Examination of Witnesses (Questions 345
THURSDAY 25 JANUARY 2001
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
(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.
348. I think you said it would be a convenience
to take it earlier rather than waiting presumably for the next
(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
(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?
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 isand tell me if
I have misunderstood itis 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.