House of Commons - Explanatory Note
ARMED FORCES BILL - continued          House of Commons

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Clauses 31 and 32

104.     The Ministry of Defence Police (MDP) is a civilian police force exercising full constabulary powers within its jurisdiction. This jurisdiction is defined in the Ministry of Defence Police Act 1987, which is the principal legislation governing the force, its powers and procedures. The limitations on the jurisdiction of the force have been reviewed in the light of experience, in particular the changed deployment pattern of the MDP. For instance, the force makes increasing use of mobile patrols, involving movement between defence establishments and bringing MDP officers into greater contact with the public than previously. As a result, certain extensions to the jurisdiction of the MDP are included in the Bill to give them appropriate legal authority to deal with the range of circumstances in which their assistance may reasonably be called for. The Bill also confers powers to enable the MDP's disciplinary procedures to be aligned with those of Home Department police forces.

Clause 31: Extension of jurisdiction

105. The jurisdiction of the MDP is governed by section 2 of the Ministry of Defence Police Act 1987. The overall effect is to give the force a jurisdiction in relation to defence land, property and personnel within the United Kingdom and its territorial waters. The MDP is also able to operate on land in the vicinity of defence land where a constable of a local force has asked for assistance.

106. The Bill extends the MDP's jurisdiction, by amending section 2 of the 1987 Act.

107. Section 2(2) of the 1987 Act deals with the places where the MDP have jurisdiction. Clause 31(2) amends this, so that the existing power in relation to acting on land in the vicinity of defence land in response to specific requests from a member of a local force is replaced by a power to act on such land in furtherance of a request, agreed to by the MDP, for policing assistance from a chief officer of a local force. It also applies the new provision to such requests from the British Transport Police or the United Kingdom Atomic Energy Authority Constabulary, where members of these two forces have constabulary powers. The aim is to allow standing arrangements to be agreed at a high level under which the MDP may take on the performance of agreed policing duties in areas close to defence land. The existing provisions also allow individual requests for help, usually made at a lower level. These are dealt with by a new provision in clause 31(4).

108. Section 2(3)(b) of the 1987 Act as it stands provides for the MDP to have an additional jurisdiction in relation to defence personnel. It applies anywhere in the United Kingdom in which the MDP do not have jurisdiction under section 2(2) of the 1987 Act. This jurisdiction is thought to be confined to the alleged commission of offences by defence personnel. Clause 31(3) extends the jurisdiction to offences against defence personnel, for example, an attempt to bribe defence personnel to disclose confidential information.

109. Clause 31(4) confers additional powers on the MDP in any case where a request is received from a constable of another force. The limitation described in paragraph 107, which restricts action to the vicinity of defence land, does not apply.

110. There are occasions on which MDP officers face emergencies where their normal jurisdiction would not apply. It may not be possible for the MDP officer to obtain timely authority from the local police force to deal with the incident. Accordingly, clause 31(4) also empowers an MDP officer in uniform (or having proof of being an MDP officer) to act without a request for assistance from a Home Department or other police officer, in specified circumstances, if he reasonably believes that waiting for such a request would frustrate or jeopardise the purpose of his action. These circumstances are where the MDP officer has reasonable grounds for suspecting that there has been an offence involving the use or threat of violence against a person, or where he reasonably believes that action is necessary to save life or prevent or minimise personal injury.

Clause 32: Further amendments relating to Ministry of Defence Police

111. Clause 32 introduces Schedule 5, which deals with a number of matters relevant to the MDP, mainly by making amendments to the Ministry of Defence Police Act 1987.

112. Paragraph 1 relates to the new provisions on disciplinary procedures in the MDP. These are explained in paragraph 115 of these notes.

113. Paragraph 2 applies where another police force requires extra resources to meet a special burden. It inserts two new sections in the 1987 Act.

114. New section 2A enables such assistance to be given by the MDP, where requested by the chief police officers listed, to enable their force to meet any special demand on its resources. New section 2B deals with the position where MDP officers serve with other forces, either as a part of such assistance or under arrangements such as secondment. It provides that they come under the direction of the chief officer of the force with which they are serving for the time being and have full powers of a constable of that force (i.e. without the jurisdictional limits applying to MDP officers).

