Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 380 - 399)



  380. Discharged, not necessarily tested.
  (Brigadier Cottam) From the point of view of the Army it is worth bearing in mind that the tests are applied by the chain of command, we do not impose on the chain of command who should be tested and where, and, therefore, it is very much driven as a matter of leadership and example within the chain of command and we arrive at this relatively steady state of positive disclosure as a result of the testing and of discharge.

  Chairman: Thank you very much indeed, that is very helpful. Mr Randall, would you care to come back on this?

Mr Randall

  381. If we take alcohol and we take an incident involving a motor vehicle, the testing is not for the level of alcohol it is just for the presence of alcohol, is that correct?
  (Mr Miller) It would be necessary to establish the level of alcohol in order to make the judgment as to whether alcohol was likely to have impaired the judgment.

  382. Would that level be the same as that under civilian law, the same thing as if you are driving a car and you are pulled over and breathalysed, you are either above or below?
  (Mr Miller) We are not talking about discipline in this so in that sense there is not a hard line after which you get the book thrown at you but, nevertheless, in practical terms it is likely that we would use that as a bench mark.

  383. So who would make the decision as to whether alcohol was a contributory factor or not?
  (Mr Miller) That would be an issue for the Board of Inquiry in the light of the results of the test.
  (Air Commodore Collier) It would be for the inquiry to take evidence as to what implications there might have been for that level of alcohol found in a person who may or may not have contributed to the cause of the incident or accident.

  384. Rather than just finding whether alcohol is present, "I smell alcohol on your breath, end of story", there would be a scientific level?
  (Air Commodore Collier) As relevant evidence for the inquiry to take into account with relevant expert evidence also taken.
  (Mr Miller) At the moment the best we have is the smell of alcohol on the individual's breath, which is not adequate.

  385. Presumably in all these things there would be more of a gap between testing? I appreciate this is not the same thing as with the breathalyser because that is on the spot, but there is a process that you would have to go through and from what I understand from Mr Keetch, I am not an expert on these things, the cannabis level would be traceable for some time whereas alcohol goes down over a period.
  (Mr Miller) Yes. Clearly the evidence that the Board of Inquiry would consider would include the time that elapsed between the incident and the test.

Mr Davies

  386. I think there is a clear contradiction emerging from the testimony we are receiving on this particular Clause. Mr Miller said that the results of such tests related to particular incidents, as provided for here, would not be used for disciplinary purposes and Brigadier Cottam said this is a matter of health and safety and not discipline. We have just heard how if somebody shows up positive on these tests they would be dismissed from the Services which means it is being used for disciplinary purposes and I think we ought to be quite clear which it is.
  (Mr Miller) I am sorry, what I intended to say was that they would be discharged and that is an administrative discharge. That is exactly the same regime as emerges from the random drugs testing. It is discharge, it is not disciplinary dismissal. The point may be a fine one but, nevertheless, it is the legal position.

  387. They are the same. The result is the individual's Service career comes to an end, that is the important thing. We are simply, if I may say so, playing with words here. I am not against introducing these tests, let us be quite clear about it, but it would have very clear direct disciplinary implications for anybody involved in an incident if they showed up positive on the test.
  (Mr Miller) I am sorry, but discharge as a result of a finding of drugs is not a disciplinary issue. It is still discharge, I fully accept, and the effect of this clearly is to probably marginally increase the risk of someone who has been taking drugs being detected.

  Mr Davies: It is simply a disciplinary issue. A disciplinary issue is an issue involving punishment and the ultimate punishment in the Services is to be dismissed from the Services and this is a disciplinary matter. This is a test, the results of which will have disciplinary consequences. I think we are quite clear about that now. I think it is, therefore, very deceptive to start describing this purely as a health and safety measure or one having no disciplinary implications because it clearly does have disciplinary implications.

  Chairman: I think we are in danger of getting into a court room discussion between lawyers here. My understanding is that it is made clear to anyone joining or signing up for the Armed Forces that any use of illegal drugs is a matter that is not permitted and the consequence will be the administrative discharge from the Armed Services.

  Mr Davies: And anybody taking part in these tests knows if they show up positive they will be dismissed.

  Mr Key: Discharged.

  Dr Moonie: I think you have to use the word "may" and not "will".

  Chairman: I think the points have been made here.

  Mr Davies: This is an important matter because the Minister says—

  Dr Moonie: It is at the discretion, depending on the rank of the member of the forces concerned, whether discharge is carried out or not. I think it is important to make that clear.

  Mr Davies: The results are exactly the same as failing a random test.

