Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 345 - 359)




  345. Mr Miller, can I welcome you and your colleagues once again to this Committee meeting and say that we certainly hope we will be able to complete our initial evidence taking from you this morning although, as you are already clear, there are matters that the Committee do want to follow up and do want further information from you in respect to different parts of the Bill. What the Committee has agreed is that we will start this morning with hearing from you and raising our points on Part V of the Bill starting with Clause 33, and that once we have completed Part V we will then return to further consideration and discussion of Clauses 31 and 32. So can I ask you to open up on Clause 33 please.

  (Mr Miller) Certainly, Madam Chairman. Before I do so I should mention I have one witness in the group today whom you have not seen before who is Mr Fuller who is the Director of one of my divisions responsible for conditions of service and particularly the disciplinary system. He has the central remit for that as opposed to a single Service remit.

  346. Thank you, Mr Miller.
  (Mr Miller) Clause 33, Madam Chairman, is the clause which I referred to very early in the evidence on the point that at the moment we sometimes find the need to fit those changes which require some amendment to the Service Discipline Acts into the five-year framework a difficulty. There are some issues where really it would be a considerable convenience to be able to take action rather earlier. This clause is therefore aimed at that. And the intention is that the Secretary of State should be given powers to amend by Order issues that arise in relation to unnecessary differences between our system and the civilian system. The whole point about this is to try and keep the Service system in line with decisions that Parliament makes in relation to the civilian legal system. The power set out in Clause 33 will allow us to use secondary legislation as a means of adopting equivalent provisions to those contained in any future criminal justice legislation without having to wait for the next five yearly Bill. The clause proposes that Orders introducing such changes would generally be subject to negative procedure but there may be occasions where it is necessary to amend primary legislation. The Bill will only permit this in order to make the Services' provisions equivalent to the new civilian criminal justice provisions and, if an Order amends primary legislation, Clause 33 provides that the affirmative procedure is to be used.

  347. Thank you, Mr Miller. Can I ask you whether this has become a particular difficulty in the last five years and whether you can give any particular example of something which has happened, some change that has occurred in civilian law which it would be desirable to try and very rapidly implement and take into the military aspect of things? Why are these enhanced powers necessary at this time when they have not existed before?
  (Mr Miller) I think in one sense, Madam Chairman, I need do very little more than refer to a large number of the earlier clauses in this Bill where we have been talking about steps to bring the Service procedures into line with the Police and Criminal Evidence Act of 1984, something like 16 years behind the drag curve.

Mr Randall

  348. I think you said it would be a convenience to take it earlier rather than waiting presumably for the next quinquennial review?
  (Mr Miller) Indeed.

  349. Do you think there will be a conflict at any stage with the law that would apply to civilian Bills or Acts which would not necessarily be required by the Services to be taken into military law?
  (Mr Miller) I can conceive that it may happen that the needs of the Services, the requirements of operational effectiveness would mean that it would not be appropriate to take into Service law something that had come into civilian law, and in that case clearly we would not proceed then to use this power.

  350. So where would the advice or the impetus come from for one of these amendments? Would it come from the Services themselves or would it come from the Department or would it come from the Home Office? Where would the impetus come from? Obviously the Secretary of State is the person who puts the powers in but I do not suppose he or she will be going through every little nuance.
  (Mr Miller) In the way the system works at the moment, I think the initial suggestion that something should be done might come either from the Services as a result of practical experience or from my own staff because we, at first blush, can see no good reason why a right extended to a civilian should not also be extended to a Serviceman.

  351. But ultimately it would be for the Secretary of State to decide?
  (Mr Miller) The decision clearly is for Ministers.

  352. If there was pressure to put something in and the Services were not too happy about it, having received representations the Secretary of State would be the ultimate arbiter, or am I being naive?
  (Mr Miller) No, I think that is perfectly fair. Most of these things, to be honest, are dealt with at a much lower level. It would be very unusual I think for that sort of issue to remain in dispute between my own area and the Services. We would reach an agreement and that would no doubt be reflected in advice that went to the Secretary of State.

  353. I notice in here, the power of criminal courts to place in custody young offenders. Is there a particular problem in the Services with young offenders?
  (Mr Miller) Perhaps I might ask my Service colleagues to comment on that. Certainly there are in the Services some individuals who would be classified as young offenders if they were convicted, but I am not conscious of a particular problem.
  (Air Commodore Collier) This is not so much to do with potential problems with Servicemen and women but more to do with those civilians who may be subject to Service Discipline Acts in certain circumstances, serving overseas for example, and it is more likely in those circumstances that a young offender might need to be dealt with under provisions that brought in powers already decided by Parliament.