115. Paragraphs 1, 3 and 4 insert in the 1987 Act new provisions concerning disciplinary procedures for the MDP. At present, the Act (in section 1(4)) gives the Secretary of State power to dismiss a member of the MDP. He has no power to transfer to an outside body the function of deciding the imposition of penalties. In Home Department forces, on the other hand, a key element of the process of disciplinary cases, and of review and appeal, is that officers or other persons from outside the force concerned take such decisions. The intention is to enable these procedures to be brought as closely in line as possible.

116. Paragraph 1 extends the powers of the Ministry of Defence Police Committee (which is at present only advisory), so that it may be appointed to take certain decisions in the disciplinary process.

117. Paragraph 3 inserts a new section 3A in the 1987 Act, creating a power for the Secretary of State to make regulations establishing disciplinary procedures for the MDP. It specifies that the regulations may provide for decisions on these matters to be taken or reviewed by persons other than the Secretary of State or the chief constable or persons acting on their behalf, and for the appointment of such persons. This is to allow disciplinary decisions to be made by persons outside the Ministry of Defence and the MDP. The Bill does not prescribe what the procedures should be, so that they can be altered by statutory instrument as the need arises. The intention is to adopt procedures aligned with those of the Home Department forces, and then to keep track of changes in these procedures. Regulations under this clause will be made by statutory instrument subject to the negative resolution procedure

118. Paragraph 4 inserts a new section 4A in the 1987 Act, providing members of the MDP who have been subject to disciplinary proceedings and awarded one of the punishments listed in section 4A(1) with the right of appeal to a tribunal. This right may not be exercised if the officer has the prior right (as is the case with officers who are not senior officers) to seek review, unless and until the review confirms a punishment of dismissal, requirement to resign or reduction in rank. The new section empowers the Secretary of State to make by order provision for the composition and procedures of the appeals tribunal corresponding to the relevant enactments for Home Department police forces (subject to modifications). Section 4A(4) enables the appeals tribunal to substitute a less severe punishment than that originally awarded.

119. Paragraphs 5 and 6 amend the firearms legislation applicable in Great Britain and Northern Ireland respectively, so as to enable potential recruits to the MDP to use firearms without a certificate while they are being trained or assessed under MDP supervision. As part of their assessment process, potential recruits take a firearms aptitude test. This involves "possession" (in the sense used in the firearms legislation) of a firearm, which is generally unlawful without a firearms certificate.

Part V - Miscellaneous and general

Clauses 33 to 41

120. This part of the Bill contains miscellaneous provisions about the armed forces. It also contains general provisions governing matters such as the commencement and extent of the Bill.

Clause 33: Power to make provisions in consequence of enactments relating to criminal justice

121. This clause provides a general order-making power which would enable the Secretary of State to make for the armed forces provisions equivalent to those contained in any future civilian criminal justice legislation or any existing legislation that it amends.

122. The areas of criminal legislation which may be the subject of such equivalent provisions are identified in the clause. The power may be exercised so far as is desired, i.e. the entire civilian legislation does not have to be adopted. Modifications or any incidental, consequential or transitional provisions which the Secretary of State thinks fit may be made.

123. Any order under the power will be made by statutory instrument subject to the negative resolution procedure except in the case of an order which amends any primary legislation. In this case, orders will be subject to the affirmative procedure and must be approved by both Houses of Parliament before being made (Clause 37).

124. In general, the armed forces aim to keep their system of investigation, trial and punishment under Service law as consistent as possible with the corresponding procedures in the civilian system. At present, the principal means of amending Service law is in the five yearly Armed Forces Bills. This means that differences can exist for a considerable period before an opportunity to make the relevant amendments of Service law arises.

Clause 34: Powers to test for alcohol or drugs after a serious incident

125. The SDAs create offences of unfitness for duty because of drugs or alcohol. However, there is no power which allows the taking of a test to see if anyone is under the influence of drugs or alcohol, other than the provision for random drug testing introduced by the Armed Forces Act 1996. It is now considered that testing may be necessary after a serious incident to show whether the use of drugs or alcohol was a possible contributory factor to the incident. This clause introduces a power to order testing for drugs and alcohol following such an incident, coupled with an offence (in Schedule 6) of failing to provide a sample (normally of breath or urine) when requested to do so. This provision will apply to anyone subject to the SDAs working for or in connection with the armed forces, whether military or civilian. The clause also provides for officers to be designated by Defence Council regulations for the purpose of exercising the powers conferred by the clause.

