Payment, which is a tax-free, index-linked
monthly payment from discharge until death. This is in addition
to the lump sum and is an enhancement to an individual's ill-health
pension, paid to recognise the injury or illness sustained as
a result of service.
24.6 In the case of mobilised reserves, the Services
would not seek to retain a reservist who was very seriously injured
and unable to meet the required medical fitness standard. Reservists
seriously injured while serving are eligible for the full range
of Defence Medical Services healthcare on the same basis as regulars
and are covered by the AFCS.
I hope the Committee members find this information
helpful.
28 February 2011
89 Further reference may be made to paragraphs 12 and
13 of the Ministry's first memorandum to the Joint Committee. Back
90
As to which reference is made to sections 113 and 114 of the 2006
Act and to the Armed forces (Part 5 of the Armed Forces Act 2006)
regulations 2009, S.I. 2009/2055. Back
91
Paragraph 65. Back
92
Paragraph 120 of the judgment. Back
93
Paragraph 122 of the judgment. Back
94
Paragraph 124 of the judgment. Back
95
Further reference I made to paragraph 5.2 below. Back
96
This remains the case; section 83 of the Armed Forces Act 2006,
as proposed to be amended by the Bill will remain restricted to
"relevant residential premises". Back
97
Section 232C of the Armed Forces Act 2006, added by clause 17
of the Bill. Back
98
Under section 232E of the Armed Forces Act 2006, added by clause
17. Back
99
Reference is made to paragraph 32ff in the MOD's first memorandum
to the Joint Committee. Back
100
Crosbie v Secretary of State (Claim no. CO/6534/2009). Back
101
Reference is made to paragraph 62 of the judgment in Eskelinen. Back
102
Reference is made to paragraph 77 of the judgment in Crompton. Back
103
The Ministry acknowledges that the example is inevitably artificial,
but hopes that it will still be helpful. Back
104
Judgment 24 Oct 2006: no. 40426/98. Back
105
Paragraph 43 of the judgment Back
106
Paragraph 44 of the judgment. Back
| 