  Dr Moonie: Absolutely.

  Mr Davies: The disciplinary consequences are the same.

  Dr Moonie: Yes. All I am saying is it is not "will" be discharged, it is "may" be discharged.

  Mr Davies: And that applies equally to random tests. That was the point I wanted to establish. They both have the same disciplinary consequences, the random test or the incident related test that we are dealing with here.


  388. You have made your point clear, Mr Davies. Can I suggest we move on to Clause 35.
  (Mr Miller) This Clause is related to Clause 34 and sets out definitions such as who is subject to testing under the powers of that Clause, it provides for breath or urine test for alcohol and for a urine test for drugs. It allows us to provide by order that other oral or non-invasive samples, such as perspiration, may be taken for the purpose of testing. This allows for the possibility that a new workable test based, for example, on saliva may become available.

  389. Thank you. Any points or comments? No. Can we move on to Clause 36 and miscellaneous amendments.
  (Mr Miller) Clause 36, Chairman, introduces Schedule 7 which contains a number of minor amendments. There are a total of 26 and while, on the one hand, I do not wish to waste the Committee's time by going all the way through them, equally I do not wish to leave myself open to the accusation that I am trying to slip something through by not drawing attention to it. I think I am in your hands as to whether you want me to go through all the points in detail.

  Chairman: I will ask Members of the Committee if they wish to go through it in detail?

  Mr Key: No.

  Chairman: Thank you, Mr Key. We will raise any particular areas of concern. Do you wish to start off, Mr Key

  Mr Key: I am grateful. Could we look at the section dealing with the redress of complaints. I certainly have a constant trickle of problems arising from the redress of complaints and I would be grateful if you could start by explaining how this Bill refers to the matter?
  (Mr Miller) Can you give me the details of the reference?

  Mr Key: It is in the notes provided at paragraph 156. It refers to paragraphs 41 and 42.

Mr Davies

  390. Subsection (41) of the Schedule.
  (Mr Miller) The point here is at the moment an individual may seek redress against certain decisions arising from a court-martial.

Mr Key

  391. Take your time, please.
  (Mr Miller) I do beg your pardon, Mr Key, I have lost my place.

  392. It is on page 77 of the Bill at Schedule 7, paragraph 41 of Schedule 7.
  (Mr Miller) I do beg your pardon, I have now found my point. As I say, at the moment the Acts allow a person subject to Service law to seek redress about any matter relating to its Service. This currently includes the right to complain in respect of decisions of judicial officers and judge-advocates who are exercising powers in relation to custody or where hearing cases before the Summary Appeal Court. As the legislation stands, the right to redress would also apply to the new procedures for search warrants provided in this Bill. We think it inappropriate for the chain of command to be able to review judicial decisions, which is what redress effectively amounts to, so these amendments exclude such decisions from the redress provisions. A further amendment to the redress procedure will give officers and other ranks attached to another Service the right to seek redress under the Service Discipline Acts of the host Service. This is a complication that arises where you have servicemen of one Service serving in the unit of another. There has been some discussion as to how appropriate redress should be provided in these circumstances. It may be more relevant for them to seek redress under the provisions of the Service to whom they are attached and we wish to open up that possibility. I suppose I should, for completeness, add the point that the reason that this section refers only to the Army and Air Force Acts is because the Navy Discipline Act does not contain equivalent provisions.

  393. Has it been necessary to amend the procedure for redress of complaints as a consequence of the passing of the Human Rights Act? Is that why this is before us now?
  (Mr Miller) No, that is not why this is before you now. I am sorry, in answer to the wider question I was running quickly through my mind the changes that we have made. Yes, in recent years there have been some changes to the redress procedure to reflect the Human Rights Act. We have brought in a measure of disclosure, for example.

  394. I think at a practical level it is important to see if this particular measure as proposed is going to improve the situation, improve the lot of the serviceman or woman who feels aggrieved by the process. I know it is hugely complex, I have had some very complex cases in my own constituency which have run the whole course. There is a feeling amongst Service personnel that if they get as far as needing to seek redress of complaint, the first complaint is always that it takes so long for it to happen, and we are talking years before the Defence Council will make a decision on an individual case. I just wonder if there is going to be any improvement in that as a result of this?
  (Mr Miller) As a result of this I think there would be no impact at all on that. We have been attempting to speed up the procedure for some time with, I am bound to confess, relatively little effect to date. It is something we will continue to work at.