126. The existing provisions which create an offence of refusal to take a test are amended (in Schedule 6) to clarify that they do not extend to testing for either alcohol or drugs in the circumstances now envisaged.

127. This clause applies where there has been an incident which, in the opinion of a designated officer, results in or creates a risk of death, serious injury or serious property damage. In a simple case where a member or members of only one unit could have been involved, the designated officer is likely to be their commanding officer and he may request anyone under his command whom he thinks may have caused or contributed to the incident, its consequences or the risk of such consequences, to give a sample for the purpose of testing for alcohol or drugs.

128. The position is more difficult where more than one unit, and perhaps more than one Service, may have been involved. An example would be a collision between two aircraft from different commands, or the crash of an RAF aircraft into a Royal Navy ship. The clause is intended to provide a framework for deciding who is to decide whether testing is needed and who is to decide which individuals should be asked to take a test. Under the clause where a designated officer decides that any persons to whom the clause applies may have contributed to the incident or its consequences, he may make a direction. This may direct the commanding officer of certain persons to request that they give samples or may direct a commanding officer to consider whether anyone within a defined group within his command should be tested. Thus, for example, a direction might be to test the pilot whose aircraft crashes, or to test anyone in the CO's command involved in air traffic control whom the CO considers might have contributed to the incident.

129. The clause allows the Defence Council to make regulations specifying who may be a designated officer in relation to a particular incident or category of incidents. These regulations would need to address the question of who, in a complex case, should take the key decisions on testing referred to above. Regulations under the clause may also specify how many samples may be requested, the procedure to be used and the qualifications of the persons taking the samples. The clause also specifies that the samples taken may not be used in evidence against anyone in any disciplinary proceedings. They may, however, be used to inform Service Boards of Inquiry (which are explained in more detail in paragraph 154).

130. The clause also introduces Schedule 6.

131. Paragraph 1 inserts new subsections in section 34A of the Army and Air Force Acts; section 34A creates an offence of failure to provide a sample. The purpose of these new subsections is to clarify the position in relation to the existing powers available under the random drug-testing programme, providing that the drug testing officer cannot be in the chain of command of the person being tested; that the power of random testing cannot be used where the new power arises (i.e. in relation to serious incidents); and that the results of any test are not used as evidence in any subsequent disciplinary action.

132. Paragraphs 2 and 3 insert new sections in the Army and Air Force Acts creating a new offence of failure to provide a sample where requested under the new power (i.e. after a serious incident). This offence is designed to reinforce the power under clause 34 to request that samples be taken.

133. Paragraph 4 amends the provisions which apply Service law to civilians, so that this new offence also applies to persons employed by or in connection with the armed forces whilst they are subject to the SDAs. It does not apply to Service dependants, although they are subject to the SDAs while abroad. These changes are consequential upon and reflect the provision of clause 35 which defines those to whom the new provision applies.

134. Paragraphs 5 to 7 make corresponding provision in the Naval Discipline Act. Paragraph 5 also removes the reference to "on conviction by court-martial" in section 12A of that Act so that offences of refusal to provide a sample may be dealt with summarily by the commanding officer (as is the case in the Army and Royal Air Force). It also amends the definition of drug testing officer in section 12A, so that references to a non-commissioned officer are replaced with the corresponding Royal Navy ranks.

Clause 35: Interpretation of section 34

135. This clause contains definitions of "drug" and "sample" for the purposes of clause 34. It also provides that the Secretary of State may make an order specifying that other samples may be taken, but this power is restricted to samples which can be taken from the mouth or are non-invasive, for example, saliva or perspiration.

136. The clause also defines who is subject to clause 34 and relates the definition of the commanding officer in this clause to the definition in other sections of the SDAs.