  354. Currently for those young people who would be affected under civilian law is the law much different for them? Have they got different rights?
  (Air Commodore Collier) I would defer to Mr Morrison.
  (Mr Morrison) What Service law does not have is the new types of provision that have been included in the Act which you referred to. There are new types of Orders that can be made called Detention and Training Orders and there is no equivalent of those in Service law, but it is not a straightforward matter to slot these into existing provisions. There is not a major difference in the whole system but the law has moved on in the 2000 Act, the Powers of the Criminal Court (Sentencing) Act, and that does need to be taken into account to bring the treatment that has been mentioned (particularly young offenders and families who are subject to Service law whilst abroad) into line with the new change in the system.

  355. I have no great knowledge but I presume the provision makes it that there have to be various people present for young offenders. Is that a problem for the Services? Have they got the personnel trained? Presumably it is quite a rare event, as Air Commodore Collier said. I am just wondering how the Services would be geared up to deal with it.
  (Brigadier Cottam) Madam Chairman, to take the example of Forces in Germany we have a requirement for the statutory provision of welfare, for example child protection, which is really what we are talking about here I believe, and it is well understood and there is a very structured welfare organisation in Germany to provide statutory and non-statutory welfare. On the statutory side it provides exactly the kind of support to which we are referring in terms of the law so that people can receive just the sort help that they need. I am just being reminded that we do have a system of Service probation officers in Germany who answer to the Home Office Inspector General for Probation, so we do have a proper structured system and therefore the kind of amendments that have being suggested and alluded to we would be able to keep pace with in terms of the structures that we have in place to support people who get into the situations which we are alluding to.

  356. Germany is perhaps a special case. Would you be able to say everywhere where there are Armed Forces personnel living with their families such provisions would be available?
  (Brigadier Cottam) Yes we do. We have statutory welfare support in other areas, not all provided under this same scheme, but there are very similar schemes in other cases. For example, SSAFA provides some of the statutory welfare workers and that is not the voluntary part of SSAFA, it is bought-in professional help, and we are very strict and careful about that, and I am sure that is reflected in the other Services.

  Chairman: That is very helpful. Mr Davies?

Mr Davies

  357. Mr Miller, this clause, as I read it, and I do not know if I read it correctly, seems to me to be objectionable in principle. What I think its effect is—and tell me if I have misunderstood it—is that it provides for any change in the civilian law in these areas specified in sub-Clause (2) to be automatically carried over into the Services into military law at the discretion of the Secretary of State, and that includes any changes which Parliament enacts by way of primary legislation, so that primary legislation would automatically be transposed into military law at the discretion of the Secretary of State. That is the position, is it not?
  (Mr Miller) The clause would enable the Secretary of State to bring into effect into Service law, subject usually to the negative instrument procedure but in certain circumstances the affirmative procedure, where Parliament had decided changes were appropriate in civilian law and the Secretary of State had reached a judgment that it would be appropriate to extend that to the Services.

  358. You know about the hesitation a lot of us here have about secondary legislation in the first place but, leaving that aside, it seems to me here that these powers to change primary legislation through Orders are absolutely unnecessary and absolutely wrong because, by definition, they will arise only in cases where Parliament has decided to make changes in the primary legislation affecting the civilian sector, so it is perfectly possible for Parliament at that point to say that they believe that change would also appropriately be made in military law (or not as the case may be) and on every occasion Parliament will have the opportunity within the same Bill to transpose such changes it is making in civilian law into military law. There may or may not be an excuse for secondary legislation when it is said that these may be detailed changes and it is very difficult to get primary legislation on to the floor of the House, there is a limited number of slots in the Queen's Speech and we want to prevent unnecessary delays and hold-ups and, if I may say so, the Civil Service in this country are past masters at developing that particular line and using that excuse for all its worth, and some of us think for rather more than it is worth. On this occasion the fundamental basis of that excuse does not exist because we are only envisaging situations where Parliament is examining a change in the relevant legislation in the civilian sector. It only requires an amendment or additional clause in that Bill to have the effect of ensuring that those corresponding changes are incorporated simultaneously into the relevant military law. Parliament can then decide itself, as part of its consideration of the change in the civilian arrangement, whether or not such a change is appropriate in the military sector.
  (Mr Miller) Unfortunately, of course, the incorporation of something like this into Service law is not always a simple and straightforward process. Because mechanisms differ in detail, because we do not always have the direct equivalent of certain appointments in the civilian legal system—

  359. Can you speak up a bit.
  (Mr Miller) I was really pointing out that the Service system differs often quite extensively in detail to what exists in civilian law so that the translation of proposals which are accepted into statute for civilians for the Services is not always a straightforward process, and it is for this reason that we are seeking these powers. We have found in practice in the past that it is necessary to consider the Service position separately, often at rather greater length which is, as I say, why rather than the Police and Criminal Evidence Act containing provisions we have had to bring in our own and we have done so in the context of the current review.

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