  395. I wonder if any of the servicemen present would wish to comment on their individual Services and how it works?
  (Commodore Bryant) If I may, Chairman, most complaints are, in fact, dealt with either at unit or immediately above unit level. We are only talking about those few that do get through to the Navy Board or the Defence Council but I fear those do take an unconscionably long time.
  (Air Commodore Collier) The main provision here is in respect of judicial officers because there is a proper judicial process where an individual feels that a wrong decision has been made, namely the legal appeals procedure, and I think that is the prime purpose of this, to make it quite clear that that is the correct and only avenue for querying the decision of a judicial officer and not the redress agreements which would then invite commanding officers to try and comment upon the decisions of the judicial officer. That is the main purpose here. The secondary point is to make it much clearer to an individual in those relatively rare but increasingly possible situations where they are working with another Service that their rights to redress can be channelled through the most efficient and appropriate way. That is also precisely to make sure that in those relatively complex cases there is no need for delay because of working through one Service's channels where people who actually have the power to grant the redress that has been asked for are in another Service. We too have the circumstance where the vast majority of redresses are dealt with relatively quickly. This is where the individual is not satisfied with the initial results and those, of course, will be the ones with which you are more familiar because your constituents will bring them to you. They are inevitably complex. The provisions that we have had to make, in fairness to both the individuals who make the complaint and those who are complained against, that they should have full disclosure of all the advice that is given to the deciding officers necessarily for the protection of those individuals built in quite a complicated procedure which does take a long time. We do strive to progress cases as quickly as possible and remind all deciding officers that they must do so as quickly as they can in fairness to the individuals, but we do have to comply with those disclosure requirements that do take time.
  (Brigadier Cottam) I concur with what has just been said. From the Army's point of view we are hugely conscious of the volumes of courts-martial and, to a lesser extent, of redress that we have to deal with. We have established an officer's standards of casework managed by a one star officer specifically to try and drive down delay in both those areas. We are addressing the issue. We hope the solution that we are putting in place will achieve that for just the sorts of reasons that led to us answering this question today.

  396. I wonder if it would be possible for us to have a note, it is not fair to expect you to know this now, on the number of applications for redress of complaint in each of the three Services and how far they get? How many get to the Defence Council and ultimately how many get to Her Majesty The Queen?
  (Mr Miller) We can certainly put a note together which will provide that information.[3]

  Chairman: Thank you very much, we would be grateful.

Mr Randall

  397. Can we look in the Explanatory Notes at 165, referring to paragraphs 57 and 58, children in respect of whom protective orders may be made. As far as I can see that is just extending the powers for not just Service children but they may be people who are visiting. I wonder if you could let me know who would be making these protection orders and how that works?
  (Mr Miller) It is, indeed, extending it, as you have said.
  (Air Commodore Collier) By and large it will be commanding officers who have these powers in overseas locations. It is laid down in regulations and the statute, I believe, who should make the decision of a protection order and who can apply for a protection order.

  398. If it will be a protection order in the case of somebody visiting, a protection order from whom? Who they were staying with or their parents at home if they have come on holiday to play with their chums and suddenly the parents, the Service people, are very worried because they have seen various things going on? Would it be in respect of what was going on back home or would it be what is happening abroad, if you like?
  (Air Commodore Collier) These cases are so rare that I cannot answer that question from my personal experience. My understanding is that the protection order could be applied in a number of different circumstances and it would be clear in the protection order what it was.
  (Mr Miller) Clearly the expectation when this was being drafted was that we were dealing with cases where immediate protection would be needed which in those circumstances must amount to either the family they are staying with or others in the area.
  (Mr Morrison) Section 17 of the Armed Forces Act 1991, which is the relevant section, does not say from whom the need for protection arises. The key test is simply to consider whether there is reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm. It is not a question of limiting it to the parents at home or parents with whom they are staying. That general test has to be looked at by the officer designated to take this decision.

  399. Just to give you an example: say we have got a child who is on holiday with chums, who is just about to return back to the UK and obviously something is very wrong, the child does not want to go back or whatever, and in the course of conversation they find out that something is desperately wrong with the home situation. What would happen then? Would it be that the Service side would immediately put the protection order on and then refer it to the social services back in the UK? What would happen in those circumstances?
  (Mr Miller) These are always difficult, of course, because you are looking at judgments in the individual circumstances. I would expect contact to be made with social services in the child's home area and for them to be left to deal with it. It is conceivable, I suppose, that the situation would be so urgent that the only solution would be an order from the Service authorities and clearly one would expect them to do so if that was necessary to protect the child.

3   See Appendix 6. Back

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