137. Orders under this clause will be made by statutory instrument subject to the negative resolution procedure.

Clause 36: Miscellaneous amendments

138. This clause introduces Schedule 7 which contains a number of minor amendments.

Part I - Amendments of Sexual Offences (Amendment) Act 1992

139. The Sexual Offences (Amendment) Act 1992 provides for the anonymity of alleged victims of certain sexual offences. Broadly, the purpose of this Act is to prevent the publication of anything which may identify the complainant.

140. The purpose of the Schedule is to ensure that the 1992 Act applies to relevant offences tried under the SDAs world-wide. Paragraphs 1 to 3 amend the 1992 Act to provide that the provisions of that Act apply to corresponding offences under the SDAs, to amend the provisions relating to the definition of an accusation so that it includes reference to the Service charges, and to include necessary definitions. Paragraph 4 amends the section in the 1992 Act dealing with courts-martial to take account of the changes mentioned above.

Part II - Abolition of office of Deputy Judge Advocate

141. The Lord Chancellor has not appointed any Deputy Judge Advocates for some years and does not intend to appoint any more in future. It was felt that there were no practical, jurisdictional or other reasons for distinguishing between the Deputy Judge Advocates and Assistant Judge Advocates General. Thus, any references in legislation to this post are now redundant, and the office is to be abolished. This is done by paragraph 5 of the Schedule. Paragraphs 6 to 10 make consequential changes.

Part III - Amendments of Reserve Forces Act 1996

142. Paragraphs 11 to 13 amend the Reserve Forces Act 1996.

143. Part IV of that Act sets out the obligations of members of the reserve forces who enter into special agreements relating to service. They may then be called out by notice. Section 31 allows the Secretary of State to terminate the agreement. Section 35 allows the Secretary of State to delegate certain functions. Paragraph 11 inserts a reference to section 31 in section 35 of that Act, so that the ability to terminate an agreement under section 31 may be delegated.

144. Section 41 of the Reserve Forces Act refers to persons who "have given" notice under subsection (1). A later subsection inadvertently refers to them as persons who "have been given" notice. Paragraph 12 corrects the reference by removing "been" from the later subsection.

145. Paragraph 13 amends section 125 of the Reserve Forces Act 1996, which provides that members of the reserve forces are not liable to punishment for absence when voting in specified elections. The provision is expanded to include in the list references to elections for members of the National Assembly for Wales and the Northern Ireland Assembly.

Part IV - Amendments consequential on section 21(5) of Human Rights Act 1998

146. On 24 July 1998, the then Minister of State for the Armed Forces announced that the death penalty for Service offences would be abolished (Commons Hansard Col 1374). This policy was given effect in a general provision in section 21(5) of the Human Rights Act 1998. Paragraphs 14 to 22 remove certain references to the death penalty from the SDAs and, where these relate to specific offences, replace them with references to a penalty of imprisonment or any less punishment authorised by the Act.

Part V - Queen Alexandra's Royal Naval Nursing Service and former Women's Royal Naval Service

147. Nursing services for the Royal Navy and the Royal Marines are provided by Queen Alexandra's Royal Naval Nursing Service (QARNNS). Until 31 March 2000 QARNNS was a separate Service from the Royal Navy. Although QARNNS personnel had already adopted the Royal Navy's badge and rank structure, and Royal Naval terms and conditions of service, one consequence of their being a separate Service was that they had no reserve liability - once they had left the Service they could not be recalled to duty in time of crisis. In order to provide this reserve liability, QARNNS was incorporated into the Royal Navy on 1 April 2000. This was similar to the incorporation of the Women's Royal Naval Service (WRNS) into the Royal Navy in 1993, the only difference being that QARNNS became the nursing branch of the Royal Navy and retained the 'QARNNS' name in the title of that branch. Personnel who were already in QARNNS before 1 April 2000 have preserved rights to their original terms of service.

148. Because of the incorporation of QARNNS into the Royal Navy, most references in legislation to the QARNNS are redundant. Paragraphs 23 to 30 amend the legislation containing such references. They remove references to the QARNNS in the armed forces' legislation and in other Acts. They also remove certain obsolete references to the WRNS.

Part VI - Other amendments

Marriages in Service Chapels

149. Section 68 of the Marriage Act 1949 details the categories of people who are eligible to be married in Service chapels. At least one of a couple wishing to be married in such a chapel must belong to one of these categories, the principal of which consists of serving and former members of the armed forces. Daughters of eligible individuals are also eligible, but their sons are not. Moreover, the section expressly excludes step-daughters from eligibility.

150. Differentiating between members of the family in this way is no longer considered justifiable. Paragraph 31 amends section 68 of the 1949 Act to provide that sons, step-daughters and step-sons of qualifying personnel are also eligible to be married in Service chapels.

Retirement age for assistants to Judge Advocate General

151. Paragraph 32 increases the retirement age for the Vice Judge Advocate General and Assistant Judge Advocates General from 65 to 70, to bring it into line with the retirement age for judges in civilian courts. The retirement age for the Judge Advocate General is already 70.

Sentence where penalty fixed by law as life imprisonment

152. The current provisions in the SDAs provide that persons convicted by courts-martial of Service offences corresponding to murder or genocide are liable to imprisonment for life. This phrase does not make it clear that the sentence is a mandatory sentence of life imprisonment. Paragraphs 33 and 34 amend the existing provisions to make this clear.

Qualification for appointment as a judicial officer

153. The SDAs currently specify that a person may be appointed as a judicial officer if he is qualified to be appointed as a judge advocate or if he has had, for a minimum of five years, rights and duties in a Commonwealth country or colony similar to a barrister or solicitor in England or Wales and is subject to punishment for breach of professional rules. Paragraphs 35 and 36 widen the range of eligible persons to allow persons in Commonwealth countries and colonies with functions equivalent to certain types of judges in England and Wales to be appointed as judicial officers as well.

Evidence given before boards of inquiry

154. Boards of inquiry (BOIs) are used by the Services as a mechanism to help establish the cause of accidents. To encourage witnesses to give full and frank evidence without the worry of self-incrimination, the SDAs currently provide that evidence given before BOIs is inadmissible in disciplinary proceedings (unless those proceedings are for perjury in relation to evidence given at the inquiry). However, this exclusion of evidence only applies where a person is giving evidence before a BOI set up by his own Service. A member of one Service can find himself giving evidence before a BOI set up by another of the Services. Paragraphs 37 and 38 amend the Army and Air Force Acts to ensure that evidence before any BOI cannot be used in disciplinary proceedings. There is no corresponding amendment to the Naval Discipline Act as the Navy provisions for BOIs are in regulations. It is intended to make an equivalent change to those regulations.

Compensation for loss

155. Paragraphs 39 and 40 amend the Army and Air Force Acts and the Naval Discipline Act respectively, so that the power to order Service personnel to pay compensation for damage to public or Service property caused by a wrongful act or negligence by that person only applies where that person is still a member of the Services. An order made during an individual's service would still apply after the conclusion of that service, but any attempt to recover compensation which was not the subject of an order made during service would have to be made through the civil courts.

Redress of Complaints

156. The SDAs allow a person subject to Service law to make a complaint (and seek redress) through his chain of command about any matter relating to his service. There are exceptions to this right where an alternative remedy is available, for example, where an appeal from a decision of a court-martial to the Courts-Martial Appeal Court may be made. At present, the legislation does not exclude the right to complain in respect of the decisions of judicial officers and judge advocates when exercising their powers to authorise continuing custody or hearing cases before the summary appeal court or, under the provisions in Part II of this Bill, granting search warrants. It is considered inappropriate for the chain of command to be able to review judicial decisions in such circumstances, so paragraphs 41 and 42 exclude such decisions from the redress provisions.

157. Paragraph 43 also applies to the redress procedure referred to above. It will give officers and other ranks attached to another Service the right to seek redress under the SDA of the host Service. As the Naval Discipline Act does not contain the same restriction on the right to redress, this amendment is only necessary in the Army and Air Force Acts.

Civilian contractors attached to or accompanying a force

158. The categories of civilians who are subject to Service law whilst overseas are set out in the SDAs. These categories include civilian contractors, but there is some doubt whether the definition includes self-employed persons. Paragraphs 44(a) and 45(a) clarify the definition of contractors to include persons with their own businesses. Civilian contractors become subject to Service law when authorisation is granted by the Defence Council. To provide some flexibility, paragraphs 44(b) and 45(b) provide that the power to grant these authorisations may be delegated by the Defence Council.

Interpretation of references to "Royal Air Force Police"

159. In the Royal Air Force, commissioned officers exercising the powers of Service police are referred to as provost officers. Those persons referred to as RAF police do not hold a commission. However, the distinction is not clear to persons outside the RAF. Paragraphs 46 and 47 insert a definition of the Royal Air Force Police in the SDAs to clarify that it includes provost officers. Paragraph 48 makes a related amendment to the Armed Forces Act 1996.

Interpretation of references to a "constable"

160. The definition of "constable" in each of the SDAs includes persons having powers corresponding to those of a constable. Because Part II of the Bill gives Service police certain powers similar to those of a constable, it could be argued that they would fall within this definition. Paragraph 49 therefore amends the definition of constable in the SDAs to make it clear that the expression does not include Service police ("provost officers" as they are termed in the SDAs).

Application to civilians

161. Paragraphs 50 to 53 make miscellaneous amendments to the SDAs in relation to civilians subject to Service law. Paragraph 50(2) changes the current provisions of the Army and Air Force Acts which allow civilians to be tried by Service courts for attempts to commit certain offences, so that they may also be tried for aiding and abetting any of those offences. The Royal Navy already has this provision. Paragraph 50(3) amends the provisions in the Army and Air Force Acts defining commanding officer in relation to civilians. These are currently too narrow in that they only apply to provisions relating to custody and investigation of offences. They do not apply to other existing provisions referring to commanding officers. Paragraph 50(4) and paragraphs 51 to 53 rectify an anomaly arising from a previous amendment to the SDAs. The intention was to disapply a time-limit in relation to breaches of a community supervision order, but the effect of the earlier amendment was to disapply the time-limit in relation to other offences as well. These amendments will give effect to the original intention.

Arrest of civilians whose sentence is deferred

162. Paragraph 54 amends paragraph 2A of Schedule 5A to the Army and Air Force Acts in relation to Standing Civilian Courts. The existing provisions refer to the powers of directing officers to order arrest. Directing officers no longer exist, so that reference is being replaced with a reference to the magistrate hearing the case, as are other consequential references to the directing officer or his superiors. The paragraph also amends a reference to civilians being subject to Service law with wording to reflect the fact that they are only subject to certain provisions of that law.

Right of appeal to Courts-Martial Appeal Court

163. Paragraph 55 makes various amendments to the Courts-Martial (Appeals) Act 1968. It replaces a reference to "those Schedules", which identified the relevant Schedules by reference to a now repealed provision, with wording which simply lists the relevant Schedules.

164. Paragraph 55 also clarifies the provisions dealing with timing of appeals to the Courts-Martial Appeal Court (CMAC). Court-martial decisions are automatically reviewed by an internal reviewing authority, although an accused may petition for a review as well. At present, an appeal to the CMAC may not be submitted until the end of the prescribed period for petitioning for review or until the accused has been notified that the petition has not been granted, whichever is earlier. These provisions do not state what is to happen if the reviewing authority substitutes an equivalent or lesser sentence on petition, before the end of the prescribed period. The amendment to section 8(2) makes it clear that an appeal may be brought. A further change relates to late appeals. Currently, the CMAC may allow an appeal to be brought outside the prescribed period, but only if the accused has already petitioned for a review. But all decisions are reviewed, even if the accused does not petition for review. If, after such an automatic review, a convicted person wishes to appeal out of time, he must make a fictitious petition for review. This anomaly is being removed.

Children in respect of whom protective orders may be made

165. Paragraphs 57 and 58 relate to sections 17 and 19 the Armed Forces Act 1991, which deal with the protection of children in families with the armed forces abroad. These provisions give certain officers power to make assessment and protection orders in respect of certain children in emergencies. However, the definition of which children may be made the subject of these orders appears to exclude certain categories, for example, those who are staying with, rather than residing with, the families of persons subject to the SDAs. These paragraphs replace the existing provisions with ones which apply the power to any child who is residing, or staying, with such a family abroad.

Amendment relating to abolition of naval disciplinary courts

166. Paragraph 59 is consequential on the abolition by clause 18 of naval disciplinary courts.

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Prepared: 12 December 2000